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4 min read
Overview
A recent Court decision confirms that late document disclosure won’t automatically derail a case, but it can still carry consequences. In the decision, the Court refused to strike pleadings, exclude evidence, or dismiss the action despite delayed disclosure of key documents. The ruling highlights that proportionality governs remedies and that “immediate” disclosure is context-dependent in complex litigation. However, the successful party still received reduced costs, reinforcing that procedural diligence matters. The key takeaway: courts may allow flexibility, but delays in disclosure can still result in financial penalties and judicial warnings.
The Fort McMurray Airport Authority (the “Airport”) started a claim in October 2020, alleging a breach of a commercial lease. The Airport, as landlord, brought the claim against the original lessee, 994552 NWT Ltd., and Nova Hotel Properties Ltd. “(the “Hotel”), which had taken over the lease.
The Hotel filed a Statement of Defence and Counterclaim, and the parties exchanged Affidavits of Records and conducted questioning for discovery in 2021 and 2022. The last significant litigation step prior to the disputed events was the questioning of the Hotels’ president in May 2022.
On May 14, 2025, just four days before the three-year deadline that could have put the action at risk of being dismissed for delay, the Airport provided updated responses and a Supplementary Affidavit of Records containing 139 previously undisclosed documents, some of which had existed for years.
The Hotel responded by bringing three alternative applications seeking to dismiss or severely curtail the Airport’s action.
Issues Before the Court
- Whether the Airport’s pleadings should be struck under r. 3.68(4) for failure to comply with the immediate disclosure obligation in r. 5.10(a) of the Alberta Rules of Court.
- Whether the Airport should be prohibited from using the newly disclosed records at trial under r. 5.16, due to the delayed disclosure.
- Whether the action should be dismissed for long delay under the “drop-dead” rule at r. 4.33, given no significant advance of the action for nearly three years.
Analysis + Findings
On Striking Pleadings (r. 3.68(4) and r. 5.10): The Hotel argued that because 86 of the 139 new records pre-dated the Airport’s original Affidavit of Records, and some documents sat undisclosed for up to three years, the Airport had breached its obligation to give “immediate” notice under r. 5.10(a). The Court declined to strike the pleadings. Justice Summers held that striking pleadings is a disproportionate remedy for a failure to provide timely notice of newly discovered records, particularly absent any demonstrated prejudice. Crucially, the Court noted there appears to be no prior Alberta decision where pleadings have been struck solely on that basis, and that monetary sanctions under r. 5.12 would have been the far more appropriate remedy.
“Striking the Airport’s pleadings is a disproportionate remedy. I venture to say that may be the reason there is apparently no prior case where it has been done.”
Justice Summers at para. 25
The Court also offered important guidance on interpreting the word “immediately” in r. 5.10, While parties are expected to act promptly, what counts as “immediate” depends on the context. In longer, more complex cases, some delay may be acceptable, though parties are still expected to stay on top of their disclosure obligations.
On Excluding the New Records from Evidence (r. 5.16): The Hotel also asked the Court to prevent the Airport from relying on the newly disclosed documents, including documents relating to the re-lease of the premises and sale of the Annex Building in 2024 (the “2024 Documents”).
The Court rejected this request. It found that the documents had ultimately been disclosed, along with a supplementary affidavit, and that they were directly relevant to key issues in the case. The Court also noted that no trial date had been set. In those circumstances, excluding the documents would have been a disproportionate response.
On Dismissal for Long Delay (r. 4.33): The Hotel candidly admitted during oral argument that their long-delay application depended on the success of the r. 5.16 exclusion application. Having dismissed the latter, the Court dismissed the r. 4.33 application as well. However, Justice Summers went a step further and considered whether the recent production of information meaningfully moved the case forward. It found that the updated responses and the large volume of new documents, taken together, were significant and substantive. They constituted a genuine and meaningful advance of the action and not just housekeeping.
Outcome at a Glace
| Application | Result |
|---|---|
| r. 3.68(4): Strike Airport’s pleadings | Application dismissed |
| r. 5.16: Exclude newly disclosed records | Application dismissed |
| r. 4.33: Dismiss for long delay | Application dismissed |
| Costs | Half Schedule C (reduced as a warning) |
On Costs: A Notable Admonition
Despite the Airport’s complete success on the merits, the Court awarded only half of Schedule C costs.
Justice Summers did this as a warning about the delay in moving the case forward, particularly the late disclosure of documents. The Court also noted that a financial penalty could have been awarded (under r. 5.12) if it had been specifically requested.
The takeaway is clear. Even if you succeed, delays in disclosure can still carry real consequences.
Why This Decision Matters
This decision carries important practical guidance for Alberta litigants and counsel involved in commercial disputes and long-running civil litigation:
- Proportionality governs remedies for disclosure failures. Alberta courts will not strike pleadings for a failure to give timely notice of newly discovered documents absent clear and significant prejudice. The availability of the less drastic monetary sanction under r. 5.12 is an important limiting principle.
- “Immediately” is contextual, not absolute. In multi-year litigation, courts will apply a reasonable and flexible interpretation of the immediacy obligation under r. 5.10. Parties and counsel should document their disclosure timelines carefully.
- The r. 4.33 drop-dead rule requires careful attention. This decision confirms that steps taken close to the three-year anniversary can still constitute a significant advance, but only if they are substantive and genuine rather than cosmetic. The Court also offered helpful guidance on what kinds of steps will actually be seen as moving a case forward.
- Partial costs reductions serve as judicial warnings. A reduced costs award against a successful party signals that procedural diligence in document disclosure is taken seriously, independent of the ultimate outcome on the merits.
- Litigants in long-running commercial disputes should audit their disclosure obligations regularly. The 2024 Documents relating to mitigation of damages were available 15 months before production. While the delay was not fatal in this case, it still cost the Airport half of its costs.
If you’re navigating a dispute and have questions about document disclosure, timing, or litigation strategy, please contact Mohit Malhotra in Calgary, Jeremy Taylor in Edmonton, or any member of our Litigation Group.
Link to decision: Fort McMurray Airport Authority v. 994552 NWT Ltd and Nova Hotel Properties Ltd, 2026 ABKB 228
