This was an Application to dismiss an Action for delay pursuant to Rule 4.31. The Court granted the Application and dismissed the Plaintiff's claim.

The Plaintiff commenced an Action against the Defendants in 2010. The claim arose from alleged negligence in the design of a multi-sport arena. Although Affidavits of Records were exchanged, no questioning for discovery took place, and the litigation remained largely stagnant for over 13 years.

The Court found the delay from 2010 to 2023 was both inordinate and inexcusable. Under Rule 4.31(2), significant prejudice was presumed and not rebutted by the Plaintiff. Witness memory loss, unavailable documents, and lost records demonstrated litigation prejudice. The Court emphasized that the Foundational Rules, particularly Rules 1.2 and 1.4, require parties to advance the litigation efficiently and cooperatively; mere participation in procedural steps or consent to amendments does not bar a Defendant from later bringing a delay application.

Although the Plaintiff argued the Defendants’ participation in procedural matters constituted acquiescence to delay, the Court, following Royal Bank of Canada v Levy, 2020 ABCA 338, held that minor participation does not waive the right to seek dismissal, especially when delay is incremental over many years.

Applying Rule 4.31, and recognizing no compelling reason to exercise discretion otherwise, the Court dismissed the Action with costs to the Defendants.