BABIUK v HEAP, 2023 ABKB 410


1.2: Purpose and intention of these rules
4.31: Application to deal with delay
4.33: Dismissal for long delay

Case Summary

The Defendants, represented by the Administrator of the Motor Vehicle Accident Claims Act, RSA 2000, c M-22, applied to dismiss the Action pursuant to Rules 4.31 and 4.33 for long delay. The underlying Action was commenced in 2005.

After surveying the steps which had taken place in the litigation, Mandziuk J. noted that there had been very few meaningful steps taken in this Action in the last 17 ½ years, that those steps taken had primarily been driven by the Administrator, and that a number of steps remained to be taken before the matter could proceed to Trial.

Mandziuk J. also noted that Rules 4.31 and 4.33 should be read and applied in the context of Rule 1.2, the core of which is efficiency. As such, litigants are mandated to litigate in a manner that is timely, cost-effective, and transparent, with a focus on the issues and on well-timed resolution.

Mandziuk J. then turned to the Application under Rule 4.33. Rule 4.33 requires a significant advance of the Action within a three-year period. For the purposes of Rule 4.33, the three-year period is measured from the date of the last uncontroversial significant advance to the date the Rule 4.33 Application is filed. Mandziuk J. held that an Order regarding Costs, filed January 31, 2018, was arguably the last uncontroversial significant advance.

The Plaintiff argued that there were significant advances that occurred after January 31, 2018, including: (1) the Plaintiff retained new counsel; (2) the parties attempted to engage in settlement discussions; and (3) there was some discussion of alternative dispute resolution and the Plaintiff requested a Litigation Plan, which the Administrator declined to prepare. Mandziuk J. disagreed and found none of these steps constituted a significant advance in the Action. Mandziuk J. held that discussions and negotiations, while they were to be encouraged, did not advance an Action in an essential way if they were unsuccessful and did not narrow the issues relating to facts or procedure. Although there was an offer to schedule mediation or Judicial Dispute Resolution, no dates or mediator were suggested.

In addition, Mandziuk J. observed that the Plaintiff did not know where her file was for 19 months while the file was in custodianship with the Law Society of Alberta. Mandziuk J. noted that difficulty retaining counsel was not an excusable delay, and the Law Society’s custodianship was not the administrative delay contemplated by the Rule.

Mandziuk J. then turned to the Application under Rule 4.31. Citing the legal test in Humphreys v Trebilcock, 2017 ABCA 116, Mandziuk J. summarized the analysis to be applied under Rule 4.31 and noted that determining whether delay was inordinate and inexcusable was not a formulaic exercise, but a holistic analysis considering the “Action as a whole”.

Mandziuk J. found that the Plaintiff had not advanced the Action to the necessary point, and that the delay was considerably in excess of what is reasonable in the context of a straightforward case. Among other things, Mandziuk J. highlighted the ten-year period of inactivity after another person had been identified as a party to the Action (the claim against that person was dismissed due to limitation period expiry), the prolonged delay in answering Undertakings (four years), the 12-year delay in examining one of the Defendants, and the fact that the other Defendant had never been examined at all.

The delay was found to be inexcusable as the Plaintiff failed to provide evidence to establish a compelling explanation or excuse. The inordinate and inexcusable delay gave rise to a presumption of significant prejudice, which the Plaintiff failed to rebut. Mandziuk J. also found there had been actual prejudice to the Administrator. 

Finally, Mandziuk J. held that while the Plaintiff deserved sympathy, there was no compelling reason that would persuade the Court not to exercise its discretion to dismiss the Action.

Ultimately, Mandziuk J. dismissed the Plaintiff’s Action pursuant to Rules 4.31 and 4.33.

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