4.31: Application to deal with delay
4.33: Dismissal for long delay

Case Summary

The Defendants made Applications to dismiss the Action for delay. The Plaintiff’s claim alleged that the Defendant Flower and his employer, the Defendant Haywood, as financial advisors, failed to follow her instructions and breached their fiduciary duty.

Master Prowse first considered Rule 4.31. The Court set out the factors that a Court will consider on an application brought pursuant to Rule 4.31 from Humphreys v Trebilcock, 2017 ABCA 116 (CanLII): (1) Has there been “inordinate” delay? (2) If so, is the delay “inexcusable?”; (3) If so, has the non-moving party rebutted the presumption that significant prejudice has occurred as a result of the delay? and (4) If not, is there a compelling reason not to dismiss the Action?

Master Prowse found there had been inordinate delay: the Statement of Claim was greater than nine years old and was still not ready to be set down for Trial. The delay was also inexcusable leading to a presumption that significant prejudice had occurred as a result of the delay. The Plaintiff had failed to rebut this presumption and there was no compelling reason for Master Prowse to allow the Action to continue. The Application to dismiss the Action pursuant to Rule 4.31 was granted.

In the alternative, Master Prowse considered Rule 4.33 which requires an Action to be dismissed if three or more years have passed without a “significant advance.” After reviewing the chronology, Master Prowse found that the last significant advance in the Action was one of the Defendant’s answers to written interrogatories served on March 8, 2016. Master Prowse found that Applications to produce further documents and to set a Trial date that were filed subsequent to March 8, 2016 were not sufficient to reset the three-year period because they were never actually heard.

With regards to Rule 4.33, the Action as against the Defendant Haywood was dismissed as their Application was made three years after the last significant advance. However, the Defendant Flower’s Application for dismissal of the Action for delay pursuant to Rule 4.33 was dismissed for being premature.

Master Prowse dismissed the Action against both Defendants pursuant to Rule 4.31, and as against the Defendant Haywood pursuant to Rule 4.33.

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