Executive Summary: Key Legal and Evidentiary Issues

• Defendants applied to dismiss the action under Rule 4.33 for long delay, arguing no significant advance occurred in over three years.

• Plaintiff served a Supplemental Affidavit of Records on March 22, 2021, containing over 7,000 documents, some in its possession before 2016.

• Trial-level judge found the new documents potentially significant to pleaded issues and dismissed the application for delay.

• On appeal, the court found the documents did not address core issues of contamination and remediation, thus failing the Rule 4.33 threshold.

• Plaintiff’s explanation for delayed production of records was found inadequate and insufficiently detailed.

• The appeal was allowed and the action dismissed for long delay as the records did not significantly advance the litigation.

Facts and procedural background

Baron Real Estate Investments Ltd. (“Baron”) entered into a lease agreement dated December 6, 2011, with Tri-Arrow Industrial Recovery Inc. (“Tri-Arrow”) for a five-year term commencing February 1, 2012. Tri-Arrow was engaged in hazardous and non-hazardous waste disposal and treatment. The lease required Tri-Arrow to remediate any damage caused by its operations on the leased lands.

In February 2013, Tri-Arrow was purchased by Stericycle ULC. The interests of Tri-Arrow, Stericycle ULC, and Stericycle Inc. were aligned, and these entities are collectively referred to as “Stericycle.”

On April 24, 2014, Baron terminated the lease, re-entered the lands, locked out Stericycle, and seized vehicles. On July 7, 2014, Stericycle obtained a court order stating that Baron’s security interest under the lease was terminated and the seizure was released.

Baron filed an original Statement of Claim in April 2015, amended in August 2015 and again in April 2016. The Amended Amended Statement of Claim, served in April 2016, named additional defendants, including 474588 Alberta Ltd. operating as Riteway Vacuum Service (“Riteway”), alleging a spill involving a Riteway vacuum truck. Baron’s claim includes allegations of environmental contamination and seeks damages of nearly $15 million.

Issue of delay and disclosure

After initial procedural steps between 2016 and 2018, including the exchange of Affidavits of Records, the litigation went dormant. Questioning was scheduled for September 2020 but postponed. On March 22, 2021, Baron served a Supplemental Affidavit of Records with over 7,000 documents. Many of these originated from former Tri-Arrow manager Darrin Starchuk and included emails, photographs, business records, and spill documentation.

On August 3, 2021, Stericycle and Riteway filed applications to dismiss the action under Rule 4.33 of the Alberta Rules of Court, arguing that the Supplemental Affidavit did not significantly advance the action.

Initial decision by Applications Judge (2023 ABKB 531)

Applications Judge Summers dismissed the dismissal applications. He held that the Supplemental Records were relevant to pleaded issues concerning alleged environmental law breaches and misrepresentations by Stericycle. He accepted the testimony of Baron’s representative, Aaron Slawsky, that the documents were received over several years from 2016 to 2019 and required extensive review and sorting. The judge concluded that the records moved the action forward in a meaningful way and satisfied the functional test under Rule 4.33.

Appeal decision and dismissal (2025 ABKB 367)

Justice Kelsey L. Becker Brookes allowed the appeal and reversed the lower court’s decision. The Court found that:

• The relevant time period was March 23, 2018 to August 3, 2021, exceeding three years and 75 days.

• While the defendants bore the initial burden to show delay, the plaintiff then had an evidentiary burden to demonstrate the Supplemental Records significantly advanced the action.

• The records were largely irrelevant to the core issue of contamination and cost of remediation, which had become central to the case.

• Many documents were already in Baron’s possession prior to its original Affidavit of Records served on December 6, 2016.

• Mr. Slawsky’s explanation of when the documents were received and why they weren’t disclosed earlier was vague and insufficient.

• The records addressed matters already known or undisputed and did not materially assist in resolving the dispute.

Justice Becker Brookes concluded that the Supplemental Records, though relevant in a general sense, did not help determine whether the lands were contaminated, the extent of contamination, or remediation costs. Therefore, the production did not move the case forward in an essential way. The appeal was allowed and the action dismissed under Rule 4.33.

No monetary award, costs, or damages were granted or ordered in either the 2023 or 2025 decisions.