ZIOLKOSKI (RE), 2022 ABQB 548
4.31: Application to deal with delay
4.33: Dismissal for long delay
13.18: Types of affidavit
Both parties in the matter brought Applications. Both parties sought to have portions of the opposing party’s Affidavit struck for, among other things, including legal conclusions and hearsay when each party was also seeking final determination of matters through Summary Judgment. The Defendants, specifically, sought to have the Action dismissed for long delay.
The Court noted that Rule 13.18 was applicable because both parties had sought final determination of matters through Summary Judgment; the Affidavits had to have been sworn on the basis of personal knowledge and to comply with the common law, in addition to the Rules.
The Court noted that both the Plaintiff’s and the Defendants’ Affidavits contained hearsay or were “based on information by counsel” and contained legal conclusions which were not appropriate for the respective Affidavits. The Court, therefore, stuck those portions from each Affidavit.
As a result, the Court found that neither party’s Affidavit (absent the evidence that had been struck) provided the necessary basis on which the Court could grant Summary Judgment in favour of either Applicant.
The Court noted that, even if the portions of the Defendants’ Affidavits were not struck, their Delay Application pursuant to Rules 4.31 and 4.33 would have failed, nonetheless. The Court found that in accordance with the three-step process set out in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd., 2019 ABCA 49, the Defendants did not prove the necessary facts. The Court did not agree with the date the Defendants asserted was the last significant step in the Action.
More specifically, the Court found the Defendants’ decision to delay Trial through an adjournment so as to be able to be granted access to the Plaintiff’s psychological records (for an expert report) contributed to the delay. The Court determined that the Defendants could not benefit from their decision to delay the Trial and that the Defendants were at least partially responsible for the lack of communication that occurred after access to the Plaintiff’s psychological records had been granted. The Court understood that rewarding the Defendants for delaying the Trial would be contrary to Rule 4.31(3) such that the delay was not inordinate or inexcusable.
The Court additionally found that the Rule 4.33 three-year drop-dead rule had also not been triggered on the basis significant steps had been taken less than three years apart. The Court understood the significant steps included: the granting of an Order, the Plaintiff’s request for a new trial date, and subsequent Case Management Meetings.View CanLII Details