1.2: Purpose and intention of these rules
4.31: Application to deal with delay
4.33: Dismissal for long delay

Case Summary

A Provincial Court Judge had dismissed the Appellant’s Action for long delay pursuant to Rule 4.31. The Appellant appealed this Decision to the Court of Queen’s Bench. Justice Malik dismissed the Appeal, finding no palpable and overriding error in the Provincial Court Judge’s findings.

Justice Malik first noted that Rule 1.2 promotes the resolution of disputes in a timely, efficient, and cost-effective manner. Justice Malik also noted that Rule 4.31 allows the Court to dismiss all or part of a claim where a party’s delay in prosecuting the Action results in significant prejudice to the other party. Under Rule 4.31(2), a delay that is inordinate and inexcusable is presumed to have caused significant prejudice.

Justice Malik found no palpable and overriding error in the finding that the delay was inordinate and inexcusable. The delay was two weeks less than the three years required to bring an Application for long delay pursuant to Rule 4.33. The Appellant argued that the delay was caused by her lawyer’s failure to follow up with her and the Appellant’s difficulty retrieving documents from storage and from her physicians. The Court noted that the Appellant was represented by a lawyer, and it is ultimately the Plaintiff’s obligation to prosecute his or her Action in a timely manner.

Justice Malik also found no palpable and overriding error in the finding that the Appellant failed to rebut the presumption that the delay had caused prejudice. The Provincial Court Judge found that there was clear evidence of prejudice: in particular, one of the Respondent’s key witnesses no longer lived in Canada and would likely be testifying 7-8 years after the events giving rise to the Appellant’s claim.

View CanLII Details