4.31: Application to deal with delay
6.14: Appeal from master’s judgment or order
7.3: Summary Judgment (Application and decision)

Case Summary

The Plaintiffs brought a claim for breach of contract against the Defendants. The Plaintiffs’ claim was summarily dismissed by Applications Judge Robertson (the “Order”). The Plaintiffs appealed the Order pursuant to Rule 6.14. The Defendants applied to dismiss the Plaintiff’s Appeal for delay under Rule 4.31.

The Court considered Rule 4.31, noting the Defendant's arguments that the Rule empowers the court to “dismiss all or any part of a claim”, and that Appeals pursuant to Rule 6.14(1) are subject to short timelines and must be pursued diligently. The Plaintiffs cited some authorities addressing delays in the context of Appeals before the Court of Appeal. The Court acknowledged that even though the authorities cited by the Plaintiffs were not directly applicable to the present situation, the general principle that litigants are expected to diligently pursue Appeals applies. It was recognized that a comparatively shorter period of delay may establish "inordinate and inexcusable delay" in the advancement of an Appeal under Rule 6.14(1), as opposed to the dismissal of an entire Action.

Nevertheless, the Court found that the delay in advancing this Appeal did not reach the threshold of being considered inordinate and inexcusable. The initial six-month delay was consented to by the Defendants under Rule 4.31(3). The subsequent delays could be attributed to various factors largely beyond the control of the Plaintiffs. These include the impact of the COVID-19 pandemic, the serious illness of the Plaintiffs' former counsel, and the Court's scheduling backlog. The Court observed that according to Rule 4.31(1)(b), the Defendants were obligated to demonstrate the existence of "significant prejudice" resulting from the delay. However, the presumption put forth by the Defendants regarding any prejudice related to the witnesses was refuted, given that the crucial matters in the Appeal hinged on the written evidence. Consequently, the Defendants' request to dismiss the Appeal on grounds of delay was rejected.

The Court proceeded to evaluate whether the Plaintiff's Appeal from the Order should be dismissed summarily. In doing so, the Court applied the test in Weir-Jones Technical Services Inc v Purolator Courier Ltd., 2019 ABCA 49, and observed that the issues in this Appeal could be resolved on a summary basis, given that they primarily hinged on the language of the purchase and sale agreement and written evidence. The Court applied the relevant legal principles concerning breach of contract and determined that it was appropriate to resolve the dispute between the parties summarily and in favor of the Defendants. The Court noted that the Defendants had established the necessary facts on a balance of probabilities and had discharged their burden of demonstrating that there was no merit to the Plaintiffs' claims. Although the Plaintiffs presented substantial evidence, they failed to demonstrate the existence of a genuine issue that necessitated a Trial.

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