The Crown brought an Application to dismiss an Action for long delay which related to alleged abuses the Respondent was subjected to in the 1970s and 1980s while in the care of the Alberta Government. The Application was filed on October 21, 2013 pursuant to Rule 15.4 and Rule 4.31. Rule 15.4 had been repealed by the time the Application was heard and Rule 4.33 was in effect, which changed the period of inexcusable delay from more than five years to more than three years.

Crighton J. first considered which period of inexcusable delay applied to the Application and held that, while Rule 4.33 governed the Application, transitional Rule 15.4 preserved the five year clock and “should be interpreted to mean that the relevant period of inexcusable delay must be determined by the date the Application was filed, not heard”. The application of Rule 15.2 did not affect this interpretation.

The Court reviewed the litigation activity from the five year period immediately preceding the date the Application was filed to determine whether anything genuinely advanced the Action. Crighton J. confirmed that: (i) the present approach to Rule 4.33 is a functional one with a focus on substance and effect rather than on form; and (ii) the test under former Rule 244 still applies to new Rule 4.31, namely that the Applicant must demonstrate an inordinate, inexcusable delay that is likely to cause serious prejudice.

During the five year period, the acts taken primarily involved a change in representation for the Respondent, conditional upon a successful Application for advanced Costs, and some steps pursuant to the Application for advanced Costs. Just prior to the Application for dismissal for long delay, the Respondent requested that a Case Management Justice be appointed. Crighton J. stated that an Application for advanced Costs is neutral; because the Application was brought by counsel who was not yet retained on the file, it was essentially an act taken by a third party for funding which is neutral to the issue of advancing litigation. In the meantime, original counsel did not cease representation and was responsible for advancing the Action. The request for Case Management did nothing to significantly advance the Action, and given the nature and timing of the request, it was held to be nothing more than an attempt to do something before Rule 15.4 was repealed.

Crighton J. then considered whether any exceptions applied under Rule 4.33, specifically whether the Respondent’s participation in the Application for advanced Costs was done for a purpose and to the extent that warranted the lawsuit proceeding under Rule 4.33(1)(d). Crighton J. held that it did not because the Application and the issues stood apart from the main Action.

The Action was dismissed under Rule 4.33, but Crighton J. also analyzed the delay under Rule 4.31, which required a broader review and assessment of the entire progress of the Action from its commencement to the date the Application was filed. The Court referred to the foundational principles in Rule 1.2 which require “the parties to engage in purposeful, efficient, and timely litigation”. The Action was commenced on August 31, 2001. The only step attributable to advancing the main Action was the filing of the Statement of Defence and Affidavits of Records in 2007. No questioning had been commenced, nor any other significant steps taken, notwithstanding the Respondent being represented by counsel during the period of delay. Such facts amounted to an inordinate delay which was prima facie evidence of serious prejudice. The Respondent submitted no excuse or legitimate doubt on the question of prejudice, and therefore Crighton J. would have also dismissed the Action under Rule 4.31.