Master schlosser

4.31: Application to deal with delay
4.33: Dismissal for long delay
6.3: Applications generally

Case Summary

The several groups of Applicants sought to dismiss two related Actions for delay. The time since commencement of the Actions had spanned nearly 10 years, though in the three years preceding the Application, there had been “continued questioning, document production, an expert attendance and answers to undertakings.”

The several groups of Applicants each filed their supporting materials well after having filed their Applications. Relying on Rule 6.3(3) for the proposition that an Application is perfected only once supporting materials are filed, the Respondents argued that the three-year retrospective search for a significant advance should commence from the later filing of the supporting materials, rather than the earlier filing of the Applications. While the Court suggested that this argument may have weight in circumstances where supporting evidence was surprising or unexpected, Master Schlosser was ultimately prepared to hold that the various activities being proposed by the Respondents as significant advances, when viewed collectively under the functional approach, constituted a significant advance. Therefore, there was no need to analyze any particular activity in declining to dismiss the Actions for delay pursuant to Rule 4.33.

Master Schlosser then considered whether dismissal of the Actions was appropriate under Rule 4.31, following the well settled six-part test in Humphreys v Trebilcock, 2017 ABCA 116. The first element was satisfied as the Actions had not been advanced to the point on the litigation spectrum that a litigant acting reasonably would have attained within the time frame under review. The second element was also satisfied, as the delay had been inordinate. However, the third element was not made out, as the inordinate delay was excusable, if only barely excusable, on the ground that the Respondent was essentially Trial-ready, and the Applicants had consistently delayed in completing discovery. Accordingly, Master Schlosser was not prepared to dismiss the Actions pursuant to Rule 4.31.

In concluding, Master Schlosser suggested terms of a procedural Order that would ensure timely prosecution. Master Schlosser also remarked that the matter appeared suited for summary disposition.

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