FISH v BOYD, 2018 ABQB 190


4.31: Application to deal with delay

Case Summary

The Plaintiff, Fish alleged that he was injured by members of the Edmonton Police Service during his arrest on Whyte Avenue during the 2006 playoff run by the Edmonton Oilers. The Plaintiff applied to set deadlines to move the case to resolution and the Defendants cross-applied to dismiss the Claim pursuant to Rule 4.31.

Master Schulz considered Rule 4.31 and the six part test as set out by the Court of Appeal in Humphreys v Trebilcock, 2017 ABCA 116 (CanLII):

First, 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?

Second, is the shortfall or differential of such a magnitude to qualify as inordinate?

Third, if the delay is inordinate has the non-moving party provided an explanation for the delay? If so, does it justify inordinate delay?

Fourth, if the delay is inordinate and inexcusable, has this delay impaired a sufficiently important interest of the moving party so as to justify overriding the non-moving party’s interest in having its action adjudged by the court? Has the moving party demonstrated significant prejudice?

Fifth, 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?

Sixth, 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 non-moving party’s action? This question must be posed because of the verb “may” in Rule 4.31(1).

Master Schulz applied the six part test and concluded that there was inordinate and inexcusable delay. However, Master Schulz found that the Defendants had delayed scheduling Questioning by refusing to attend Questioning until the conclusion of the disciplinary proceedings before the Edmonton Police Service Professional Standards Branch. While Master Schultz noted that Plaintiff’s counsel should have taken steps to apply to the Court to deal with the Defendants’ delay sooner, the Defendants failed to demonstrate resulting prejudice in order to dismiss the Claim.

Master Schulz determined that the Claim was essentially ready for Trial, with some assistance from the Court in setting deadlines, and declined to dismiss the Claim. Master Schulz made a procedural Order pursuant to Rule 4.31(1)(b), and dismissed the Defendants’ Application.

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