LDS v SCA, 2020 ABQB 586


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

Case Summary

The Defendant applied to dismiss the Action pursuant to either Rule 4.31 or 4.33. The Statement of Claim alleged that the Defendant had hacked the Plaintiff’s email account and, without her consent, sent intimate pictures of the Plaintiff to her partner and posted the pictures to pornographic websites.

Justice Belzil noted that an Anton Pillar Order (“APO”) had been granted in May 2016 and that an Independent Supervising Solicitor (“ISS”) was appointed through the APO to conduct a forensic investigation of the Defendant’s electronic devices which may have been used in the alleged acts. Through the ISS’s production of 3 investigative reports, Justice Belzil found that the ISS reports significantly advanced the Action as required by Rule 4.33, since the forensic analysis was required to determine the veracity of the Plaintiff’s claims.

The Court also dismissed the Application pursuant to Rule 4.31 because the sheer volume of the electronic records found in the APO caused the search to be time consuming. Additionally, the investigation was delayed when the ISS identified search terms which may have yielded privileged search results and thus, required modification. Furthermore, His Lordship noted that the Defendant’s own conduct in misleading the ISS about his ownership of an iPad and laptop, which were relevant to the investigation, had the effect of delaying the Action. As such, Justice Belzil stated that it would not be “just or equitable” to dismiss the Action before the ISS was able to prepare the final investigative report.

Finally, Justice Belzil noted that Rule 4.31(b) permits the Court to make procedural Orders related to the proceeding. As His Lordship had been appointed as Case Management Justice in the Action, he ordered the parties to arrange a Case Management appearance within 7 days to schedule the Plaintiff’s Application dealing with a Notice to Admit and to consider whether any further procedural Orders are required.

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