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

Case Summary

This was an Appeal from the Decision of a Case Management Judge which had dismissed the Appellants’ Actions for delay pursuant to Rule 4.31. The Application was with respect to two Actions relating to failures of retaining walls in a residential property development in Cochrane. The first claim was commenced in April 2011 by the town as against 58 Defendants. In July 2011, 69 homeowner Plaintiffs filed a second Statement of Claim as against 89 Defendants, including the Town of Cochrane.

In May and June of 2019, five groups of Defendants successfully applied to have the Actions dismissed for delay, which Applications were heard together. On Appeal, the Court considered the standard of review applicable to a Decision under Rule 4.31, noting that whether an Action should be dismissed for delay engages a certain element of discretion and unless the exercise of that discretion is based on an error in principle, or is clearly unreasonable, deference is warranted on Appeal.

The Court commented on the wording of Rule 4.31 which refers to delay in an Action and requires a review of the entire Action, and not segments. Delay is always a matter of degree; the differential between the theoretical standard of what point on the litigation spectrum a reasonable litigant would have reached, and any particular case is incapable of precise definition. In upholding the Decision of the Case Management Judge, the Court of Appeal noted that the proper framework was followed and, in particular, the Court found that a reasonable litigant, after eight years, would have at least conducted some, if not all, Questioning. In addition, after eight years, the Appellants had not obtained a single expert report that could be used at Trial. At the time the dismissal Applications were filed, the Actions were far from being ready for Trial and there was virtually no activity on most of the essential steps necessary to move the litigation forward.

The Court further upheld the decision of the Case Management Judge with respect to rejecting the argument that the Defendants had acquiesced to delay through their conduct or silence and the consideration of prejudice. Noting the Case Management Judge was aware of the meaning of “prejudice” and “significant prejudice”, the Case Management Judge was also aware that the prejudice must arise from the delay. The conclusion that there had been significant prejudice is a question of mixed fact and law and the Court of Appeal found that the Appellants failed to establish that the Case Management Judge had made palpable and overriding errors.

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