1.2: Purpose and intention of these rules
4.1: Responsibilities of parties to manage litigation
4.2: What the responsibility includes
4.31: Application to deal with delay
4.33: Dismissal for long delay

Case Summary

The Defendant/Applicant applied for dismissal of the Action under Rule 4.31. The Statement of Claim was amended on November 30, 2001 and alleged that the Plaintiff/Respondent was the owner of a parcel of land in Calgary adjoining the Applicant’s land to the south, and that as a result of an explosion in 1999, the Respondent’s facilities released contaminants onto the Applicant’s land.

Since 2005, both parties agreed that several steps occurred which significantly advanced the Action, including Questioning, fulfilling Undertakings, filing an Expert report, and the matter proceeded to an unsuccessful mediation. The Applicant referred to Humphreys v Trebilcock, 2017 ABCA 116 (“Humphreys”) and argued that the Respondent failed to advance the Action along the litigation spectrum between 2001 and the present to the extent that a litigant acting reasonably would have attained. The Applicant also relied on the presumption of prejudice based on what it claimed was an inordinate and inexcusable amount of time.

The Court considered the Court of Appeal’s decision in Ravvin Holdings Ltd v Ghitter, 2008 ABCA 208, and noted that a finding that a delay was inordinate and inexcusable was prima facie evidence of serious prejudice, as opposed to Rule 4.3(2)’s current wording of significant prejudice. However, the Court held that the difference in wording was not crucial for the purposes of its Decision.

The Respondent argued that the case was a “documents” case as opposed to a “witness memory” case, but did not place specific evidence before the Court as to how it intended to advance the Action, despite giving a comprehensive overview of the Action.

The Respondent further suggested that the Applicant had acquiesced to the delay, relying on Goldring v Blue Cross Life Insurance Company of Canada, 2017 ABQB 618 (“Goldring”), but the Court noted that in Goldring, Master Robertson held that the concept of a “waiver” does not apply to Rule 4.31. The Court found that the facts in Goldring were dissimilar to the present case, and would not rely on the case in its Decision.

The Respondent also stated that after checking with the Trial Coordinator, it found that a five day Trial was available as early as June of the present year. The Appellant did not agree that a five day Trial would be sufficient, and the parties had yet to agree on the witnesses to be called. The Court found that even if the Trial proceeded in June of the present year, the Applicant would by that point have waited 17 years and 5 months for a short five day Trial. The Court held that this was not reasonable by any measure.

The Respondent had also suggested that Rule 4.33 meant that Plaintiffs are permitted to go three full years without doing a single thing. The Court found that this argument fundamentally misconstrues the purpose of Rule 4.33, which requires the Court to dismiss an Action if more than three years have passed without a significant advancement in the Action. The Court also found that the Respondent’s suggestion was contrary to Rule 1.2, which obliges parties to openly communicate, and promotes the timely and cost effective resolution of claims. The Court additionally found that the Respondent’s suggestion was also contrary to Rule 4.2, which requires that the parties act in a manner that furthers the purpose and intention of the Rules.

Finally, the Court applied the six part test as set out in Humphreys, and was satisfied that the Applicant had made out a case of significant litigation prejudice. The Court also found that the Respondent had failed to meet its onus to rebut the presumption under Rule 4.31(2).

The Court additionally held that Rule 4.31 would not permit the Court to find that the Applicant had acquiesced to the delay merely through its silence. Further, the Court found that a recent letter from the Applicant requesting an Agreed Statement of Facts was merely an indication of Trial readiness and was not a waiver of the delay. The Court dismissed the Respondent’s Action as a result of the significant prejudice suffered by the Applicant. The Court also held that even if it had erred regarding the significant prejudice, it would have dismissed the Action in any event due to the inordinate delay of 17 years.

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