MCCARTHY v SCHINDELER, 2017 ABQB 511
4.31: Application to deal with delay
The Defendants applied to dismiss the Plaintiff’s Action for delay pursuant to Rule 4.31. Referring to the recent leading authority in Alberta for such Applications, Humphreys v Trebilcock, 2017 ABCA 116 (CanLII), and noting the principles laid out in R v Jordan, 2016 SCC 27 (CanLII) Master Schlosser observed that in the civil context, “a Plaintiff should not be held accountable for periods attributed to institutional delay” and that delay should be assessed in context on a case-by-case basis. Master Schlosser stated that the 10 year cap found in the Limitations Act RSA 2000, c L-12 “forms a kind of presumptive ceiling beyond which delay can be presumed to be inordinate and unreasonable without a compelling explanation”.
Master Schlosser considered the progress of the Action and held that the Plaintiff had failed to reasonably advance the Action; the delay was inordinate; the Plaintiff lacked reasonable justification for the inordinate delay; and that there was actual prejudice due to witnesses’ “fading memories”. Master Schlosser noted that when there is evidence which raises a genuine doubt as to whether prejudice exists, the presumption of prejudice is not sufficient to meet the onus of proving prejudice. Master Schlosser also stated that the Plaintiff’s “‘wait and see’ approach is not a sufficient excuse for delay when there are criminal charges and civil claims”, and observed that the allegations may be such that the Plaintiff has an obligation to advance the Action expediently.
In the result, Master Schlosser allowed the Defendants’ Application for long delay and dismissed the Action.View CanLII Details