Overview:
Patricia Hawreschuk appealed a decision dismissing her action for long delay under r. 4.33 of the Alberta Rules of Court. Her original 2009 claim involved deficiencies in a condominium unit causing mold and damages.
Key Points:
- Significant Advance:
- February 3, 2023: Judge Schlosser summarily dismissed claims against other defendants. This was deemed a significant advance.
- Respondent's Application: Filed on July 25, 2023, to dismiss for long delay, asserting no significant advance since December 19, 2019.
- Lower Court Decision:
- Judge Smart dismissed the action for long delay, not considering the February 3, 2023, order a significant advance.
- Appeal Considerations:
- Self-Representation: The court ensured fairness for the self-represented appellant.
- Late Filing: Appeal was filed 15 days late. An extension was granted due to the appellant’s lack of legal knowledge and no significant prejudice to the respondent.
- Standard of Review:
- Appeal was heard de novo (from the beginning).
- Grounds of Appeal:
- Dismissed: Appellant’s lack of legal knowledge, health issues, and COVID-19 delays were insufficient reasons against the long delay application.
- New Ground of Appeal:
- The February 3, 2023, summary dismissal order constituted a significant advance, invalidating the dismissal under r. 4.33.
Outcome:
- Appeal Allowed: The dismissal order was set aside.
- Costs Awarded: Appellant awarded $3,375 in costs.
Legal Principle:
A significant advance in an action under r. 4.33 is any material progress in the case, even if not directly involving the party seeking dismissal.
