4.31: Application to deal with delay
4.33: Dismissal for long delay
4.34: Stay of proceedings on transfer or transmission of interest
8.14: Unavailable or unwilling witness

Case Summary

The Applicant sought to dismiss the Action for delay pursuant to Rule 4.31. Master Schlosser noted that that the six-part analysis set out in Humphreys v Trebilcock, 2017 ABCA 116 (CanLII) (“Humphreys”), should be applied to determine whether the Action should continue in the face of delay under Rule 4.31. First, the Court must ask if the non-moving party failed to advance the Action to the point that a reasonable litigant should have during the same time frame. Second, it must consider whether the magnitude of delay is inordinate; and if so, consider third, whether there is a reasonable explanation for the inordinate delay. Fourth, if the delay is inordinate and inexcusable, the Court must then ask whether the delay “impaired a sufficiently important interest” or demonstrated significant prejudice to justify “overriding the non-moving party’s interest in having its action adjudged by the [C]ourt”. Fifth, the Court must then ask if the non-moving party has rebutted the presumption of significant prejudice created by Rule 4.31(2). Sixth, if the Applicant has met the criteria for granting relief for delay under Rule 4.31(1), the Court may consider whether a compelling reason exists not to dismiss the Action.

In weighing the above factors, Master Schlosser noted that the analysis is “nuanced” and “highly discretionary”, in contrast to the “bright-line analysis” used for delay Applications brought pursuant to Rule 4.33. The Court should consider the complexity of the Action, the number of parties involved, and the steps taken in the Action. Although Rule 4.31 (unlike Rule 4.33) is concerned with overall delay rather than long gaps in the Action, the Court may also consider whether there were any long periods of inaction. The Defendant’s involvement in the delay may also be a factor. However, the Master also explained that claims are more vulnerable to being struck for delay if they have been ongoing for at least ten years, in particular if questioning is incomplete and Trial is not yet scheduled.

In applying Humphreys, Master Schlosser acknowledged that it had been six years since the Statement of Claim was issued. During that time, Questioning had occurred; Undertakings were answered; an expert report was filed; the individual Defendant had suffered a stroke requiring appointment of a litigation representative; the Action was transferred to Edmonton; and the Defendants had applied to revive the corporate Defendant. During the Application to revive the corporate Defendant, and through a subsequent Appeal of that Application, the parties had entered into a standstill agreement. Master Schlosser determined that much of the delay in the Action occurred at the Defendants’ request, and some delay occurred while under a standstill agreement. As well, there may have been an automatic stay under Rule 4.34 due to the individual Defendant’s incapacity after his stroke. As such, when all of the circumstances were considered, the delay was excusable. Given that the delay was excusable, the rebuttable presumption of prejudice created by Rule 4.31(2) did not arise and there was no need to address the next stages of the Humphreys analysis.

Master Schlosser further held that there was no “actual” prejudice arising out of the Plaintiff’s delay, even though the individual Defendant no longer had capacity to testify. His loss of capacity impacted both sides. Additionally, the Plaintiff indicated that it would be willing to consent to the individual Defendant’s entire Questioning transcript being read in at Trial pursuant to Rule 8.14 in place of his viva voce evidence, to ameliorate any prejudice. The Master also noted, however, that such an Order would need to be made by a Judge rather than a Master, and that the Questioning transcript may not touch upon all of the issues. Nevertheless, the Defendants did not suffer significant prejudice due to the Plaintiff’s delay.

Master Schlosser dismissed the Plaintiff’s Application with Costs.

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