LDS v SCA, 2021 ABCA 59


4.31: Application to deal with delay
4.33: Dismissal for long delay

Case Summary

This was an Appeal by the Defendant of the Chambers Judge’s Decision refraining from dismissing an Action for long delay (Rule 4.33) or for delay causing significant prejudice (Rule 4.31).

The underlying Action concerned allegations that the Defendant had hacked the Plaintiff’s personal email account and forwarded nude and semi-nude photographs of her to her new partner and posted them on pornographic websites. The Action was managed by a Case Management Judge and involved several procedural steps, including the granting of an Anton Piller Order (“APO”). Nearly four years following the granting of the APO, the Defendant applied to have the claim dismissed pursuant to Rules 4.31 and 4.33. The Chambers Judge refused both Applications on the basis that there had been significant advances in the litigation in the preceding three years, including multiple case management appearances and three interim reports of the Independent Supervising Solicitor (“ISS”), appointed to oversee execution of the APO, and that any delays following granting of the APO had not resulted in prejudice to the Defendant.

On Appeal, the Defendant argued that the Chambers Judge had erred by failing to apply the appropriate tests in respect of both Applications. The Court of Appeal disagreed. In respect of the Application to dismiss for long delay, the Court held that the Chambers Judge had considered and correctly applied all applicable jurisprudence, including the correct test for determining whether a significant advance has occurred within the requisite three-year window: i.e. “[h]as anything that happened in the applicable period increased by a measurable degree the likelihood either the parties or a court would have sufficient information - usually a better idea of the facts that can be proven - and be in a better position to rationally assess the merits of the parties' positions and either settle or adjudicate the action?” and “[a]re the parties at the end of the applicable period much closer to resolution than they were at the start date?”. Moreover, the Court agreed with the Chambers Judge’s assessment that activities undertaken in respect of the APO were sufficient to advance the Action within the meaning of Rule 4.33. Though the Court agreed with the Defendant’s submission that he should be entitled to have the Judge consider a three-year period other than the one commencing immediately before filing of his Application, in the present circumstances, no three-year window could be identified during which there had been no significant advancement of the Action.

Additionally, the Court of Appeal held that the Chambers Judge had adopted the correct approach in assessing whether the claim should be dismissed pursuant to Rule 4.31 for delay causing prejudice. In particular, the Court held that the Chambers Judge had not committed a reviewable error in finding that delays attributable to issues with execution of the APO was not improper or ordinate. Moreover, the Court held that the Defendant’s claims lacked “any details of prejudice, other than a vague concern that his private information would have been revealed to two IT professionals, one of whom had a criminal record, and that he incurred costs in defending the action”, which it held to be insufficient. Accordingly, the Appeal was dismissed.

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