1.2: Purpose and intention of these rules
4.2: What the responsibility includes
4.31: Application to deal with delay
13.18: Types of affidavit

Case Summary

The Defendant/Appellant (“Mr. Jeffries”) successfully applied before a Master to dismiss the underlying Action for delay pursuant to Rule 4.31 (the “Action”). The Plaintiff/Respondent, (“Mr. Fraser”) successfully appealed to a Chambers Judge to restore the Action. Mr. Jeffries appealed that Decision to the Alberta Court of Appeal (the “Court”).

In the Action, Mr. Fraser sued Mr. Jeffries for damages for an injury he suffered during a hockey game in Fort McMurray in January of 2011. The Chambers Judge found inordinate delay in Mr. Fraser’s prosecution of the Action under Rule 4.31; however, the Chambers Judge concluded that Mr. Fraser had met his burden of establishing an excuse for the delay: his prior counsel’s illness.

As part of his Appeal to the Chambers Judge, Mr. Fraser’s second lawyer, Mr. Jang, swore an Affidavit on personal knowledge (on which he was never cross-examined) outlining some details about the illness of Mr. Fraser’s previous counsel (the “Jang Affidavit”). On Appeal, Mr. Jeffries challenged the Chambers Judge’s reliance on the Jang Affidavit arguing that it was based on hearsay and therefore did not comply with Rule 13.18(2), requiring that information based on information and belief include the source of the information.

On Appeal, the Court found that it was satisfied that no error in law or principle had been demonstrated in how the Chambers Judge assessed and weighed the evidence in the Jang Affidavit. The Court found that: (1) the Jang Affidavit was based on personal knowledge and not hearsay given that the two lawyers worked together in a small firm; and (2) while noting the evidence regarding the first lawyer’s illness was not detailed, the Chambers Judge nonetheless concluded that it satisfied Mr. Fraser’s onus of establishing a reasonable excuse for the delay.

The Court further noted that Rule 1.2 imposes obligations on all parties to advance the Action and emphasized that Rule 4.2(b) also places responsibility on both parties to respond, “in a substantive way and within a reasonable time to any proposal for the conduct of an action.” The Court found that Mr. Jeffries also did not press the pace of the Action, which further strengthened the Chambers Judge’s Decision.

Finally, the Court noted that Rule 4.31 requires significant prejudice arising from any delay before an Action will be struck and that, because the delay was excusable, Mr. Jeffries could not rely on the rebuttable presumption that he experienced significant prejudice. The onus remained with Mr. Jeffries to establish prejudice, which he failed to do. Accordingly, the Court found that the Chambers Judge made no error in finding a reasonable excuse for the delay and dismissed the Appeal. 

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