MID-WEST DESIGN & CONSTRUCTION LTD v JAYCO BUILDERS INC, 2019 ABQB 945
4.31: Application to deal with delay
4.33: Dismissal for long delay
6.14: Appeal from master’s judgment or order
The Defendant appealed a Master’s Decision dismissing its Application to have the Action dismissed for delay pursuant to Rule 4.31. The Master had found that, whether or not there was inordinate or inexcusable delay, any presumption of significant prejudice resulting from delay had been rebutted by the Plaintiff.
Hartigan J. first noted that the Defendant had filed new evidence on Appeal which spoke to the issue of prejudice, and found that the evidence was admissible pursuant to Rule 6.14(3) as it was relevant and material. However, His Lordship also noted that an analysis of whether there was delay must be conducted prior to determining whether or not the delay has resulted in significant prejudice, as the issues of delay and significant prejudice are causally linked.
Hartigan J. then reviewed the history of the Action along with the six questions set out by the Court of Appeal in Humphreys v Trebilcock, 2017 ABCA 116. His Lordship found that while the Action had initially advanced steadily, there was then a 22 month period of inactivity. At one point, the Defendant had applied to dismiss the Action for delay pursuant to Rule 4.33, without success. Given the 22 month period of delay, Hartigan J. determined that there was “unnecessary delay” between May 2016 and May 2018. However, His Lordship did not find the delay to be inordinate in the context of the entire length of the Action and the non-response of the Respondent. As such, there was no presumption of significant prejudice under Rule 4.31(2).
Finally, His Lordship turned to whether the Defendant had demonstrated significant prejudice as a result of delay, and considered the Defendant’s new evidence filed on Appeal. The new Affidavit described “general or expected prejudice visited upon a defendant involved in lengthy litigation”, but not a particular or unique prejudice. The Defendant also argued that some records had been lost or were never produced by the Plaintiff. The Plaintiff, on the other hand, insisted that it had produced all relevant and material records to the Action. His Lordship therefore concluded that there had not been non-litigation prejudice, and that it could not be determined whether the Defendant had suffered litigation prejudice. As such, the Defendant had failed to prove there had been significant prejudice resulting from delay, and the Appeal was dismissed.View CanLII Details