3 Apr 2024

Derrick Concrete Cutting & Construction Ltd. v Nexxt Concrete Cutting & Construction Ltd.

Firms involved

Ogilvie LLP, Birdsell Grant LLP, Smith Thompson Law LLP

Plaintiff

Derrick Concrete Cutting & Construction Ltd.
Law Firm
Ogilvie LLP
Lawyer(s)

Ali Matour

Defendant

Nexxt Concrete Cutting & Construction Ltd.
Law Firm
Birdsell Grant LLP
Lawyer(s)

Kate MacLennan

Travis James Lega
Law Firm
Smith Thompson Law LLP
Lawyer(s)

Brian E. Thompson

Don Myroon
Law Firm
Birdsell Grant LLP
Lawyer(s)

Kate MacLennan

1989247 Alberta Ltd. as Amalgamation Successor to 1577542 Alberta Ltd.
Law Firm
Birdsell Grant LLP
Lawyer(s)

Kate MacLennan

  • Background:

  • Derrick Concrete Cutting & Construction Ltd. ("Plaintiff") sued Nexxt Concrete Cutting & Construction Ltd. and others ("Defendants") for damages claiming a former key employee breached duties by working with Nexxt Concrete, leaking essential information, and soliciting former colleagues and clients.
  • The Defendants attempted to have the lawsuit dismissed due to a lack of significant advancements under Rule 4.33(2) of the Alberta Rules of Court, arguing that the necessary legal proceedings had not moved forward within a three-year period.

  • Legal Issue:

  • The main legal question was whether there were any significant advances in the lawsuit within the required time frame to avoid dismissal under Rule 4.33(2).

  • Court Decision:

  • The Court of Appeal found that the action did not see significant advances in the relevant period, overturning the lower court's decision which had refused to dismiss the case.
  • The document did not specify the amount of costs awarded.

  • Reasoning:

  • The Court of Appeal used a "functional approach" to assess significant advances, focusing on actual progress rather than procedural formalities.
  • The Court determined that filed applications for summary judgment and summary dismissal, which were not heard or ruled upon, did not count as significant advances.
  • None of the litigation steps after March 13, 2019, including various procedural filings and incomplete attempts at summary dismissals, were sufficient to move the case forward meaningfully.
  •  
  • The appeal by the Defendants was allowed, and the action was dismissed.

Court

Court of King's Bench of Alberta

Case Number

1703 16538

Practice Area

Labour & Employment Law

Amount

Winner

Defendant

Trial Start Date

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