Executive Summary: Key Legal and Evidentiary Issues

• The Court of Appeal of Alberta considered whether service of a supplemental affidavit of records constituted a significant advance in the action under rule 4.33 of the Alberta Rules of Court.
   
• Baron Real Estate Investments Ltd appealed a chambers judge's order dismissing its action against Stericycle and Riteway for long delay.
   
• A chambers judge had found that the supplemental records addressed only peripheral issues rather than the central question of land contamination and remediation costs.
   
• Baron argued that the chambers judge improperly narrowed the live issues in the pleadings and mischaracterized the significance of the supplemental records.
   
• Evidence from Baron's corporate representative indicated that many supplemental records were received incrementally over a multi-year period, though the source document gives differing timeframes for this.
   
• The Court of Appeal allowed the appeal, holding that the chambers judge erred by collapsing the rule 4.33 analysis with a summary judgment standard, and restored Baron's action.
   

Facts of the case

Tri-Arrow, a hazardous and non-hazardous waste disposal and treatment business, entered into a five-year lease with Baron beginning in February 2012, permitting Tri-Arrow to occupy Baron's land for tote cleaning, hazardous waste processing, and the storage, bulking and transfer of equipment, materials and supplies. In February 2013, Tri-Arrow's shares were sold to Stericycle, ULC, and the respondents Tri-Arrow, Stericycle, ULC, and Stericycle Inc. are referred to collectively as Stericycle. Riteway, the remaining respondent, provided vacuum truck services to Stericycle on the leased land. Following a dispute between Baron and Stericycle, Baron terminated the lease in April 2014, re-entered the land, locked Stericycle out, and seized vehicles. In June 2014, Stericycle obtained an order terminating Baron's security agreement under the lease, and the seizure was released. Baron filed a statement of claim in April 2015, an amended statement of claim in August 2015, and an amended amended statement of claim in April 2016, served on Stericycle, Riteway, and Alberta Production Machining Ltd (the latter took no part in the proceedings underlying this appeal). Against Stericycle, Baron sought over $12,000,000 in damages for breach of contract, negligence, trespass, nuisance, breach of the duty of honest performance, fraudulent or alternatively negligent misrepresentation, and diminution of value of the leased land, alleging improper handling, storage, and processing of hazardous materials resulting in contamination and related losses. Against Riteway, Baron sought approximately $2,000,000 in damages for negligence, trespass, nuisance, and diminution of value arising from spills in August 2013 and May 2014. Riteway's statement of defence, filed in May 2016, admitted providing services to Stericycle on those dates and that spills occurred, but denied the waste involved was regulated or hazardous and denied owing Baron any duty or causing any damage. Stericycle's statement of defence, filed in June 2016, denied all allegations of fraud, misrepresentation, concealment, deceit, and recklessness, denied any resulting contamination or damage, denied breaching the lease, and pleaded that Baron was estopped from relying on the lease having terminated it. Baron served its affidavit of records in December 2016, Riteway in January 2017, and Stericycle in March 2018. Questioning scheduled for September 2020 was postponed after Baron's counsel advised it needed time to prepare a supplemental affidavit of records, which was served on March 22, 2021. Many of the supplemental records were Tri-Arrow/Stericycle documents that Stericycle had not previously produced. Baron's evidence was that these records were received incrementally and in a disorganized fashion from a former facility manager between July 2016 and late 2019.

Policy and legislative provisions at issue

Rule 4.33(2) of the Alberta Rules of Court, Alta Reg 124/2010, provides that if three or more years have passed without a significant advance in an action, the court, on application, must dismiss the action as against the applicant. Because of Ministerial Order 27/2020, issued during the COVID-19 pandemic, the applicable three-year delay period was extended by 75 days. On August 3, 2021, Stericycle and Riteway applied under rule 4.33 to dismiss Baron's action, arguing that service of the supplemental affidavit of records did not significantly advance the action.

Reasoning and analysis

The applications judge, in Baron Real Estate Investments Ltd v Tri-Arrow Industrial Recovery Inc, 2023 ABKB 531, found that the supplemental records had a potentially significant bearing on the parties' pleaded positions, were not merely a housekeeping matter, and were not served as a last-minute pretext to keep the action alive; the rule 4.33 applications were dismissed. Stericycle and Riteway appealed, and a chambers judge, in 2025 ABKB 367, allowed that appeal. She accepted that the supplemental records were relevant and material to the pleaded issues but found they did not address what she identified as the central issue as of March 2021 — the extent of land contamination caused by Stericycle's operations and the cost to remediate — and characterized the records as relevant only to peripheral issues. She also found that most of the supplemental records predated Baron's original affidavit of records and that Baron had not adequately explained the delay in producing them. On further appeal, the Court of Appeal applied the standard of review from Housen v Nikolaisen, 2002 SCC 33, and the test for a significant advance articulated in Jacobs v McElhanney Land Surveys Ltd, 2019 ABCA 220, which asks whether anything occurring in the relevant period increased the parties' or the court's ability to assess the merits and settle or adjudicate the action. The Court held that the chambers judge erred by effectively determining that the supplemental records lacked significance because they would not, on their own, resist summary dismissal, improperly collapsing the distinction between a summary judgment assessment and the qualitative assessment required under rule 4.33. The Court also found the chambers judge erred in treating the creation dates of the supplemental records as equivalent to Baron's possession dates, overlooking evidence that Baron received many records incrementally from a former facility manager [at questioning, Baron's corporate representative stated he received the records "probably either late 2016 or beginning of 2017 until late 2019"; in a subsequent undertaking specific to records BAR007095–BAR010625, he stated they were received "incrementally between July 2016 and December 2019" — the source does not reconcile these two timeframes], and that Baron could not further particularize the receipt dates despite best efforts. The Court agreed with the applications judge that Baron's explanation for the timing of production was sufficient in light of the relevance and materiality of the documents.

Ruling and overall outcome

The Court of Appeal, comprising Slatter, Kirker, and Hawkes JJ.A., allowed Baron Real Estate Investments Ltd's appeal and restored its action against Stericycle and Riteway. The Court found that service of the supplemental affidavit of records on March 22, 2021 constituted a significant advance in the action, resetting the delay clock under rule 4.33. The Court did not condone the overall pace of the litigation and directed the parties to agree to a litigation plan or apply to the Court of King's Bench for directions to move the matter forward expeditiously. This decision resolved the procedural question of whether the action should be dismissed for long delay; it did not determine liability or quantify damages, and no monetary amount was ordered, granted, or awarded in this judgment. The amounts referenced in the document — over $12,000,000 sought from Stericycle and approximately $2,000,000 sought from Riteway — represent Baron's pleaded claims, not amounts adjudicated in this decision.