master robertson

4.31: Application to deal with delay
13.18: Types of affidavit

Case Summary

The Defendant, TransCanada Pipelines Limited applied to have the Plaintiff’s Claim dismissed pursuant to Rule 4.31. The Statement of Claim was filed in 2004, shortly before the expiry of the limitation period, and was served almost a year later. The Plaintiff did not request a Statement of Defence for almost 4.5 years. Once the Defence was filed, the Plaintiff did not provide its Affidavit of Records until September 2012. The Defendant provided an Affidavit of Records in September 2013, and Questioning of both parties took place in November 2014. While the Defendant delivered its responses to Undertakings in March 2015, the Plaintiff did not deliver responses to Undertaking until January 2016. The Plaintiff provided an expert report on damages in April 2016, although damages could have been assessed as early as 2007.

Master Robertson, referring to recent leading Alberta authority on Rule 4.31, determined that little had happened in 13 years, and the delay was inordinate, inexcusable and thus the presumption of prejudice applied. Master Robertson noted that the Defendant had provided evidence of non-litigation prejudice in the form of failing memories and a loss of electronic data through the Plaintiff’s computer failure. However, Master Robertson stated that having to explain the Claim to auditors or causing executives to be drawn away to deal with the Claim did not constitute non-litigation prejudice.

Master Robertson concluded that the Action should not have taken 13 years to get close to setting down for Trial, the delay was inordinate, inexcusable and the presumption of prejudice was not rebutted in this case. The Claim was dismissed for delay.

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