Courts are now more willing to use the 3-year drop-dead Rule. But some judges and masters still are very reluctant to use Rule 4.31 on inordinate delay. Others have noticed that the culture of tolerance for all delays has shifted, that criminal litigation gets dismissed after 2 or so years without a trial, and that all forms of summary disposition are now favored by the courts. See Humphreys v. Trebilcock 2017 ABCA 116,  7 WWR 343 (¶ʼs 90-101, 142-43), leave den (SCC 14 Dec ʼ17); Song v. Fong 2019 ABQB 119, JCE 0903 18386 (Feb 22) (¶ 42).
It is disappointing that a few decisions still deny all relief after a suit has dozed with only a little sleepwalking, and 15 years have passed since the events litigated. One wonders whether counsel have cited enough recent case law. Such authority is not hard to find, e.g. in the Civil Procedure Handbook.
A host of legal and logical fallacies can be found in many such do-nothing decisions. Letting a very old lawsuit keep staggering slowly on, is almost impossible without such fallacies. Here are 6 of those fallacies.
Fallacy 1. That Rule 4.31 is “discretionary”. This is not always wrong, but often it is. The word quoted is vague. Not all procedural law is discretionary. It is true that Rule 4.31 says “may” not “shall”; but where legal grounds for an order under a Rule are made out by evidence, the judge or master has no right to refuse the order. Still less to do so because the conduct of the party moving is not likeable. Rule 4.31 is not an equitable remedy. The court’s refusal to act must be based on compelling legal grounds.
Fallacy 2. That if the court does not dismiss the action, it should simply deny the application with costs. But R. 4.31(1) gives two alternate remedies. The second is to make a procedural order such as imposing deadlines (¶ (b)). Case law says that there is either irremediable prejudice from the delay, or there is not. If it is remediable, the court must remedy it by proper terms and conditions. Simply to find delay, excuse it, and dismiss the application, is illogical and bypasses the court's duty. Remediable prejudice is still prejudice, unless and until is it remedied, not waived. The remediable must be remedied. See Megatrend Hldg. v. Glenbow-Alta. Inst. 2008 ABCA 236, 433 AR 203 (¶ 11); Ro-Dar Contr. v. Verbeek Sand & Gravel 2016 ABCA 123, 616 AR 366 (¶ʼs 18, 30-33) (on R. 4.33).
Fallacy 3. That if the defendant ever dragged his or her heels during the suit, or ever contributed to the delay, then the defendant has sinned, and the plaintiff’s delay is all forgiven. There is no basis for that in the Rule or case law. The plaintiff alone has the duty to move the suit along. In the first place, Rule 4.31(1)(a) only requires delay and significant prejudice. Case law does say that the delay must be inordinate (i.e. too long), but that is all. That subrule does not require that the delay be inexcusable. If it were all excusable, then a remedial order putting duties on both parties would be called for. Excusable delay is only mentioned in subrule (2). Excusable delay does not create a presumption of prejudice, but inexcusable delay does. However, no presumption is needed if there is actual evidence of prejudice. If some of the delay is excusable and some is not, the inexcusable delay does not disappear. If it is inordinate, the suit still should be dismissed. If a simple suit is over 15 years past the events and not ready for trial, how can all the delay be excusable? If the defendant has refused or neglected to carry out his duty (e.g. to give discovery), has the plaintiff applied to compel performance or to get a timetable adopted? It is not enough for a plaintiff to write letters and whine, for 15 years. On excuses, see Barlot v. Eisner 2017 ABQB 636, 2017 CarswellAlta 2174 (¶ʼs 35-39); Humphreys v. Trebilcock, supra (¶ʼs 173-75); Song v. Fong, supra (¶ʼs 18-21).
Fallacy 4. That memories do not fade or are not important. But evidence filed for an application proves more than what it directly proves; evidence also enables all reasonable inferences. Even to found summary disposition of substantive questions by an application. After 15 years, the inference that almost all witness’ memories and evidence have faded or gone, is almost inevitable. See Wong v. Chambers 2011 ABCA 278 (one JA) (¶ 12) (on R. 515.1); Humphreys v. Trebilcock, supra (¶ʼs 24-27, 35, 182); Stabilized Water of Can. v. Better Bus. Bureau etc. 2019 ABCA 146, Calg 1801 0007 AC (Apr 23); Song v. Fong, supra (¶ʼs 31-37). Some cases mention in passing fading memory, but then do nothing about it. I repeat that no presumption under subrule (2) is needed if evidence of prejudice is given under subrule (1).
Fallacy 5. That on a R. 4.31 motion, prejudice requires proving whether the plaintiff would be prejudiced by the delay. But someone who explodes a hand-grenade in public is not forgiven on the grounds that the shrapnel hurt him too. The issue is whether he injured others. It is true that subrule (1) speaks of “prejudice to a party”, but that word “party” allows for third parties. If the delay prejudiced the plaintiff only, no one would apply to dismiss, and no court would dismiss. Prejudice to the plaintiff is irrelevant. If the delay has caused “significant prejudice” to a defendant or a third party, then their ability to defend themselves at trial (or for summary dismissal) is impaired. That is all that the Rule requires. Defendants do not have to show that they would lose the trial. Nor show that the prejudice was grave: it need only be “significant”, i.e. more than minor or trivial. That there would be prejudice to the plaintiff does not mean that the prejudice to the defendant or third party disappears or shrinks. There is no legal point to worrying about self-inflicted injuries. That fallacy only leads courts to engaging in a lot of speculation. See Song v. Fong, supra; Humphreys v. Trebilcock, supra (¶ 128).
Fallacy 6. That proof of prejudice from lost evidence requires proof of the contents of that evidence and its effect, strength, and replaceability. This is an almost perfect Catch-22. Often there is an incident involving an accident, or a discussion, or poor performance, and the plaintiff is still here and well after 15 years. But an eyewitness, or the defendant's officer present at the event, has since died or disappeared. Now what? Must the defendant get an affidavit from the dead or missing people telling what they would have said? And then prove in chambers how useful that postulated evidence would have been at trial? That is patently impossible. Much precedent infers that the unobtainable person must have got some personal knowledge of the key event. That is enough. Some cases have suggested that loss of eyewitnesses does not matter if documentary evidence has survived. But later authority shows that the plaintiff would have to show that the documents fully cover all of the topics and are admissible for proof of their contents. Rarely can that be demonstrated. A vague reference to “documentary evidence” is not enough. See Humphreys v. Trebilcock, supra (¶ʼs 130, 184-85); Stabilized Water v. Better Bus. etc., supra (¶ 6); Song v. Fong, supra (¶ 38); cf. Megatrend v. Glenbow, supra (¶ʼs 6-8).
Some of these fallacies can be found at work, in Scott v. Cargill (M) 2019 ABQB 308, JCC 0401 00526 (May 1).
– Hon. J.E. Côté
The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.
Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.
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