The Plaintiffs appealed the Application Judge’s decision dismissing the Defendant’s Rule 4.31 Application for Delay. The Defendant had also applied for Summary Dismissal under Rule 7.3, but since the Action was dismissed for delay, the Applications Judge did not deal with that Application in detail.

In dismissing the Defendant’s Action, Kraus J. examined the principles of Rule 4.31 as outlined in Humphreys v Trebilcock, 2017 ABCA 116, focusing on inordinate and inexcusable delay, considering the Action as a whole. Justice Kraus found that the delay was indeed inordinate, as the Plaintiff did not seriously contest this point, with most arguments aimed at justifying the delay. The Plaintiffs argued that personal circumstances hindered their ability to advance the case and claimed that the Defendant played a role in the delay and accepted it.

Justice Kraus acknowledged that 48 months of the delay could be attributed to the Defendant, but he also pointed out that the Defendant had signed Form 37, certifying that the case was ready for Trial and that Trial dates had been established. It took nearly 10 years from the service of the Statement of Claim to set the matter for Trial. Instead of moving forward, the Trial dates were canceled when the Plaintiff submitted their application under Rule 4.31 in November 2022. The Court deemed the delay excusable, noting that any delay following the Defendant's Application and any potential prejudice could not be blamed on the Plaintiff.

The Court evaluated whether the excusable delay caused any significant prejudice. It determined that the Defendant experienced no substantial prejudice, particularly since Form 37 was signed, and had this Application not been filed, the parties would have already proceeded to Trial. The Court acknowledged that this situation was one of the borderline cases concerning Rule 4.31, and such cases typically favor allowing the matter to advance to trial.

The Court briefly considered the Defendants Application under Rule 7.3, focusing on whether the Plaintiff raised on a balance of probabilities a genuine issue to be tried. The Court found that the Plaintiff had met this burden, as there were uncertainties surrounding the facts related to the subject release, which constituted a triable issue regarding the scope of that release. Consequently, the Court allowed the Appeal and dismissed the Defendant's Application under Rule 7.3.