SONG v HER MAJESTY THE QUEEN IN RIGHT OF ALBERTA, 2021 ABCA 361
SLATTER, SCHUTZ AND GRECKOL JJA
1.2: Purpose and intention of these rules
4.1: Responsibilities of parties to manage litigation
4.2: What the responsibility includes
4.31: Application to deal with delay
5.13: Obtaining records from others
The Appellant appealed a Chambers Judge’s Decision that dismissed an Action for delay, pursuant to Rule 4.31.
The Appeal Court cited Royal Bank of Canada v Levy, 2020 ABCA 338 (“Levy”), which laid out the Standard of Review applicable to a Chambers Judge’s Decision concerning an Application to dismiss for delay under Rule 4.31. In Levy the Court stated that whether an Action should be dismissed for delay engages an element of discretion, and that deference is warranted. The Court in Levy asserted that there is no fixed methodology that must be followed in 4.31 delay Applications, and that the analysis is largely a question of fact. A decision will not be disturbed unless it discloses a palpable and overriding error.
In allowing the Appeal, and ordering the matter proceed to Trial, the Appeal Court reviewed Transamerica Life Canada v Oakwood Associates Advisory Group Ltd, 2019 ABCA 276 (“Transamerica”), where the Court emphasized that all parties bear responsibility for managing their dispute. The Court in Transamerica, citing Rule 1.2, stated that the Rules expressly impose obligations on all parties to advance the Action, including engaging in timely communication. Similarly, Rule 1.2(3)(a) confirms that parties must jointly and individually facilitate the quickest means of resolving a claim. Further, Rule 4.1 states that parties are responsible for managing their dispute and for planning its resolution in a timely way. Further still, Rule 4.2 confirms that this responsibility falls on all parties.
The Court of Appeal in this case found that the Chambers Judge erred in her conclusion that the Appellant was primarily responsible for the delay in finalizing the pleadings. The Court found both parties were responsible for the delay and that a “culture of complacency” had been created between the parties.
The Court of Appeal also found that the Chambers Judge erred in her assessment that the Appellant was responsible for the delay involved in securing a third-party investigative file. While the Appellant could have expedited the process of securing the investigative file by a Rule 5.13 Application, the delay was largely beyond the Appellant’s control and was, therefore, excusable.
Lastly, because the inordinate delay was attributable to both parties, the proviso in Rule 4.31(2) that where delay in an Action “is inordinate and inexcusable, that delay is presumed to have resulted in significant prejudice” was not applicable. There was no evidence of actual prejudice and, therefore, the Court found the Chambers Judge erred in her conclusion that prejudice had necessarily been shown by the long delay.View CanLII Details