DRAIN v DRAIN, 2018 ABQB 468

Master Mason

1.2: Purpose and intention of these rules
3.26: Time for service of statement of claim
4.31: Application to deal with delay
4.33: Dismissal for long delay
5.5: When affidavit of records must be served
5.6: Form and contents of affidavit of records

Case Summary

The Defendants applied to dismiss the Action against them on the basis of long delay, pursuant to Rules 4.33 and 4.31. The Action, which was commenced in 2009, related to a dispute between four brothers about the distribution of their mother’s estate.

Regarding dismissal for long delay pursuant to Rule 4.33, Master Mason explained that any period of three or more years without significant advance in the Action will require dismissal of the Action, unless an exception set out in Rule 4.33(2)(a) or (b) applies. Master Mason further noted that determining whether an Action has been “significantly advanced” requires an assessment of the effect of the steps taken in the Action during the period of the alleged delay. The objectives enumerated in Rule 1.2, including timely litigation, should also be kept in mind. Additionally, even if a step is mandated by the Rules, it should still be assessed using the functional approach to determining whether the Action has been “significantly advanced”. Master Mason held that the Action was significantly advanced when one of the Defendants served his Affidavit of Records in May, 2011. Although the Defendants argued that the Affidavit of Records was only served as a matter of housekeeping, Master Mason noted that each party is required to deliver a sworn Affidavit of Records pursuant to Rules 5.5 and 5.6, and that the Affidavit of Records contained a significant number of documents, many of which had not previously been produced.

With respect to dismissal for delay pursuant to Rule 4.31, Master Mason noted that Rule 4.31 is concerned with delay in the proceedings causing prejudice, and not pre-lawsuit delay. Master Mason noted that in considering Rule 4.31, “delay” refers to a comparison of the non-moving party’s progress with the progress that would have been made by a reasonably diligent litigant. Pursuant to Rule 4.31(2), if inordinate and inexcusable delay has been proven, there is a rebuttable presumption of significant prejudice. The Court should consider the length and reason for any delay, and then consider whether significant prejudice resulted from the delay. Master Mason noted that the Action had been ongoing for over 9 years and included periods of 10 months and 31 months of non-activity. The Plaintiff had also taken 10 months to serve the Statement of Claim in the Action, with no explanation. Master Mason concluded that the lengthy periods of inactivity over the course of the Action constituted an inordinate and inexcusable delay.

However, Master Mason concluded that the inordinate and inexcusable delay did not result in significant prejudice to the Defendants. Although one witness had passed away over the course of the litigation, this occurred two years after the commencement of the Action and could not be attributed to the delay. As such, Master Mason dismissed the Application and ordered that the matter should immediately be set for Trial.

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