ALSTON v HAYWOOD SECURITIES INC, 2022 ABCA 84
VELDHUIS, HO J AND KIRKER J
4.31: Application to deal with delay
4.33: Dismissal for long delay
The Appellant appealed a Chambers Judge’s Decision (the “Decision”) upholding the decision of a Master to dismiss her Action for delay pursuant to Rules 4.31 and 4.33.
The Court determined that the standard of review was palpable and overriding error. A Chambers Judge’s decision to dismiss an Action for delay under Rule 4.31 involves an exercise of discretion and is owed deference. The Court noted that determining whether delay is inordinate and inexcusable or whether there has been significant prejudice are largely questions of fact. With respect to Rule 4.33, the Court noted that determining whether an Action has been significantly advanced is a question of mixed fact and law.
The Court found no palpable and overriding error in the Decision. To the contrary, the Court found that the Chambers Judge stated the correct legal test and made factual findings on the record before him. The Chambers Judge reviewed the history of the proceedings and determined that:
- The Appellant was responsible for all delay after 2016;
- The Respondent suffered substantial litigation prejudice because of the Appellant’s inexcusable and inordinate delay; and
- The steps taken after March 8, 2016, did not narrow the issues, complete or advance discovery, or clarify the parties’ positions or otherwise stop the clock.
As a result, the Court dismissed the Appeal.View CanLII Details