SONG v FONG, 2019 ABQB 119

Mah J

1.2: Purpose and intention of these rules
4.31: Application to deal with delay

Case Summary

The Defendant appealed the Decision of a Master which dismissed the Defendant’s Application to strike the Action for inordinate delay pursuant to Rule 4.31. The Action pertained to events which transpired between June 2004 and October 2006, and the Action was commenced in November 2009. Affidavits of Records had been exchanged, and the Defendant’s records had been produced. Plaintiffs’ counsel had sought dates for Questioning in January 2015, but received no response. In September 2016 a Notice of Appointment for Questioning was served, and a standstill agreement entered in October 2016.

Justice Mah noted that the standard of review on all issues on appeal from the Master was correctness.

Mah J. rejected the argument that the Defendant had caused or contributed to the delay in contravention of its obligations under Rule 1.2 by failing to respond to the request to schedule Questioning, noting that there was no evidence that the Defendant’s failure to respond was anything more than mere inadvertence. Justice Mah held that the Defendant’s failure to respond did not amount to stall or delay tactics. Mah J. found that the delay by the Plaintiffs in the Action was both inordinate and inexcusable. As such, the presumption of significant prejudice created by Rule 4.31(2) was engaged.

Mah J. held that the standard of proof for determining whether the Plaintiff had rebutted the presumption of prejudice was on a balance of probabilities, which had overtaken the previous standard of there being a “legitimate doubt” as to whether there was significant prejudice per Humphreys v Trebilcock, 2017 ABCA 116. Justice Mah found that there were documentary gaps in the record which would have to be filled with witness testimony and that the Defendant’s memory had lapsed concerning several material events. Further, Mah J. noted that the memory of material witnesses was likely to have faded and that if Questioning were to occur it would be 13 to 15 years after the events at issue had taken place. Justice Mah held that significant prejudice to the Defendant had been established independently of the presumption created in Rule 4.31(2). Mah J. allowed the Appeal and dismissed the Plaintiff’s claim. 

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