MCKAY v ERIKSSON, 2019 ABQB 408
4.31: Application to deal with delay
4.33: Dismissal for long delay
The Applicant/Defendant police officers applied to dismiss the Action filed by the Respondent/Plaintiff for injuries he allegedly suffered at the hands of the Applicants/Defendants in 2004. The Application for dismissal was made pursuant to Rule 4.31 which gives the Court discretion to dismiss an Action where delay has resulted in significant prejudice to the non-moving party, or where the delay has been “inordinate and inexcusable” resulting in a presumption that significant prejudice has been suffered.
Master Prowse applied the factors outlined in the leading case of Humphreys v Trebilcock, 2017 ABCA 116 (CanLII) for assessing an Application under Rule 4.31.
The delay in this case was inordinate. Master Prowse noted that, barring special circumstances, most cases should be in a position to be set for Trial within 3-5 years of being commenced. This case was now 15 years old and still required additional steps to be taken before Trial.
The delay was also inexcusable. The unexplained delays in this case amounted to approximately 7 ½ years. Therefore, there was a presumption that the Applicants/Defendants had suffered significant prejudice. Master Prowse found that the Respondent/Plaintiff had not rebutted the presumption, and further, that the Applicants/Defendants had suffered actual prejudice as a result of the delays. Master Prowse rejected the Respondent/Plaintiff’s submission that this was a “documents” case that would not require an emphasis on viva voce evidence. The first hand recollection of witnesses would be important, and as such, the Applicants’/Defendants’ defence had undoubtedly been prejudiced following the passage of 15 years.
Finally, Master Prowse considered whether there were any overriding policy reasons to maintain the claim notwithstanding that prejudice had resulted from the delay. Master Prowse clarified that the moving party’s participation following delay can be a reason to let an Action continue; however, if this were always the case, no Action would ever be dismissed for delay unless the mandatory Rule 4.33 was triggered after 3 or more years of delay. Rule 4.31 would be redundant. Master Prowse then confirmed that Rule 4.31 requires that the Plaintiff press ahead toward Trial without allowing a case to languish for years.
After 15 years of sporadic activity, this case was still not ready for Trial. The Applicants/Defendants were not responsible for this. Master Prowse granted the Application and dismissed the Action.View CanLII Details