Executive Summary: Key Legal and Evidentiary Issues

• Central question was whether the plaintiffs’ action should be dismissed for long delay under Rule 4.33 of the Alberta Rules of Court.

• Dispute focused on whether any “significant advance” in the action occurred within three years after December 6, 2018, or March 1, 2019.

• The adequacy and timing of the defendants’ responses to undertakings, particularly undertaking #28, were challenged by the plaintiffs.

• The court examined if the defendants’ participation in the application to compel undertakings and related proceedings amounted to acquiescence or participation under Rule 4.33(2)(b).

• The Applications Judge initially struck the action for delay, but the appellate court found this was in error and determined that the defendants’ participation warranted the action continuing.

• The appeal was granted and the action reinstated, with costs to be determined if not agreed upon.

Background and facts of the case

This matter concerns an appeal by Secan Association Inc. and FP Genetics Inc. (the appellants) against Randy Cannan, Cannan Farms Ltd., His Majesty the King in Right of Canada (represented by the Minister of Agriculture & Agrifood Canada), and the University of Saskatchewan (the respondents). The plaintiffs commenced the action on November 4, 2014. On December 6, 2018, a defendant’s officer was questioned and gave numerous undertakings. The defendants purported to answer those undertakings by March 1, 2019, but the plaintiffs objected to the adequacy of the responses, especially to undertaking #28. A series of letters between the parties followed, ending on August 12, 2020 (plaintiffs) and September 28, 2020 (defendants).

No further steps were taken until an application to compel undertakings was filed on February 28, 2023, just under three years later. The application was first returnable on March 3, 2023, adjourned to March 23, 2023, to accommodate defendants’ counsel and to allow the defendants’ officer to file an affidavit in response. The affidavit, filed March 17, 2023, rebutted the suggestion that there were outstanding undertakings. On March 23, 2023, a further adjournment sine die was agreed to so that counsel could explore resolution, but those efforts failed. The application to compel was rescheduled to June 21, 2023, and ultimately to August 3, 2023. On April 6, 2023, the defendants proposed moving the action to the judicial centre of Wetaskiwin and, for the first time, raised the possibility of a delay application. The defendants filed Rule 4.31/4.33 applications on or about June 16, 2023. Both the application to compel and the delay applications were heard on August 3, 2023.

Legal analysis and policy discussion

The main legal issue was whether the action should be dismissed for long delay under Rule 4.33. Rule 4.33(2) provides that if three or more years have passed without a significant advance in an action, the court must dismiss the action unless certain exceptions apply. The Applications Judge found that the last “uncontroverted significant advance in the action” was the December 6, 2018 questioning, and that subsequent correspondence and steps did not meet the test. The judge also held that the application to compel filed on February 28, 2023, did not constitute participation or acquiescence for the purposes of Rule 4.33(2)(b).

On appeal, Justice Michalyshyn reviewed the standard of correctness and considered whether the defendants’ actions, including seeking adjournments, filing an affidavit, and consenting to adjournment sine die, amounted to participation that would warrant the action continuing under Rule 4.33(2)(b). The court noted that the March 17, 2023 affidavit by the defendants’ officer provided a much fuller response to undertaking #28, although the plaintiffs still viewed it as unsatisfactory and requested further authorization, which was refused by the defendants. The court found that the March 17, 2023 affidavit was at least implicitly an admission that the March 1, 2019 undertaking response was inadequate and that the new response was a significant advance in the action. The court also found that the defendants’ engagement in the application to compel, including the request for adjournment and the filing of the affidavit, constituted participation for the purposes of Rule 4.33(2)(b).

Outcome and result

Justice Michalyshyn concluded that the Applications Judge erred in striking the action for delay. The appeal was granted, and the action was reinstated. If the parties are unable to resolve the question of costs, written submissions of not more than three pages may be filed within 60 days of the reasons. No specific monetary amount was ordered or awarded in this decision.