MADORE v MADORE, 2016 ABQB 146
1.2: Purpose and intention of these rules
4.31: Application to deal with delay
4.33: Dismissal for long delay
12.38: Affidavit of records
The Applicant, Ms. Madore, sought an Order dismissing the matrimonial property Action initiated by the Respondent, Mr. Madore, on the basis of long delay. The Applicant conceded that the facts of the case did not fall within Rule 4.33; rather, she argued that the delay had resulted in significant prejudice under Rule 4.31. Gates referenced Kahlon v Cheecham, 2015 ABQB 203, for the steps in assessing an Application under Rule 4.31 and stated that the Court must determine whether the delay is inordinate, whether the delay is inexcusable and, finally, if these two criteria are met, whether the "presumption of significant prejudice is engaged". Regarding prejudice, an Applicant must establish the likelihood of serious prejudice before an Action will be struck, and this presumption can be rebutted by evidence that raises a legitimate doubt as to the existence of serious prejudice. Additionally, Rule 1.2 should inform the application of Rule 4.31 to ensure Actions are moved forward in a timely and cost effective way. Gates J. noted that the Court must examine the conduct of the litigation and should focus on whether the litigation has been moved forward in a meaningful way, and must examine the nature, value, importance and quality of any steps taken.
Gates J. held that the Respondent had not pursued his Action with haste and neither party had complied with Rule 12.38. Justice Gates considered the various steps taken by both parties, and held that the delay in this case was inordinate. Gates J. noted that the Respondent brought no Applications to address alleged delay issues due to the Applicant. As such, the delay was inexcusable. Finally, Gates J. noted that the Respondent did not advance any evidence or argument to raise legitimate doubt regarding the existence of significant prejudice; therefore, the Applicant was entitled to rely on the presumption of prejudice under Rule 4.31(2). Accordingly, the Application to dismiss for long delay was granted.View CanLII Details