Executive Summary: Key Legal and Evidentiary Issues

• Fernwood Developments Ltd, Brian Logue and Donna Logue applied to dismiss Justin Sturek's action under Rule 4.33 of the Alberta Rules of Court for want of a significant advance within three years.
   
• Both sides agreed the action was last significantly advanced on May 12, 2022, when the Fernwood Defendants served their sworn Affidavit of Records.
   
• Sturek argued that a November 2024 partial discontinuance against Carl and Lorraine Rusnell, and a January 2025 consent to a proposed Amended Statement of Claim, each independently advanced the action.
   
• The court found the discontinuance against the Rusnells was a genuine and significant advance because it narrowed the parties and issues in the litigation.


• The Applicants' consent to the Draft Amended Claim was held to provide relevant context but did not, on its own, constitute a further significant advance.
   
• Unsworn affidavits of records were criticized as an unwise practice, though this did not affect the outcome of the application.
   

Facts of the case

Justin Sturek sued Fernwood Developments Ltd, Carl Rusnell, Lorraine Rusnell, Brian Logue, Donna Logue and Phil Varley, alleging the defendants conspired to evict him and cut off his access to a custom clothing printing business, MountOlympress, that he operated with Varley. From June 2020 to August 30, 2021, Sturek ran the business with Varley out of four leased offices in a small commercial building in Industrial Heights, NE Edmonton. On August 30, 2021, Brian and Donna Logue, property managers employed by Fernwood, met with Sturek and, according to the claim, threatened and intimidated him into signing a voluntary surrender agreement and turning over his keys. Sturek lost access to the premises from that date, aside from limited later visits to retrieve personal items. Varley continued to reside at and operate the business from the premises and allegedly blocked Sturek's access to its financial and digital assets. Sturek sought unspecified damages for loss of property and income, aggravated, punitive and exemplary damages, and injunctive and accounting relief. The Rusnells and Logues denied any personal liability, while the Fernwood Defendants asserted Fernwood was entitled to terminate the lease because of alleged breaches by Sturek, including illegal drug and alcohol use, harassment of the Logues, security lapses, insect infestations, unauthorized alterations, unauthorized use as living quarters, and unauthorized subletting.

The claim was filed October 19, 2021. The Fernwood Defendants filed their Statement of Defence December 21, 2021 and Varley filed his February 15, 2022. Sturek served an unsworn Affidavit of Records on March 13, 2022, and the Fernwood Defendants served their sworn Affidavit of Records on May 12, 2022. A Notice of Change of Counsel for Sturek was filed August 9, 2024. Sturek's partial discontinuance against the Rusnells, on a without-costs basis and consented to by the Fernwood Defendants' counsel, was dated November 1, 2024 and filed November 8, 2024 [the source document lists both dates: paragraph 3(a) identifies November 8, 2024 as the filing date, while paragraph 11(g) identifies November 1, 2024 as the date of the discontinuance itself, filed November 8, 2024]. Sturek served a sworn copy of his previously unsworn Affidavit of Records on July 18, 2025. Between October 2024 and March 2025, Sturek's counsel circulated a Draft Amended Claim, which the Fernwood Defendants' counsel consented to on January 15, 2025, though Varley would not consent unless Sturek agreed to let Varley file a counterclaim. The Draft Amended Claim was never filed. Separately, the parties made limited, unsuccessful efforts between July and October 2024 to schedule Sturek's questioning, and Sturek sought Varley's Affidavit of Records between October 2024 and February 2025, with Varley noting in February 2025 that Sturek's own affidavit remained unsworn.

Policy and legislative provisions at issue

The application turned on Rule 4.33 of the Alberta Rules of Court, Alta Reg 124/2010, which requires the court to dismiss an action if three or more years have passed without a significant advance, unless a recognized exception applies. The court also considered Rule 5.5, which requires an affidavit of records to be served, and the reciprocal two-month obligation on defendants once a plaintiff's affidavit is served; Rule 5.6(1), which mandates that an affidavit of records take the form of Form 26 and be sworn; and Rule 5.10, which imposes a continuous obligation to disclose new records as they are found, created, or obtained.

Reasoning and analysis

Applications Judge Wanke explained that a significant advance under Rule 4.33 must move the action forward in an essential way, having regard to the nature, quality, genuineness and timing of the step, citing Patil v Cenovus Energy Inc, 2020 ABCA 385. The inquiry is functional rather than an assessment of the plaintiff's overall diligence, and partial discontinuances do not automatically qualify as significant advances, per Roman Catholic Bishop of the Diocese of Calgary v Schuster, 2019 ABCA 64. The Applicants argued the discontinuance against the Rusnells accomplished nothing, since the claim only implicated them as Fernwood's officers and one Rusnell would still need to be questioned as Fernwood's representative. Sturek countered that the Rusnells were named in the broader conspiracy allegations against "the Defendants," and pointed to Schuster and Patil as analogous cases where discontinuances or abandoned claims were found to be significant advances.

The court agreed with Sturek, finding the discontinuance narrowed the parties and issues, clarified his position, and improved the efficiency of the remaining litigation, noting that the possibility of personal liability for corporate officers is recognized at law, citing CHU de Québec-Université Laval v Tree of Knowledge International Corp, 2026 ONCA 209. The court reasoned that questioning a Rusnell as Fernwood's corporate representative is distinct from maintaining a personal claim against that individual, so the discontinuance still eliminated questioning on personal liability. The timing—coming after new counsel's file review roughly two years after the Fernwood Defendants' Affidavit of Records—supported its genuineness rather than suggesting it was a mechanical step to dodge a delay application. On the Draft Amended Claim, the court found it relevant context supporting the broader review that produced the discontinuance, but not an independent significant advance, since the discontinuance had already signalled that the conspiracy claim against the Rusnells was not being pursued. Sturek's reliance on Turek v Oliver, 2014 ABCA 327, was rejected, as the Applicants' consent did not amount to an agreement later breached by them; the onus remained on Sturek to advance the litigation. The court also observed, without effect on the outcome, that serving an unsworn affidavit of records is an unwise practice absent party agreement, does not satisfy Rule 5.5, and does not trigger defendants' reciprocal disclosure obligations.

Ruling and overall outcome

Applications Judge Wanke dismissed the application to strike Sturek's action for delay under Rule 4.33, ruling that the November 2024 discontinuance against the Rusnells constituted a significant advance of the action within the relevant three-year period, while the Applicants' consent to the Draft Amended Claim did not independently qualify. Sturek, the plaintiff and respondent to the application, was successful in defeating the dismissal application. No monetary award, damages, or costs were determined in this decision; the court directed that if the parties cannot agree on costs, they may make written submissions within 30 days of the decision's release.