4.31: Application to deal with delay
4.33: Dismissal for long delay
8.4: Trial date: scheduled by court clerk

Case Summary

The Defendants applied to dismiss the Plaintiff’s claim for long delay, pursuant to Rule 4.31. The parties were involved in a dispute regarding the building of a hotel in Edmonton approximately 20 years ago. The lawsuit was commenced by the Plaintiff close to the 10 year ultimate limitations deadline. Master Robertson noted that when the evidence has already been “perforated by faded memories” the pre-claim period may be a factor to consider when the Court looks at the subsequent delay once the claim is filed. Master Robertson noted that a long pre-claim period may be relevant to a Rule 4.31 Application, as further delay when evidence is already “stale” can be expected to cause prejudice.

After the Action was commenced, Affidavits of Records were exchanged, and mediation was discussed but not completed. The Plaintiff served an expert report on October 7, 2013, and on October 30, 2013, the Parties entered into a Litigation Plan with deadlines for Questioning in 2014. Master Robertson noted that “a few things were done in 2014”, after which there was a period of 14 months of inactivity. The Plaintiff completed additional Questioning in the fall of 2016; a “flurry of activity” occurred in the litigation; and then another 13 month period of inactivity occurred, until one of the Defendants filed its Application to dismiss in August, 2017.

Defendants’ Counsel emphasized that several steps set out in the litigation plan had yet to be completed. At least two potential witnesses died and others had left their positions as employees of the various Defendants and Third Parties, or could no longer be found. One Third Party went bankrupt, and other corporate parties ceased to exist. The Plaintiff argued that with so many parties to the litigation, the delays were not unusual and scheduling was difficult. However, Master Robertson noted that there was very little evidence of such difficulty. The Parties could have also sought case management, but did not do so. Master Robertson held that there was no evidence of any delay due to the Parties changing counsel.

Master Robertson noted that the Plaintiff, following the filing of the dismissal Application, had circulated a Form 37 to certify that it was ready for Trial. Pursuant to Rule 8.4(3), parties requesting a Trial date must “certify that questioning under Part 5 is complete”, and that “any undertaking given by a person questioned under Part 5 has been discharged”. However, Master Robertson held that the Parties were not ready for Trial; Questioning had not been completed and Undertakings had not been discharged. As such, Master Robertson characterized the Form 37 as a “Hail Mary pass”, a desperate attempt with only a small chance of success, when time is about to run out.

Master Robertson noted that disputes must be pursued at a reasonable rate, and that access to the Courts has a temporal limitation period. Delay becomes inordinate where it is a delay in excess of what is reasonable, having regard to the circumstances and issues in the litigation. Master Robertson considered the authorities which held that after 10 years of litigation, there is a “presumptive ceiling” at which point the parties, and the Court, should ask why the matter has not yet made it to Trial. Master Robertson also noted that “mere discussion about settlement does not satisfy the expectations under rule 4.33”. Master Robertson held that the delay was inordinate and inexcusable. Once such a finding is made, there is a presumption that the delay has prejudiced the Defendants. The burden to rebut the presumption is on the Plaintiff. Master Robertson held that there was no evidence to rebut the presumption of prejudice; and there was evidence of actual prejudice. Master Robertson dismissed the Action.

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