TAM v FONG

This Application concerned whether a long-running Class Action should be dismissed for delay under Rule 4.31. The Action, commenced in 2013, alleged that clients of a law firm were induced to invest in a fraudulent scheme. The Defendant law firm applied to dismiss the action for inordinate and inexcusable delay.

Justice Hall reviewed the procedural history in detail and emphasized that Rule 4.31 requires a contextual assessment of delay, including whether the delay is inordinate, inexcusable, and has caused significant prejudice, as well as whether the Applicant contributed to the delay. As Case Management Justice of the Action since 2014, Justice Hall considered the pace of the proceeding against the realities of a complex class action.

Justice Hall found that much of the delay arose from prolonged and contested document production and privilege issues involving the Law Society of Alberta, which consistently opposed disclosure and was not a party to the Action. Although the privilege process took several years to resolve, Justice Hall held that this delay could not fairly be attributed to the Plaintiffs or their counsel. Steps toward certification proceeded, certification was ultimately granted, and questioning could not meaningfully occur until document production was complete.

Justice Hall concluded that, while the Action had taken a long time to reach readiness for Trial, the delay was neither inordinate nor inexcusable within the meaning of Rule 4.31. Scheduling difficulties, institutional delay, and third-party privilege disputes materially contributed to the timeline. Dismissing the action in those circumstances would be unjust.

The Application to dismiss under Rule 4.31 was denied. Costs of the Application were awarded to the Plaintiffs, and the Parties were directed to propose a schedule to move the matter to trial.