4.31: Application to deal with delay

Case Summary

In 2004 the Appellants’ land was expropriated for construction of Calgary’s Stoney Trail “ring road”. The Appellants had been operating a custom sewing business on the expropriated land, and in 2005 the Appellants filed a Statement of Claim for business losses related to the expropriation. By the end of 2018, the Trial for the business losses had not occurred and Alberta applied to strike the Statement of Claim pursuant to Rule 4.31, and the Case Management Justice granted that Application.

On appeal, the Appellants argued that the Rules did not apply to proceedings under the Expropriation Act, RSA 2000, c E-13, namely due to the existence of the Expropriation Act Rules of Procedure and Practice, Alta Reg 187/2001. The Court of Appeal dismissed this argument as flawed and specifically noted how the Rules had been applied in other expropriation cases.

Finding that the Rules applied to the expropriation Action, the Court of Appeal then considered whether the Case Management Justice had erred in the consideration of Rule 4.31. The Court of Appeal advised that the test set out in Humphreys v Trebilcock, 2017 ABCA 116 is one of many potential approaches to determine the application of Rule 4.31, and specifically noted that the Case Management Justice was not obliged to determine a specific answer to the degree of advance expected by a reasonable litigant. Rather, the Case Management Justice simply had to first decide whether there had been delay. The Case Management Justice found there had been delay, that the Appellants could not rebut the presumption that the Defendants had suffered prejudice, and that there was no compelling reason to allow the Action to continue. The Court of Appeal found that the Case Management Justice had not erred in the application of Rule 4.31 and dismissed the Appeal.

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