4.31: Application to deal with delay

Case Summary

The Defendants applied for a dismissal of the Plaintiff’s claim pursuant to Rule 4.31.

Justice Yamauchi cited Transamerica Life Canada v Oakwood Associates Advisory Group Ltd, 2019 ABCA 276 in support of the proposition that analysis under Rule 4.31 requires balance. The Plaintiff is required to pursue its claim quickly, but when the Defendant seeks to have a claim dismissed for want of prosecution, the Defendant’s conduct and pace is a relevant consideration. Yamauchi J. cited Humphreys v Trebilcock, 2017 ABCA 116 to state that when a party alleges fraud, they are under an obligation to advance the litigation at a faster pace than is otherwise expected.

Although His Lordship was provided with several pieces of case law in support of the Application to dismiss for delay, Justice Yamauchi held that the primary considerations for the Court are the facts and parties before it, and the actual conduct in the proceedings. Justice Yamauchi also noted that “[s]etting a presumptive ceiling is arbitrary and does not abide by a contextual approach.”

Yamauchi J. found that, given the scope of the litigation and the number of parties, the Plaintiff’s delay was neither inordinate nor inexcusable. As such, the presumption of “significant prejudice” contained in Rule 4.31(2) did not exist. In the absence of the presumption, Yamauchi J. found that the Defendants had failed to demonstrate any prejudice arising from the delay.

Justice Yamauchi therefore dismissed the Application.

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