The Appellant appealed a Decision of a Case Management Justice (the “CMJ”) dismissing its Counterclaim against the Respondent for inordinate delay under Rule 4.31. The Appeal was unsuccessful.

Writing for the Court, Antonio J.A. explained that CMJs have detailed knowledge of the progress of an Action and can best assess the reasons for and effect of delay. Dismissing Actions for delay involves an element of discretion and such decisions are entitled to deference on appeal unless the discretion is based on an error in principle or is clearly unreasonable. Whether the prosecution of an Action was delayed, whether the delay was “inordinate and inexcusable”, and whether the delay caused “significant prejudice”, are largely questions of fact. Therefore, a Decision to dismiss an Action for delay will by disturbed on Appeal only if it discloses a palpable and overriding error.

If there is delay in an Action and the delay caused significant prejudice to a party, Rule 4.31(1)(a) allows for the dismissal of the Action. Rule 4.31(2) presumes significant prejudice if the delay is found to be inordinate and inexcusable. Lastly, in determining whether to dismiss the Action or to find delay that is inordinate and inexcusable, Rule 4.31(3) requires the Court to ask whether the party applying to dismiss the Action has participated in or contributed to the delay.

The CMJ found inordinate and inexcusable delay in the prosecution of the Counterclaim and thus prejudice was presumed. However, the CMJ also found prejudice in fact. Appeal Justice Antionio noted that Rule 4.31 permits dismissal where the Applicant proves actual prejudice, “whether or not the presumption has also been proved”.

The Appellant argued that the CMJ failed to properly consider the facts and evidence. The Court noted that while the CMJ addressed these matters in a generalized way, he did not commit palpable or overriding errors in his findings or the characterization of facts. The CMJ’s reasons were reasonably intelligible even if he did not recite every fact and nuance of argument in his conclusions, as he was not required to do so.

Lastly, the Appellant suggested that the CMJ erred in finding prejudice to the Respondent from the “potentially failing memories” of witnesses absent cogent evidence. The CMJ relied on Song v Alberta, 2020 ABKB 583 for the proposition that “’there is no requirement that a defendant provide proof of failing memories’ which the ‘law recognizes … weaken over time’”. Further, he found evidence that the certain witnesses’ memories were indeed failing. The Court of Appeal found that the CMJ cited the correct law and properly applied it to the facts before him. The Appeal was dismissed.