4.31: Application to deal with delay

Case Summary

The Defendant brought an Application to dismiss the Action for delay pursuant to Rule 4.31. In August of 2017, the parties had agreed to a litigation plan. Despite the efforts of the Defendant, the Plaintiff failed to meet any of deadlines in the litigation plan.

Master Schlosser applied the Rule 4.31 test set out in Humphreys v Trebilcock, 2017 ABCA 116 (CanLII). The first part of the test requires that the Court consider whether the Plaintiff has advanced the Action to the point of litigation that a reasonable litigant would have attained. Master Schlosser found the parties were best able to decide where the matter should be, and they did so via the litigation plan. If the litigation plan had been followed, the matter would have been concluded by the time the Application to dismiss was to be heard. As the litigation plan was not followed, the Plaintiff had failed to advance the Action sufficiently.

Master Schlosser found the delay to be inordinate; the Plaintiff had not provided any adequate excuse for the delay; there was no compelling reason not to dismiss; and the Plaintiff had not rebutted the presumption that delay caused significant prejudice to the Defendants. Master Schlosser dismissed the Action for delay under Rule 4.31 with Costs to the Defendant.

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