FRANCHUK v SCHICK, 2013 ABQB 532
4.31: Application to deal with delay
15.4: Dismissal for long delay: bridging provision
The Applicant (Defendant) sought dismissal for long delay, or alternatively, dismissal for delay causing significant prejudice.
The Action alleging defamation was brought in 2006. The issue was whether an Affidavit filed in 2009 advanced the Action. The Affidavit was filed in support of the Defendant, and outlined details on the defences of qualified privilege and whether the Defendant acted maliciously. The Affiant died shortly after the filing of the Affidavit. The Affiant had not been questioned on the Affidavit.
The Court held that the filing of the Affidavit was similar to the provision of information to an opposing party. The Court also held that the Defendant had acknowledged, in previous correspondence, that the filing of the Affidavit moved the Action closer to Trial. The Court held that the filing of the Affidavit significantly advanced the Action. Additionally, the Court held that the Defendant had not been significantly prejudiced. The Application was dismissed. However, the Court granted a procedural Order requiring the Plaintiff to either file a completed Form 37 or bring an Application to set a Trial date.View CanLII Details