JACOBSEN v WAWANESA MUTUAL INSURANCE COMPANY, 2021 ABQB 938
4.31: Application to deal with delay
6.14: Appeal from master’s judgment or order
The Applicant appealed a Master’s decision denying its Application to dismiss the Respondent’s Action for inordinate delay. The Respondent argued that the Appeal was time-barred pursuant to Rule 6.14.
Pursuant to Rule 6.14(2), a Notice of Appeal must be entered and served within 10 days after the Order is entered and served. The Master’s Order was signed on October 28 2020, but was not entered by the Court until nearly a month later. When the Court returned the Order, it was incorrectly stamped with a filing date of October 23, 2020. The Applicant sent a Notice to Appeal for filing on December 8, 2020, but the Notice of Appeal was rejected. After an endorsement from ACJ Rooke, the Notice of Appeal was filed on December 18, 2020, and served on December 21, 2020, along with the original Order. The Applicant argued that, since the Order was not served until December 21, 2020, the Notice of Appeal was not time-barred.
The Court held that the Appeal was not barred by Rule 6.14. The Court found that the efficiency of the Court’s filing process was significantly compromised by the COVID-19 pandemic. The electronic filing system that the Court implemented contributed to longer delays and increased error rates in document filing. In this case, the Order was not properly filed when it was signed, and an incorrect filing date was applied when it was filed a month later. The Court also found that since the Applicant was directed to prepare the Order, the Applicant had control over when the Order would be filed and served. The Notice of Appeal was also served at the same time as the actual Order.
The Court allowed the Appeal and dismissed the Respondent’s Action for inordinate delay pursuant to Rule 4.31. Kachur J. confirmed that a Court may dismiss an action where the delay has resulted in significant prejudice to the Defendant. Where the delay is inordinate, it is presumed to cause significant prejudice, unless the prejudice is rebutted by the Plaintiff. A Court may consider the factors outlined in Rule 4.31(2). The Court found that more than 10 years had passed since the Statement of Claim was filed. The only major steps in the file included serving the Respondent’s Affidavit of Records, Questioning of the Applicant, and the addition of a new Plaintiff.
The Court held that while a 10-year delay has been deemed a presumptive ceiling whereby delay can be presumed to be inordinate, each case must be assessed on its own facts. In this case, there was no compelling explanation for the delay in the action. Kachur J. also found that the delay caused significant prejudice and the Respondent failed to provide any evidence rebutting the significant prejudice resulting from the delay.
The Court held that it was appropriate to dismiss the Claim despite the new Plaintiff being a party to the action for only three years. The Court held that when a new Plaintiff is added, the new Plaintiff accepts the same responsibilities of the original Plaintiff. The new Plaintiff had an obligation to move the matter forward, but the delay continued without any excuse.View CanLII Details