The Defendants applied to have the underlying Action, commenced in 2009, dismissed on the grounds of delay and prejudice pursuant to Rule 4.31 (the “Dismissal Application”). The Plaintiff (“Mr. Kniss”) was an employee of Telus and sought counselling through a Defendant, Shepell FGI. His counsellor (“Ms. Wiggins”) was concerned about certain things that Mr. Kniss had said during their sessions and concluded that Mr. Kniss may be a risk to himself or others (the “Concerns”). Ms. Wiggins passed the Concerns on within the Shepell FGI organization which ultimately led to Mr. Kniss’ dismissal as an employee of Telus.

Mr. Kniss brought numerous dispute resolution actions, including the underlying Action, in relation to the foregoing facts, before various boards and tribunals. Mr. Kniss was unsuccessful at every level and in every forum with only the underlying Action against these Defendants remaining. The issue, as described by Master Robertson, was whether one Defendant can rely on Rule 4.31 to claim that there has been “delay” when the Plaintiff has been busy, although not with that particular Defendant, in the absence of a standstill agreement. Additionally, over this time period, Ms. Wiggins had died and many of her case files lost. Therefore, an additional issue was whether the absence of Ms. Wiggins as a witness constituted significant prejudice.

Master Robertson applied the test, as set out by the Alberta Court of Appeal in Humphreys v Trebilcock, 2017 ABCA 116 (CanLII) (“Humphreys”), for considering an Application under Rule 4.31. Master Robertson found that Ms. Wiggins, prior to her death, was examined in one of the arbitration proceedings about what Mr. Kniss had told her and that Mr. Kniss, under Rule 8.14, could rely on that evidence at Trial. Master Robertson noted that, while Rule 8.14 generally applies to “evidence given at questioning conducted under Part 5”, which was not the case here, Master Robertson concluded that Rule 1.7(2) specifically allows the Rules to be applied by analogy “to any matter that is not dealt with by these rules”, and further that Rule 6.11(1)(f) provides that the Court may consider evidence taken in any other action if the party proposing to submit the evidence obtains the Court’s permission.

Master Robertson, returning to the factors in Humphreys, concluded that, while Mr. Kniss may be said to have failed to advance the Action to the point that a litigant acting reasonably would have, that shortfall or differential was not of such a magnitude to qualify as inordinate. Accordingly, Master Robertson dismissed the Dismissal Application.