Applications to dismiss two Actions for long delay resulted in a dismissal of both Actions pursuant to both Rules 4.31 and the “five-year drop dead” rule.

The Court in both Decisions (see also 2011 ABQB 595) referred to Brar v Pawa, 2010 ABQB 779 as authority for the proposition that the presumption of serious prejudice caused by inordinate and inexcusable delay is preserved under Rule 4.31 and that such prejudice is sufficient in and of itself to have the Action dismissed without evidence from the Respondent to rebut the presumption. Referring to Kuziw v Kucheran Estate, 2000 ABCA 226, the Court determined that “inordinate” is determined in light of all the circumstances of a particular case, and that the burden to show such delay is on the Applicant. Once “inordinate” has been made out, the natural inference is that such delay is inexcusable, and a finding of inordinate delay shifts the onus to the Respondent to provide an excuse (to rebut the presumption). Referring to Ravvin Holdings Ltd v Ghitter, 2008 ABCA 208, Lee J. asserted that if and when a presumption of serious prejudice has been rebutted, actual prejudice must be found, such prejudice needing to occur during the period of inordinate delay. His Lordship added that actual prejudice can take two forms: (1) prejudice that affects the ability of the Applicant to defend himself at Trial, such as lost witnesses, destroyed documents or faded memory, or (2) prejudice found collaterally in the difficulty a litigant has in conducting his affairs with an Action hanging over his head. The Respondents in both Applications failed to put forward evidence to rebut the presumption of serious prejudice.

In University of Alberta v Chang, 2011 ABQB 596, Lee J. (subsequent to discussing the above law) suggested that Rule 4.31 requires the Applicant, at the first instance, to show inordinate and inexcusable delay, as well as to provide evidence of prejudice. The Court referred to Weins v Dewald, 2011 ABQB 400 for this proposition. [Editor’s Note: this approach appears to be inconsistent with the earlier decision in University of Alberta v Chang, 2011 ABQB 595. Further, it is unclear what portion of Weins supports this proposition.]

In the Court’s analysis of Rules 4.33 and 15.4 in both Decisions, Lee J. referred to Hooda v HSBC Canadian Direct Insurance Incorporated, 2011 ABQB 196 and Bahcheli v Yorkton Securities Inc, 2010 ABQB 824 as authority that the former “five-year drop-dead” rule remains applicable. The Court referred to Morasch v Alberta, 2000 ABCA 24 for the proposition that a functional approach should be taken to measure whether a “thing” during the relevant time period has genuinely furthered the litigation in a meaningful way. Lee J. pointed out that the mere setting of dates for Examinations for Discovery is not a “thing” that significantly advances an action in any material way. His Lordship determined that the Court must dismiss an action for long delay upon finding that five years has expired since the last “thing” done that significantly advanced an Action. Further, the question of prejudice to the party applying for such dismissal is irrelevant when there has been such a five-year delay.