TIGER CALCIUM SERVICES INC v SAZWAN, 2019 ABQB 665
1.2: Purpose and intention of these rules
4.31: Application to deal with delay
The Defendants applied pursuant to Rule 4.31 to dismiss the Action for delay. The Statement of Claim had been filed in December of 2016, and as of August of 2019, the Action had not proceeded to Part 5 Questioning. The Statement of Claim originally named thirteen Defendants, and included allegations of fraud and conspiracy which were hotly contested. The Defendants had filed thirty Applications in the Action, while the Plaintiffs had filed nine.
Justice Shelley applied the six considerations for Applications pursuant to Rule 4.31 set out by the Court of Appeal in Humphreys v Trebilcock, 2017 ABCA 116 (CanLII): 1) whether the non-moving party failed to advance the Action to the point that a litigant acting reasonably would have attained; 2) whether the shortfall of progress qualified as inordinate; 3) if the delay was inordinate, did the non-moving party provided an explanation for the delay; 4) if the delay was inordinate and inexcusable, has the delay impaired a sufficiently important interest of the moving party to warrant dismissal of the Action (has the moving party demonstrated significant prejudice); 5) if the moving party relied on the presumption of significant prejudice created by Rule 4.31(2) where the delay was inordinate and inexcusable, has the non-moving party rebutted the presumption; and 6) if the moving party met the criteria to dismiss the Action under Rule 4.31(1), was there a compelling reason not to dismiss the Action?
The Defendants noted that the nature of the Action, including allegations of fraud, required the Action to be prosecuted with greater diligence and expediency than not. The Plaintiffs relied on Rule 1.2, which requires both parties to identify the real issues in dispute and facilitate the quickest means of resolving the claim at the least expense.
Justice Shelley noted that the Action was complex and hotly contested, and that there was no delay considering the complexity and circumstances of the Action. Shelley J. noted that if there was delay, it would not constitute inordinate delay, and in any event, the Plaintiffs had explained the delay, noting the sheer volume of steps taken. Justice Shelley considered whether the Defendants had suffered significant prejudice, and noted that the Defendants’ bare assertion of prejudice was insufficient to establish litigation or non-litigation prejudice.
Justice Shelley found that there was no delay or inordinate delay, and thus no remedies were available to the Defendants. The Application was dismissed with Costs to the Plaintiffs.View CanLII Details