The Defendant applied for an Order dismissing the five and one-half years old Action pursuant to Rule 4.31 for inordinate and inexcusable delay (the “Application”). Applications Judge Summers granted the Application.

Applications Judge Summers cited Humphreys v Trebilcock, 2017 ABCA 116, in which the Alberta Court of Appeal provided the direction in considering a Rule 4.31 Application: 1) Has the non-moving party failed to advance the Action to the point on the litigation spectrum that a litigant acting reasonably would have attained within the time frame under review? 2) Is the shortfall or differential of such a magnitude to qualify as inordinate? 3) If the delay is inordinate has the non-moving party provided an explanation for the delay? If so, does it justify inordinate delay? 4) If the delay is inordinate and inexcusable, has the moving party demonstrated significant prejudice? 5) If the moving party relies on the presumption of significant prejudice created by Rule 4.31(2), has the non-moving party rebutted the presumption of significant prejudice? 6) If the moving party has met the criteria for granting relief under Rule 4.31(1), is there a compelling reason not to dismiss the Action?

Having noted that no Questioning for discovery had occurred, Applications Judge Summers found that the Plaintiff failed to advance the Action to the point on the litigation spectrum that a litigant acting reasonably would have attained. Applications Judge Summers further found that the shortfall between where on the litigation spectrum this Action should be and where it was actually was of such a magnitude as to qualify as inordinate.

Having considered the Plaintiff’s explanation for the nearly three-year delay, which was his counsel’s oversight, Applications Judge Summers held that the fault of counsel was not an adequate excuse for the delay. The absence of adequate excuse for the delay then triggered the presumption that the Defendant had suffered significant prejudice as a result of the delay.

Having noted that the Defendant demonstrated the problem with obtaining accurate evidence after a passage of eight years since the Plaintiff and Defendant interacted, Applications Judge Summers found that the Plaintiff failed to rebut such presumption. Finally, it was found that there was no compelling reason to not dismiss the Action.