ALTEX INTERNATIONAL HEAT EXCHANGER LTD v FOSTER WHEELER LIMITED, 2018 ABQB 620
1.2: Purpose and intention of these rules
4.31: Application to deal with delay
4.33: Dismissal for long delay
The Defendant applied for dismissal of the Action pursuant to Rule 4.31 or, alternatively, under Rule 4.33(2). Before reviewing the facts or the relevant tests, Justice Mandziuk noted that the delay Rules must be read in the context of Rule 1.2, specifically Rule 1.2(3) which requires litigants to resolve the claim quickly and at the least expense.
Justice Mandziuk noted that the Action was mostly a contractual dispute, in which the Plaintiff filed the Statement of Claim on October 24, 2000. The litigation was generally active until a Pre-Trial Conference on February 26, 2006. Several procedural deadlines were set at the Pre-Trial Conference, but none were met and the Action became dormant for some time. The Action was revived briefly when the Plaintiff provided some outstanding undertaking responses on August 16, 2010. The Plaintiff then applied on October 19, 2010, and again on October 5, 2011, to have the matter set for Trial, but neither of those Applications proceeded. The Defendant brought an Application for dismissal for delay on March 1, 2010 (the “First Dismissal Application”) and that Application was heard and dismissed on July 27, 2012. The Defendant filed an Appeal of the First Dismissal Application but discontinued the Appeal on July 10, 2013. The Action was dormant again for some time until the Plaintiff provided further undertaking responses (the “2016 UT Responses”) and a Supplemental Affidavit of Records on June 29, 2016 (the “SAOR”). The Plaintiff then sent a letter enclosing a Form 37 – Request to Schedule a Trial Date on May 30, 2017 (the “2017 Trial Request”). The Defendant filed the within Application on October 3, 2017.
After reviewing the facts, Mandziuk J. applied the six-part test set out by the Alberta Court of Appeal in Humphreys v Trebilcock, 2017 ABCA 116 (CanLII). Justice Mandziuk found that: (i) there was a shortfall between the Action’s current point on the litigation spectrum and the point where it reasonably ought to be; (ii) the Plaintiff conceded that there was inordinate delay; (iii) there was no reasonable excuse for the delay; (iv) not only did the presumption of prejudice arise, but the Defendant demonstrated significant actual prejudice due to the death of a key witness, the effects of the passage of time on memories, and corporate personnel shifts; (v) the Plaintiff offered no evidence to rebut the presumption of prejudice; and, (vi) the case was a clear example of litigation delay and the Plaintiff had not established a compelling argument against dismissing the claim. For these reasons, Justice Mandziuk dismissed the Action under Rule 4.31.
Justice Mandziuk also discussed whether the Action should be dismissed under Rule 4.33. First, Mandziuk J. noted that the relevant period of delay is determined by looking back from the date the Application was filed, not the date it was heard. The steps the Plaintiff sought to rely on as significant advances in the Action were the 2016 UT Responses, the SAOR, and the 2017 Trial Request. Justice Mandziuk noted that the Court was required to apply a functional approach under Rule 4.33 and, following Sutherland v Brown, 2018 ABCA 123 (CanLII), was required to consider factors including the nature, value and quality, genuineness, timing, and outcome of the steps taken. Mandziuk J. went on to find that the 2016 UT Responses were perfunctory and incomplete, and that the evidence did not support a finding that the SAOR significantly advanced the Action. For these reasons, neither step significantly advanced the Action. At the hearing of the Application, the Plaintiff did not attempt to rely on the 2017 Trial Request, and the Court agreed that it did not constitute a significant advance in the Action. As a result, Justice Mandziuk also dismissed the Action under Rule 4.33.View CanLII Details