nixon j

4.31: Application to deal with delay
4.33: Dismissal for long delay

Case Summary

The Defendant applied before a Master for dismissal of the Action for delay under Rule 4.33. The Master dismissed the Application and found that the Action had been significantly advanced in the relevant period (the “Master’s Decision”). The Defendant appealed the Master’s Decision but relied on Rule 4.31, which was not argued before the Master.

Justice Nixon noted that an appeal from a Master is an appeal de novo and thus it is permissible for a party to present new arguments. Nixon J. referred to the six part test for dismissal pursuant to Rule 4.31 as set out in leading Alberta authority. When applying the test, Justice Nixon found that there was inordinate delay because the Action was a simple tort claim commenced in October 2004 but it had not yet been set down for Trial by May 31, 2016 when the Defendant brought its Application. The Court noted that delay does not cease to be inordinate simply because the Plaintiff is self-represented. However, Justice Nixon found that there was an explanation for the delay, which made it excusable. In this case, the Plaintiff was under the impression during the first six years of the litigation that it was a collaborative process with the Defendant Administrator. Once the Plaintiff was informed that the process was not a collaborative one, he made significant efforts to move the matter along but experienced unexpected delays in obtaining expert reports.

Nixon J. held that because the delay was excusable, the Defendant could not rely on the presumption of prejudice and had to demonstrate actual prejudice. Justice Nixon found that the Defendant had not established prejudice. On the contrary, because the Defendant was a statutory body, prejudice did not arise solely from having an Action outstanding for a prolonged period. Nixon J. stated that, even if the delay was inexcusable, it would not be appropriate to dismiss the Action given the significant steps the Plaintiff took to advance the Action in the three years immediately prior to the Application. Justice Nixon dismissed the Application.

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