ELS Marketing Inc. (“ELS”) appealed a Case Management Order dismissing its Counterclaim against WestJet for prejudicial delay after 13 years of litigation.

ELS argued the Case Management Judge erred in finding inordinate and inexcusable delay, or that ELS failed to rebut the presumption of significant prejudice. ELS also contended that WestJet’s role in the delay was not adequately considered.

The Court of Appeal emphasized that a finding of delay is a question of fact. As such, a Case Management Judge’s finding can only be overturned on appeal if there is a palpable and overriding error. Whether delay is inordinate and inexcusable is discretionary and given the Case Management Judge’s detailed knowledge of the litigation process, they are best suited to assess the causes and consequences of delay.

The Court acknowledged that while failing to consider the Defendant’s role in the delay is an error in principle, it clarified that the inadequacy of reasons does not automatically warrant an appeal, provided the reasons are reasonably intelligible to the parties and not subject to excessive scrutiny or taken out of context. Finally, the Court reaffirmed that under Rule 4.31, it has the authority to dismiss any claim or counterclaim where the plaintiff’s delay has significantly prejudiced the defendant.

The Court of Appeal agreed with the Case Management Judge that ELS’s 13-year delay was both inordinate and inexcusable. ELS was largely responsible for the delay. It failed to produce documents or prepare witnesses, was slow to amend, and was not Trial ready. The Court of Appeal rejected ELS’s argument that the delay was justified by external events such as a prior appeal or COVID-19, noting these accounted for only a small part of the delay. The Court of Appeal also dismissed ELS’s claim that WestJet contributed to the delay, affirming that WestJet had satisfied its procedural obligations.

Further, the Court of Appeal upheld the presumption of significant prejudice due to the delay, stating that a finding of actual prejudice is not required. The Case Management Judge correctly determined that key evidence had been compromised or made unavailable because of delay. Additionally, the Court of Appeal rejected ELS’s argument for a litigation plan, highlighting that the case remained unready for Trial after 13 years, and that no procedural mechanism could restore lost evidence or faded witness memories.

As a result, the Appeal was dismissed.