Dismissal for Delay

The Court of Appeal has just issued a lengthy judgment on dismissal for want of prosecution under R. 4.31. It touches on undertakings too. It makes many important legal points, and lawyers involved in litigation should read all of it.

However, do NOT misuse it. The judgment says that most of the issues are factual (see ¶ʼs 15-21), and indeed reminds us that previous cases are not authority for their factual decisions, nor for specific lengths of delay periods (see ¶ʼs 20, 48). Nor does the Court of Appeal say that it agrees with the fact findings by the master and chambers judge in this decision. It says that they get deference on appeal, and that there was no operative error in law or principle in that case. It gives hints that some of this was borderline, and could have gone either way. Third, it says that undue delay was beyond doubt in this case (see ¶ʼs 33, 50). The issue there, and usually, was and is prejudice to the plaintiff (see ¶ʼs 21, 42). Do not think that the Court of Appeal has got soft on delay, or has reversed its previous decisions on the point.

There are so many useful statements of law in this decision, that this blog would be unwieldy if I tried to summarize all of them. But here are 5 legal statements in the case which are particularly important, some not well known.

1. It is highly undesirable (indeed impossible) to give a tariff, saying that the boundary of inordinate delay is such-and-such a number of years (see ¶ 20). That is doubly impossible, because ordinarily the big issue is what prejudice the plaintiff has suffered from the delay. Sometimes very short delays would justify dismissing the action if significant prejudice was caused (see ¶ʼs 21, 48). This newest condemnation of trying to fix a number matters, as some recent Edmonton decisions have been suggesting a rule of thumb, a certain number of years.
2. Delay governs, and can be operative if there is significant prejudice: see #1 above.
3. Undertakings given during questioning (examination for discovery) should be answered without any further demand for an answer, and generally well before any scheduled further questioning (see ¶ 39).
4. Relevant defence delay can influence how much delay there has been and whether it is inordinate (see ¶ʼs 28-32, and 48). But if the defendant does nothing when no Rule or order mandates the defendant's action, or sets a deadline, that is probably not defence delay and is not relevant (see ¶ʼs 27, 29, and 31). Conversely, waiting 6 years to ask for the almost-universal step of questioning (examining for discovery) the opposing party can affect the calculation of delay. So if the defendant complains that by then some of the opposing witnesses could not be located, that complaint will not work (¶ 32). And if the plaintiff is neglecting to do what he or she should do, then after a certain length of time, the defendant should either apply to the court to compel the plaintiff's performance, or waive that step; the defendant should not do nothing about the plaintiff's neglect for a long time, and then complain about lacking that performance by the plaintiff for so long (see ¶ 35).
5. If the suit is not dismissed, the court should "routinely" make a procedural order to bar more delay, or to give other relief for the past delay (see ¶ 53).

The decision is Transamerica Life Can. v. Oakwood Assoc. Advisory Grp. 2019 ABCA 276, Calg 1903 0044 AC (Jul 10).

– 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.

He may be contacted through Juriliber at email: info@juriliber.com or phone 780-424-5345.