The Defendant, the Better Business Bureau of Southern Alberta (“BBB”), applied to have the Action against them dismissed for delay under both Rules 4.31, and 4.33. BBB argued that the Plaintiffs had shown a pattern of doing just enough to save the Action from long delay applications over the 14 year history of the Action. The Plaintiffs argued that the recent delays in moving the Action forward was attributed to the Defendant, and that the Defendant had failed to preserve the evidence which they then claimed was prejudicial due to its absence.

The Action was commenced in October, 2002, and the parties exchanged Affidavits of Records in October and November 2003. In 2008, BBB’s counsel informed the Plaintiffs’ counsel that BBB was not prepared to Question the Plaintiffs’ until the Plaintiffs remedied their deficient Affidavit of Records. The Plaintiffs provided some of the requested records in February 2009. Questioning of BBB’s representative occurred in April, 2009, and answers to Undertakings were provided in October, 2009. In March, 2012, Plaintiffs’ counsel served written interrogatories to be answered by BBB, which were completed in December, 2013. In the written interrogatories, the vast majority of the answers indicated that BBB had been unable to locate the information needed. In June and August 2014, Plaintiffs’ counsel requested that BBB Question the Plaintiffs’ representative. BBB’s counsel responded in December 2014 that BBB was still not prepared to conduct Questioning until the Plaintiffs’ Affidavit of Records was remedied. No response was given to the December, 2014 letter.

Master Prowse determined that there was inordinate delay, as set out in Rule 4.31(2), given that the Action was almost 14 years old, and that Questioning of the Plaintiffs’ representative had not yet taken place. Master Prowse examined the entire history of the Action and found that the delay was inexcusable, since a total of 7 years and 10 months’ delay was attributable to the Plaintiffs over the life of the Action. The Plaintiffs argued that they did not have the ability to compel BBB to bring an application to establish the adequacy of the plaintiffs’ Affidavit of Records. Master Prowse noted however, that the ultimate burden for moving a matter forward still lies with the Plaintiffs, and that they could have moved to disentitle BBB from Questioning and to set the matter down for Trial, which would have, at a minimum, resulted in a procedural Order dealing with the scheduling of Questioning of the Plaintiffs. As a result of finding the delay inordinate and inexcusable, prejudice to BBB was presumed under Rule 4.31(2).

The Plaintiffs argued that the evidence raised a legitimate doubt about the presumption of prejudice under Rule 4.31(2), since many of BBB’s officers or employees were still alive and could be called as witnesses by BBB, and BBB’s relevant and material documents had all been delivered to counsel and therefore preserved. BBB countered that, essentially every support staff or lower level manager who was involved in the matters in dispute could not be located. Furthermore, BBB asserted that a claim in defamation is not document based rather, it is a fact driven analysis. Master Prowse held that the evidence did not raise a legitimate doubt about the existence of prejudice, and found that, had there been a doubt, the evidence was sufficient to demonstrate actual prejudice due to the unavailability of key witnesses. As a result, Master Prowse dismissed the Action pursuant to Rule 4.31.

Master Prowse held that the answers to Interrogatories provided in December, 2013, significantly advanced the Action, and that this occurred less than 3 years before the 4.33 Application was commenced. The Rule 4.33 Application was therefore dismissed.