NICHOLSON-PHILLIPS v SHELL CANADA LIMITED, 2019 ABQB 929
4.22: Considerations for security for costs order
4.31: Application to deal with delay
The Defendant to a wrongful dismissal Action commenced in 2007 sought dismissal of the Action for prejudicial delay pursuant to Rule 4.31. Master Prowse applied the test set out in Humphreys v Trebilcock, 2017 ABCA 116, finding that the Plaintiff failed to advance the Action at the pace of a litigant acting reasonably, and that the delay was both inordinate and inexcusable.
Upon consideration of prejudice, Master Prowse distinguished between the Plaintiff’s claim for lost income, which would not be significantly prejudiced by stale memories, and the Plaintiff’s claim for general and aggravated damages, which would be significantly prejudiced by stale memories. With respect to the claim for lost income, Master Prowse found that the Plaintiff rebutted the presumption of significant prejudice, and declined to grant dismissal. Conversely, with respect to the claims for general and aggravated damages, Master Prowse found that the delay significantly prejudiced the Defendant’s ability to defend and that there was no compelling reason not to grant dismissal, and the claims for general and aggravated damages were dismissed.
The Defendant also brought an Application for Security for Costs pursuant to Rule 4.22. Master Prowse declined to grant Security for Costs as the Plaintiff had been terminated without notice, and the Defendant did not allege cause, so it was likely that the Plaintiff was entitled to some damages against which the Defendant could set-off an award of Costs.View CanLII Details