The Defendant, Holman, unsuccessfully applied to dismiss the Plaintiff’s Action for delay pursuant to Rule 4.31. The Master granted the Plaintiff’s Cross-Application to continue the Action under Rule 4.34, and Holman appealed to a Justice.

The Plaintiff commenced the Action in May 2012, and the parties agreed that the last advance in the Action was the service of the Plaintiff’s Affidavit of Records in September 2012. The Plaintiff died on June 10, 2014, and the Action was automatically stayed by operation of Rule 4.34(1). The Defendant applied to dismiss for long delay on July 8, 2015 and the Plaintiff’s Estate cross-applied to continue the Action under Rule 4.34 on July 10, 2015. The Applications were not heard until March 2016.

Justice Bast considered Rules 1.2, 4.31 and 4.34 and applied the six considerations set out in Humphreys v Trebilcock, 2017 ABCA 116: 1) has the Respondent failed to advance the Action to the point on the litigation spectrum that a litigant acting reasonably would have attained within the time frame under review; 2) is the shortfall or differential of such a magnitude to qualify as inordinate; 3) if the delay is inordinate has the Respondent provided an explanation for the delay and if so, does it justify inordinate delay; 4) has the Applicant demonstrated significant prejudice; 5) if the Applicant relies on the presumption of significant prejudice created by Rule 4.31(2), has the Respondent rebutted the presumption of significant prejudice; and 6) if the Applicant has met the criteria for granting relief under Rule 4.31(1), is there a compelling reason not to dismiss the Action?

Justice Bast noted that the Plaintiff was advancing a claim for fraudulent misrepresentation, and therefore bore a heightened obligation to ensure the Action was advanced in a reasonably diligent manner. Bast J. noted that a reasonable litigant would have advanced the Action past the point of serving their Affidavit of Records between the period of September 6, 2012, and July 8, 2015. Bast J. held that the delay in this case was “unreasonable and therefore ‘inordinate’”, noting that the period of delay which accrues after an automatic Stay under Rule 4.34 is still to be considered as part of the overall delay.

The Plaintiff’s Estate argued that the delay was justified; however, Justice Bast observed that none of the justifications were supported by sworn evidence as required by Rule 6.11. Bast J. observed that the Plaintiff should have sought a standstill agreement with the Defendant or Applied for an Order staying the Action. The Defendant provided evidence that several key witnesses had died or had moved outside the country and could not be located. Justice Bast held that this constituted significant litigation prejudice as a result of the delay, and that the Plaintiff had not rebutted the prejudice.

In the result, Justice Bast granted the Appeal and dismissed the Claim under Rule 4.31.