SONG v ALBERTA, 2020 ABQB 583
4.31: Application to deal with delay
6.14: Appeal from master’s judgment or order
In front of a Master, the Plaintiff had successfully defeated an Application for long delay brought pursuant to Rule 4.31. The Defendant subsequently appealed the dismissal by the Master. The parties did not dispute that the delay was inordinate, but the issues on Appeal were (1) whether the inordinate delay was excusable; and (2) whether the Defendant had suffered prejudice that impaired its ability to defend the claim.
The crux of the underlying claim was that Alberta owed the Plaintiff a duty of care by virtue of him being an inmate at the Remand Centre in Edmonton. It was alleged that Alberta failed to prevent a debilitating attack on the Plaintiff, therein breaching its duty of care.
Justice Leonard confirmed that Rule 6.14(3) provides that an Appeal from a Master is on the record and may also be based on new evidence that is relevant and material, including a fresh assessment of the facts.
The Court added that the six-part framework presented in Humphreys v Trebilcock, 2017 ABCA 116 (“Humphreys”) should be the starting point for the analysis of a Rule 4.31 Application, but that there is still judicial discretion. The Court emphasized that the conduct of both parties must be considered when determining whether a delay is excusable.
In applying the Humphreys framework, which focuses on whether an inordinate delay is excusable, the Court found that 38 months of unexplained inactivity was primarily attributable to the Plaintiff. In addition, the Court highlighted that it took four years to finalize the pleadings. The Defendant argued that it could not file a Statement of Defence until it received a response to its Demand for Particulars, and the Court found that delay was also attributable to the Plaintiff. The Court agreed with the Master’s conclusion that the fifteen months it took to obtain the Edmonton Police Service investigative file was primarily attributable to the Plaintiff. The Court also found that the 2.5 years that it took the Plaintiff to fully provide his answers to Undertakings was attributable to the Plaintiff.
In sum, the Court concluded that the inordinate delay was inexcusable, and that prejudice to the Defendant was therefore presumed pursuant to Rule 4.31(2). Accordingly, the Court found that the Plaintiff failed to rebut the presumption and that in the circumstances, the Defendant suffered actual prejudice as a result of the delay. His Lordship underscored that after a 15-year delay, the memories of witnesses have most certainly faded.
Finally, the Court found that there were no compelling reasons not to dismiss the Action for delay, and dismissed the Action against the Defendant.View CanLII Details