Executive Summary: Key Legal and Evidentiary Issues

• Associate Judge Berthaudin dismissed the plaintiff's action for long delay under King's Bench Rule 24.02.
   
• Central to the ruling was whether the plaintiff's September 2025 supplemental affidavit of documents constituted a "significant advance" in the litigation.
   
• Invoices dated 2014 and 2015 contained in that affidavit had been in the plaintiff's possession all along, so the disclosure merely corrected an earlier deficiency rather than advancing the case.
   
• Alberta appellate authorities on supplemental affidavits of records were applied given the similarity between Manitoba's Rule 24.02 and Alberta's long-delay rule.
   
• Plaintiff argued the parties had expressly agreed to delay examinations for discovery pending resolution of a related Manitoba Hydro arbitration.
   
• Judge concluded no express agreement to delay existed, since the defendant's emails referred only to particularizing damages, not deferring the entire proceeding.
   

Facts of the case

Westland Construction Ltd. sued 4732449 Manitoba Ltd., carrying on business as Con-Restor Technologies, alleging that Con-Restor's work on a Manitoba Hydro construction project was defective and caused it damages. Both the head contract and the sub-contract were entered into in June 2013, and the dispute between the parties arose in October 2014. Westland filed its statement of claim on January 13, 2020, and Con-Restor filed its statement of defence on June 9, 2021. The parties exchanged affidavits of documents on August 18 and 29, 2022, and Con-Restor served an unsworn supplemental affidavit of documents on October 20, 2022. Discussions about scheduling examinations for discovery began that same month and led to several rounds of scheduling and rescheduling, with dates ultimately set for April 23 and 24, 2024. In April 2024, Con-Restor's counsel asked for documents relating to Westland's ongoing arbitration with Manitoba Hydro over the same project, and the examinations scheduled for that April were deferred following an exchange of emails between counsel. Westland served its own supplemental affidavit of documents on September 2, 2025, consisting of 148 invoices dated between February 7, 2014, and December 6, 2015. Con-Restor's counsel advised on October 17, 2025, that instructions had been received to move for dismissal, and the notice of motion to dismiss for long delay was filed on October 24, 2025.

Policy and legislative provisions at issue

The motion turned on Rule 24.02 of the Court of King's Bench Rules, which permits dismissal of an action where three years pass without a significant advance, subject to an exception under Rule 24.02(1)(a) where "all parties have expressly agreed to the delay." Because Manitoba courts have adopted the Alberta approach to interpreting the equivalent long-delay rule, the court relied on Alberta authorities, including Morrison v Galvanic Applied Sciences Inc, 2019 ABCA 207, and its own Court of Appeal decision in Buhr v. Buhr, 2021 MBCA 63, for the definition and functional test governing "significant advance." On the express-agreement exception, the court applied the Manitoba Court of Appeal's guidance in WRE Development Ltd. v. Lafarge Canada Inc., 2022 MBCA 11, which requires that any agreement to delay be clear, explicit, and not merely inferred from conduct.

Reasoning and analysis

Applying the functional test from Buhr and the underlying Alberta jurisprudence, the court asked whether Westland's September 2025 supplemental affidavit of documents narrowed the issues, completed document discovery, or otherwise increased the parties' ability to assess or resolve the case. The invoices disclosed predated the original affidavit of documents by seven to eight years and had been in Westland's possession the entire time; the court found they represented a correction of a deficient earlier disclosure rather than new information. This conclusion was supported by Alberta decisions on similar facts, including XS Technologies Inc. v. Veritas DGC Land Ltd., 2016 ABCA 165, Deja Vu Holdings Ltd. v. Securex Master Limited Partnership, 2018 ABQB 597, and Baron Real Estate Investments Ltd. v. Tri-Arrow Industrial Recovery Inc., 2025 ABKB 367, each of which held that supplemental disclosures of pre-existing documents did not significantly advance an action. The court also noted that even if the alternative start date of August 29, 2022 (Westland's original affidavit of documents) were used instead of October 20, 2022, the same three-year gap and outcome would result. On the second issue, the court reviewed the April 2024 email exchange in detail and found that Con-Restor's counsel had only stated it would not examine Westland's representative until damages were particularized, with no suggestion that the entire proceeding should await the Manitoba Hydro arbitration's conclusion. Westland's reliance on Sarbit v. Booth Fisheries (Canadian) Company for the proposition that silence constitutes assent was rejected, as Con-Restor's position had already been clearly and repeatedly stated. The court further observed that, even if an agreement existed, it would have covered only the deferral of examinations for discovery, not the litigation as a whole, and that Westland remained free to advance the matter by other means, such as setting it down for a pre-trial conference.

Ruling and overall outcome

The court concluded that three years or more passed without a significant advance in the action and that the parties had not expressly agreed to the delay, so the exception in Rule 24.02(1)(a) was not engaged. Associate Judge Berthaudin accordingly dismissed Westland Construction Ltd.'s action against 4732449 Manitoba Ltd., carrying on business as Con-Restor Technologies, for long delay. The decision states that Con-Restor would ordinarily be entitled to tariff costs, with an appointment for brief submissions available if the parties disagreed or had difficulty quantifying costs; no specific dollar amount for costs was set out in the decision.