Labrenz J

4.31: Application to deal with delay

Case Summary

The Defendant had successfully applied for dismissal of the Action for delay pursuant to Rule 4.31. Dismissal was granted in an oral judgment, with Justice Labrenz reserving jurisdiction to issue written reasons with non-substantive revisions. Those reasons were released as Trademark Calgary Holdings Inc v Hub Oil Company Ltd, 2019 ABQB 42.

In the course of providing written reasons, Justice Labrenz became aware that a Master’s Decision relied upon in argument, Nova Pole International Inc v Permasteel Construction Ltd, 2017 ABQB 521 (“Nova Pole”), had been overturned on Appeal to Justice Ross. As such, Justice Labrenz provided Supplemental Reasons to address the development.

In the Supplemental Reasons, Justice Labrenz considered the reliance by the Plaintiff, as well as the Court in Nova Pole, on Ravvin Holdings Ltd v Ghitter, 2008 ABCA 208 (“Ravvin”). In Ravvin, it had been accepted that the presumption of prejudice as a result of delay could be rebutted by raising a legitimate doubt as to the existence of serious prejudice. His Lordship acknowledged Justice Ross’ decision that this proposition in Ravvin was no longer good law, on account of more recent appellate authority withheld that the presumption of prejudice was only rebutted with proof on a balance of probabilities that significant prejudice had not been suffered. However, Justice Labrenz was clear that neither his analysis nor conclusions in the instant case were affected by the development, as the Plaintiff had failed to raise any doubt as to whether prejudice had been incurred by the Defendant.

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