4.31: Application to deal with delay

Case Summary

WestJet and ELS were parties to claims that had been subject to case management and protracted litigation for 12 years. WestJet sought to have ELS’s Counterclaim dismissed for inordinate and inexcusable delay, pursuant to Rule 4.31.

McCarthy J. considered the tests for long delay set out in Humphreys v Hanne, 2017 ABCA 116 and Transamerica Life Canada v Oakwood Associates Advisory Group Ltd., 2019 ABCA 276. McCarthy J. concluded that, on the facts, there had undoubtedly been delay by ELS in pursuing its Counterclaim, stating:

Both WestJet's Statement of Claim and ELS's Statement of Defence and Counterclaim in this Action were filed more than 13 years ago. I have been case managing this Action for approximately 12 of those years. The Court of Appeal's decision to reinstate ELS' counterclaim following its partial dismissal was made the better part of nine years ago. The Consent Order permitting amendments to ELS' counterclaim was entered into more than three and a half years ago.

McCarthy J. then turned to consider whether that delay had been inordinate, including consideration of the time elapsed, the resolution of the primary claim, and the various steps taken. McCarthy J. acknowledged that, unlike many cases, this was not a case where the claim had largely been dormant. However, McCarthy J. found that little of the activity on the claim had done anything to advance the matter, and that activity was insufficient to forestall a finding of inordinate delay.

McCarthy J. then proceeded to consider whether the delay was inexcusable, noting that the burden to prove inordinate delay was excusable lies with the non-moving party. The Court held that it was incumbent on ELS to move the claim forward, and it failed to do so. As such, ELS failed to show a credible excuse for delay, and the delay was found to be inexcusable.

With a finding of inordinate and inexcusable delay, a presumption of significant prejudice was applied. ELS had the opportunity to rebut that presumption. The Court did not accept ELS’ arguments regarding prejudice, and found it had not rebutted this presumption.

McCarthy J. acknowledged that Rule 4.31 provided discretion as to whether the claim was dismissed, but found no reason not to dismiss the claim. ELS’ claim was therefore dismissed.

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