4.31: Application to deal with delay
7.3: Summary Judgment (Application and decision)

Case Summary

This was a Special Chambers hearing involving Cross-Applications. The Defendants applied for Summary Dismissal under Rule 7.3, alleging that the Action was not commenced within the limitation period; or alternatively, dismissal pursuant to Rule 4.31, on the basis that there had been inordinate delay, which had significantly prejudiced the Defendants. The Plaintiffs cross-applied for Summary Dismissal of the Defendants’ Counterclaim, also under Rule 7.3.

The case involved Abalon Construction, who installed concrete friction piles under the Tudor Manor building to prevent it from settling. The Plaintiff initiated a legal Action in 2010, and successive counsel provided Affidavits of Records between 2013 and 2016. The Defendants found the Plaintiff's document production inadequate. In 2019, the Defendants filed an Application for Summary Dismissal, claiming that they could not remember specifics or timing of events due to the Plaintiff's delayed document production. The Plaintiff filed its own Affidavit of Records nearly a year later, the Plaintiff's materials for a Cross-Application were not provided for over a year, and an Application was brought to force the issue.

The Court first dealt with the Plaintiff’s Cross-Application, dismissing it because the Plaintiff did not have an expert report to provide an opinion on the duties of care of the Defendants, whether those duties were breached, and if so, whether those breaches cause the damages claimed by the Plaintiff.

The Court then turned to the Defendants’ Rule 7.3 Application. The Defendants argued that the limitation period for the Plaintiff’s cause of action started before 2008, leaving to Court to determine whether the Plaintiff had knowledge, constructive or actual, before 2008, through the exercise of reasonable diligence, of the material facts upon which a plausible inference of liability on the part of the Defendants could be drawn.

The Court held that based on the evidence before the Court, it was not able to determine if the Plaintiff had actual or constructive knowledge of the facts that could have reasonably inferred liability on the part of the Defendants. The Court found that the Defendants had not met the test set out in Weir-Jones Technical Services Incorporated v Purolator Courier, Purolator Inc. and Purolator Freight, 2019 ABCA 49, and held that there was a triable issue as to whether the Plaintiff commenced the Action within the limitation period. Therefore, the Defendants’ Rule 7.3 Application was dismissed.

Turning to the Defendants’ Rule 4.31 Application, the Court followed the six-part analysis set out in Humphreys v Trebilcock 2017 ABCA 116. The Court found that the Plaintiff failed to advance the case to the point on the litigation spectrum that a litigant acting reasonably would have attained within the time frame under review, and the delay was inordinate. The Plaintiff’s explanation that the delay was not intentional or willful was of little significance, and the Defendants’ contributions to the delay did not outweigh the Plaintiff’s inordinate delay. The Court found no compelling reason not to dismiss the Action.

For the reasons set out in the above paragraph, the Court exercised its judicial discretion and granted the Defendants’ Application, striking the Plaintiff’s claim pursuant to Rule 4.31.

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