Master Robertson

4.31: Application to deal with delay
4.33: Dismissal for long delay

Case Summary

The Plaintiff commenced an Action against the Defendant insurance company after the Defendant terminated the Plaintiff’s disability benefit payments. The Defendant applied to dismiss the Action under Rule 4.31 for delay and consequential prejudice.

Master Robertson referenced the recent Court of Appeal decision in Humphreys v Trebilcock, 2017 ABCA 116 (CanLII) for the questions that the Court should consider when reviewing an Application under Rule 4.31 as follows:

  1. has the respondent reached the same point on the litigation spectrum during the time of review as a reasonable litigant;
  2. does the time differential qualify as inordinate;
  3. if the delay is inordinate, is there an explanation and does it justify the delay;
  4. if the delay is inordinate and inexcusable has the applicant demonstrated significant prejudice;
  5. is the presumption of prejudice under Rule 4.31(2) rebutted by the respondent; and
  6. if the criteria under Rule 4.31(1) are met, is there a compelling reason not to dismiss the action?

Master Robertson considered the questions in turn. In the analysis for whether there were other compelling reasons to not dismiss for delay, Master Robertson noted that Rule 4.33(2)(b) allows an Action to continue, even if three years had elapsed without activity, when an Application had been filed and the Applicant had participated in proceedings after the delay which warranted continuing the Action. While Rule 4.33(2)(b) does not directly apply to an Application under Rule 4.31, Master Robertson observed that the concept of waiver was analogous. Master Robertson observed that the Defendant was aware of, or should have been aware of, many of the elements of prejudice it alleged, but the Defendant allowed the case to proceed with no complaint about delay, even to the point of counsel suggesting in 2016 that the matter be scheduled for Trial.

Master Robertson held that, although there had been delay and there was some prejudice to the Defendant, the overall prejudice was exaggerated. Master Robertson concluded that the claim should not be struck but that it should proceed to Trial. The Application was dismissed.

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