ATWAL v GILL, 2020 ABQB 146


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

Case Summary

The Defendant applied to dismiss the Action for delay pursuant to Rules 4.31 and 4.33. Master Prowse rejected the Application to dismiss the Action pursuant to Rule 4.33, but agreed to dismiss the Action for delay pursuant to Rule 4.31.

Pursuant to Rule 4.33, Master Prowse found that a Decision in a separate Action involving an issue common to the Action had removed one of the litigation issues in the Action, and therefore constituted a significant advance.

In assessing Rule 4.31, Master Prowse determined that there had been an inordinate delay because despite eleven years passing, the matter had not been set for Trial. Furthermore, he determined that the delay was inexcusable, mostly the fault of the Plaintiffs, and noted that the Plaintiffs did not rebut the presumption of significant prejudice arising from Rule 4.31(2). As Master Prowse found there was no compelling reason not to dismiss the Action for delay, he dismissed the Action against the Defendant pursuant to Rule 4.31.

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