SUN LIFE ASSURANCE COMPANY OF CANADA v TOM 2003-1 LIMITED PARTNERSHIP #2, 2010 ABQB 815
5.12: Penalty for not serving affidavit of records
The Defendant brought an Application seeking a Costs penalty under Rule 5.12. The Application related to the Plaintiff’s failure to comply with service of its Affidavit of Records in a timely manner.
The Plaintiff stated that, admittedly, its Affidavit of Records was late, but only by one week; that the late filing was through the inadvertence of Counsel; that there was no prejudice to the other side; and that there was no substantial delay or disruption to the litigation by the late filing.
The Defendant’s position was simply that the Plaintiff was late and that Rule 5.12 is a strict rule, thus a double Costs award should issue. Tilleman J. reviewed Rule 5.12, specifically what was intended by the language of “sufficient cause”. His Lordship noted that there was a difference between the mandatory language of the former Rule (Rule 190) versus the discretionary language of Rule 5.12. Justice Tilleman observed that sufficient cause meant a “neglect that is excusable on sufficient grounds based on diligence of the party that has not been relieved by any other section of the Rules, or a statute, or a related Court ruling”. His Lordship clarified that:
Diligence means the filing party did everything it could but ran into extraordinary circumstances over which it had no practical control. Sufficient cause under Rule 5.12 will be a hard test to meet and certainly will never be captured by facts that suggest “oops, I forgot”.
After reviewing the circumstances of this case, Justice Tilleman determined that double Costs ought to be awarded
pursuant to Rule 5.12.
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