4.31: Application to deal with delay
4.33: Dismissal for long delay
7.1: Application to resolve particular questions or issues

Case Summary

The Applicant law firm applied to dismiss the Respondent’s Action for long delay pursuant to Rule 4.31. The dispute related to an opinion that the Applicant provided to the Respondent in 1990 and a Notice of Assessment issued by Revenue Canada in 1994.

Master Schlosser noted that the leading case for long delay Applications is Humphreys v Trebilcock, 2017 ABCA 116 (CanLII) (“Humphreys”), but qualified that the analysis of whether there was delay in this case must be performed considering that the litigation has spanned two limitations regimes, a revision of the Rules, and a culture shift regarding the way that civil disputes may be summarily resolved. Master Schlosser went on to cite and apply the six part test set out in Humphreys. The Court found that the Respondent failed to advance the Action to the point on the litigation spectrum that a litigant acting reasonably would have attained within the time frame under review. Despite acknowledging that the appeal of a tax liability issue took a very long time, the Court found that more could have been done to establish liability in the meantime. It also noted that splitting liability and quantum is more acceptable following Hryniak v Mauldin, 2014 SCC 7 (CanLII) and the reinterpretation of Rule 7.1.

Master Schlosser also found that the shortfall or differential between the advancement in the Action and what a reasonable litigant would have attained qualified as inordinate. It had been 28 years since the impugned event had occurred, 18 years since the Statement of Claim was issued, and 10 years since a final resolution was reached with Revenue Canada. The Court held that the case was not so complex and that it could have been ready for Trial or summary disposition by now. Master Schlosser then found that the delay was inexcusable. Despite the fact that some of the delays could be attributed to factors outside the control of the Respondent, the Respondent still had opportunities to advance the matter.

With respect to prejudice, the Court noted that prejudice is presumed where there is inordinate and inexcusable delay. Despite the fact that the Action was a “documents case”, the Court found prejudice in part due to the responsible lawyer leaving the Applicant law firm and fading memories resulting from the passage of 28 years. Master Schlosser held that the Applicant satisfied the Humphreys test and dismissed the Action for long delay.

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