slatter, o'ferrall and schutz jja

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

Case Summary

The Appellants (Defendants) appealed the Chambers Judge’s Order which affirmed a Master’s Decision to dismiss the Appellants’ Application to dismiss the Action for inordinate delay pursuant to Rule 4.31. At the time of the Application, the Action was over 10 years old, and Questioning had not yet been completed. The Master and the Chambers Judge both found that there was inordinate delay, but both determined that the delay was excusable on account of the Appellants’ contributions to the delay. The Master and Chambers Judge both also found that there was not significant prejudice to the Appellants.

The Appellants asserted that the Chambers Judge erred by departing from the six step analysis set out in Humphreys v Trebilcock, 2017 ABCA 116 (CanLII). The Panel held that “there is no universal mandatory formula” for determining the application of the delay Rules, and that the essential elements of the test are set out in the text of Rule 4.31 itself. The Panel held that there was no conceptual error in the way the Chambers Judge analyzed the Application.

The Panel also considered the Appellants’ assertion that inaction by the Defendant cannot create an excuse for delay by the Plaintiff. The Panel noted that the Plaintiff does have the “primary obligation” to move the litigation forward and that the Defendant does not have to take action in the face of Plaintiff inaction; however, the Panel noted that this did not displace the Defendant’s duty to discharge its procedural obligations and to cooperate in an effective way with the Plaintiff’s efforts to progress the Action. The Panel noted that Rules 1.2 and 4.1 both establish the general obligation for all parties to manage litigation and to plan for its resolution in a timely and cost effective manner, and that there were numerous examples of specific duties on Defendants to take steps within a specific or reasonable amount of time. The Panel thus confirmed that a Defendant’s delay is relevant to an Application under Rule 4.31.

The Panel held that the question of whether delay is excusable is a question of fact which is entitled to deference unless based on an error of law or principle. The Panel found that the Chambers Judge did not err in law or principle by relying on the Appellants’ conduct to find that the delay was excusable. The Appellants asserted the Chambers Judge erred by finding that there was no prejudice on account of the delay. The Panel noted that a Chambers Judge’s conclusion as to whether there is significant prejudice which would justify dismissal of an Action is discretionary and entitled to deference. The Panel found that the Chambers Judge’s findings were supportable on the record and did not disclose any errors that would justify appellate intervention.

The Appeal was dismissed.

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