Is the filing of an affidavit of records a "necessarily required step" in an action?

[24] In Morasch v. Alberta 2000 ABCA 24, the court held that a required step under the rules is a thing that materially advances an action. The filing of an affidavit of records is now a mandatory step under the rules and therefore materially advances the action.

In Howard v. Calgary (City) Police Service 2001 ABQB 904, Brooker J. considered a situation where an affidavit of records was filed voluntarily and never served upon the defendant. Under the rule in place at the relevant time in that action, the filing of an affidavit of records was not required unless demanded by the other side. He held that the affidavit, as it was filed voluntarily, was not a step under the rules and as it was never served, was not a thing that materially advanced the action. However, he noted at paragraphs 17 to 18 that he “appreciate[d] the plaintiff’s argument that whether an affidavit is prepared voluntarily or under compulsion, it makes no practical difference as the effect is the same in terms of advancement of the action.”

In Matthews v. Great-West Life Assurance Co. 2002 ABQB 297, the court also considered a rule 244.1 application to dismiss where the affidavit of records had been filed voluntarily pursuant to the former rule. The court noted that the affidavit was not mere housekeeping as it listed over 150 documents and could provide the plaintiff with significant information concerning the suit and as such had the effect of moving the action forward in a meaningful way. Relying on Howard v. Calgary, the court held, at paragraph 29, that an affidavit of records “brought to the attention of the adverse party could be a thing that materially advances the action because an affidavit of records allows a party to know the nature and extent of the documents held by the other side, permits inspection of the documents and may trigger admissions.”