TRANSAMERICA LIFE CANADA v OAKWOOD ASSOCIATES ADVISORY GROUP LTD, 2018 ABQB 320
4.31: Application to deal with delay
4.33: Dismissal for long delay
The Defendant, George Goulet, and his business organizations applied under Rule 4.31 to dismiss the Claim against them on the basis of delay. The Claim was commenced in February 2007, and the Application to dismiss was filed in August 2017.
Master Robertson found that delay occurred in the Action, but the issue was whether there was significant prejudice as a result, noting that there is a rebuttable presumption of significant prejudice if the delay is found to be inordinate and inexcusable.
The Applicants asserted both non-litigation prejudice and litigation prejudice, referring to the 10 years which had elapsed from the filing of the Claim, and the nature of the allegations which it contained. The Applicant asserted that the nature of the allegations (which were tantamount to fraud) had a negative impact on his ability to do business. The Respondent asserted that the Applicant had not provided sufficient detail concerning the non-litigation prejudice. The Respondent also tendered opinion evidence from a senior lawyer who remarked that the progress of the Action “cannot be said to be unusual” and that he was generally aware of matters which had “taken as long or longer”. Master Robertson held that the lawyer’s opinion did not address the issue of prejudice. In addition, the reference to other cases, which had taken as long or longer to proceed to Trial, were irrelevant as each case is fact-specific. Further, the introduction of Rules 4.31 and 4.33, and the application of and comment on those Rules by the Alberta Court of Appeal indicate that the Court is encouraged to utilize the tools available to dispose of claims which have languished unreasonably.
Ultimately, Master Robertson found that the delay was not inordinate and inexcusable, noting that Mr. Goulet had himself contributed to the delay by at least three years. Further, Master Robertson found that the Applicant had not been able to demonstrate actual prejudice, noting that the reputational harm was not “oppressive”. If it had been, the Applicant would have been less likely to contribute to the delay. Finally, although both Parties were having difficulties obtaining evidence from witnesses, Master Robertson found that the Applicant had failed to demonstrate how the unavailability of certain witnesses would impair his ability to defend himself.
Master Robertson accordingly held that dismissal of the Action was not appropriate. However, Master Robertson issued a Procedural Order under Rule 4.31 which set timelines for the required steps to have the Action set down for Trial.View CanLII Details