PAUL v QUAN, 2019 ABQB 381
4.31: Application to deal with delay
The Defendants, the Chief of Police and a number of police officers, applied to dismiss the Action for delay pursuant to Rule 4.31.
Master Schulz reviewed the test for delay under Rule 4.31, explaining that the six-part inquiry set out by the Court of Appeal in Humphreys v Trebilcock, 2017 ABCA 116 (CanLII) had since been simplified into a four-part test, in which the Court should ask: (1) What is the extent of the delay; (2) Is the delay inordinate and inexcusable; (3) Has the delay resulted in significant prejudice to the moving Defendants; and (4) Is there nonetheless a compelling reason not to dismiss the Action.
Master Schulz found that the delay in the Action was inordinate and inexcusable, as it had gone on for over ten years and the Plaintiff had not provided an excuse to justify the delay. The Master explained that pursuant to Rule 4.31(2), if delay is inordinate and inexcusable, it is presumed to have caused the Defendants significant prejudice and the onus shifts to the Plaintiff to disprove significant prejudice. In this respect, Master Schulz found that the Plaintiff had “narrowly rebutted the presumption of serious prejudice” because evidence had been preserved through audiovisual evidence, statements given in other disciplinary and criminal actions, and through the existence of transcript evidence. As such, there was no need to consider the fourth element of the test, and the Defendants’ Application was dismissed.View CanLII Details