Mah J

4.31: Application to deal with delay
4.33: Dismissal for long delay
9.15: Setting aside, varying and discharging judgments and orders

Case Summary

The Defendant sought to dismiss the Action for long delay. It had initially applied to dismiss the Action for delay under Rule 4.33, but later amended its Application to seek dismissal under Rule 4.31 instead.

The Plaintiff’s claim was served in March, 2014. Although the parties had stayed in touch through counsel “at various points”, no steps were taken in the litigation until the Defendant applied to dismiss the Action for delay in April, 2017. The next day, the Plaintiff noted the Defendant in default, and filed and served its Affidavit of Records. In April, 2017, a Master dismissed the Defendant’s Application to dismiss for delay, and set aside the Plaintiff’s Noting in Default pursuant to Rule 9.15. The parties agreed to appeal both Decisions to a Justice, and that Appeal was heard by Justice Mah in April, 2019.

Justice Mah reviewed the factors for determining whether delay has been inordinate from the Court of Appeal’s decision in Humphreys v Trebilcock, 2017 ABCA 116 (CanLII). His Lordship found that the 3-year period between service of the Statement of Claim and the Noting in Default constituted an unreasonable and inordinate delay – but the delay was justified because negotiations had occurred during the first year of the litigation, and some of the delay was caused or contributed to by staffing issues and the Fort McMurray wildfire. His Lordship clarified that Rule 4.31 does not require that a “significant advance” occur to justify delay, as required by Rule 4.33; while the Action did not proceed as quickly as one would hope, both sides evidently acquiesced to the “languid pace of the litigation”. As such, the Action was not dismissed pursuant to Rule 4.31.

Next, Justice Mah considered whether the Plaintiff’s Noting in Default should be set aside. It had occurred after a number of extensions were given to the Defendant to file a Statement of Defence. In March, 2017, one last deadline was set and the Defendants’ Statement of Defence was demanded within 20 days. Approximately 2 weeks later, the Defendants filed their Rule 4.33 Application, and the Plaintiff’s counsel advised he would be noting the Defendants in default the next day. The Defendants did not file a Statement of Defence as they were concerned that doing so could constitute acquiescence to the delay for the purposes of Rule 4.33. Justice Mah held that this was an “explainable default”: the Defendants initially understood that they were not required to file a Statement of Defence, and thereafter could not practically file a Statement of Defence before being noted in default. His Lordship also held that the Defendants had a meritorious defence, and that overall, the just and fair thing to do was to set aside the Noting in Default under Rule 9.15.

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