Mandziuk J

1.2: Purpose and intention of these rules
4.31: Application to deal with delay
4.33: Dismissal for long delay
6.14: Appeal from master’s judgment or order
10.29: General rule for payment of litigation costs
10.31: Court-ordered costs award
10.33: Court considerations in making costs award

Case Summary

The Plaintiffs appealed a Master’s Decision in which the Plaintiffs’ Action was dismissed for long delay under Rule 4.31 and Costs were awarded against the Plaintiffs (the “Underlying Action”). The Master had found that Rule 4.33 was not applicable. Justice Mandziuk noted that the standard of review for an Appeal from a Master to a Justice, pursuant to Rule 6.14, is correctness on all issues and, therefore, the Appeal Court is entitled to conduct a de novo analysis of the matter.

In the Underlying Action, the personal Plaintiff alleged that the Defendant had injured the Plaintiff’s finger by striking him with hockey stick during a recreational hockey game in January of 2011. The Statement of Claim had been filed in 2012. Various proceedings occurred up until April 4, 2016, but, between this date and the Application that gave rise to the Defendant’s Application under Rule 4.31, nothing had happened on the file. Mandziuk J. noted that the Rules that deal with litigation delay must be interpreted and applied in light of Rule 1.2, the foundational rule requiring that litigants “facilitate the quickest means of resolving the claim at the least expense”.

Justice Mandziuk reviewed the applicable factors outlined in Humphreys v Trebilcock, 2017 ABCA 116 and noted that the delay in this instance was inordinate but justifiable. The Plaintiff’s explanation for the delay was short and simple: The inordinate delay had occurred because the Plaintiff’s original lawyer became ill and had to take some time off. The file was transitioned to a new lawyer who acted swiftly and sent a form of litigation plan to Defendant’s counsel. When agreement to that plan was not forthcoming, the Plaintiff’s counsel promptly brought an Application that was within the spirit and intent of the Rules, as set out in Rule 1.2. This evidence was not before the Master. 

Justice Mandziuk concluded that, in light of this evidence, the delay was not inexcusable and therefore allowed the Appeal. Mandziuk J. reviewed the Rules 10.29, 10.31 and 10.33 pertaining to Costs and found that, though a successful party is entitled to Costs under Rule 10.29, the Court has an overarching discretion in awarding Costs after applying the factors set out in Rule 10.33.

Mandziuk J. found that the successful Appeal was significantly tied to the excusable nature of the delay which had come from new evidence that was not before the Master. His Lordship therefore, notwithstanding the Plaintiff’s success, declined to order Costs to the Plaintiff.

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