![](logo_patch.png) |
July 23 , 2024
Non-Prosecution Canards, Old and News |
July 10 , 2024
New Streamlined Trial Rules |
July 2 , 2024
The Three Legs of Decision |
May 16 , 2024
How to Meet Court Deadlines |
April 15, 2024
Recycling Old Evidence or Records |
April 10, 2024
Poor Record Disclosure Bites |
April 3, 2024
History of the Drop-Dead Rule |
March 26 , 2024
The Aims and Results of Costs |
March 18 , 2024
More Troubles Filing and Serving Court Documents |
March 14 , 2024
Precedents About Facts |
March 11 , 2024
Question of Law or Fact? |
February 29 , 2024
Disclosure in Chambers |
February 21 , 2024
Not Attending a Hearing |
January 31 , 2024
The Suggestions Box |
January 2 , 2024
Plain Language for Lawyers |
December 15 , 2023
Limitation Periods Have Shrunk |
November 30 , 2023
Advocacy's Key |
November 28 , 2023
Motions Fritter Away Time and Money |
November 27 , 2023
Will Foreclosure History Repeat Itself? |
November 21 , 2023
Rules of Court Bind Even the King's Bench |
November 2, 2023
Records and Affidavit of Records |
November 2 , 2023
Uncommon Law |
October 20 , 2023
Expanding Judicial Review Evidence |
June 22, 2023
Competition v. Benefits |
June 19, 2023
Clogged Courts |
June 12, 2023
Preparing Applications in Uncertain Conditions |
May 8, 2023
Competence is a Delicate Flower |
March 30 , 2023
Urgent! Very Hard to Meet a Limitation Period |
March 13 , 2023
Parties to Planning Appeals |
March 7 , 2023
Costs in Family Law Litigation |
January 30 , 2023
Dodging Settlement Privilege |
January 4 , 2023
Lurking Dangers and Errors |
January 3 , 2023
Your Real Goals |
December 5 , 2022
Contracts for Higher Costs |
November 24 , 2022
Scope of Offers to Settle |
October 13 , 2022
Checklist for Cross-Examination |
September 16 , 2022
Reviewing Latest Changes |
August 22 , 2022
First Steps in Problem Solving |
July 28 , 2022
Checklist of Powerful Procedural Principles |
March 22 , 2022
Repeating a Cross-Examination Question
|
January 25 , 2022
Enforcing Land Sales Becomes Easier |
January 5 , 2022
Proving a Settlement After a Mediation
|
November 16, 2021
Types of Injunctions
|
October 1, 2021
Orders After Litigation is Over
|
August 11, 2021
Discoverability for Limitation Periods
|
August 5 , 2021
Releases of Claims
|
June 7 , 2021
Language Used Still Matters
|
May 17 , 2021
Serving Uncooperative People
|
April 15 , 2021
Death and After-Life of Contingency Agreements
|
February 22 , 2021
Legal Analysis
|
February 2 , 2021
Costs Clarified at Last
|
January 4 , 2021
Urgent!
|
December 10, 2020
Traps and Confusion in Service Times
|
November 24, 2020
Don't Cut Corners
|
October 2 , 2020
Consent Orders
|
August 4 , 2020
Electronic Hearings
|
July 21, 2020
Ceasing to Act
|
June 29, 2020
Writing Skills
|
June 29, 2020
Keeping Up With the Law
|
June 22, 2020
Assets as a Test for Security for Costs
|
June 19, 2020
What is This Case About?
|
June 11, 2020
Cross-Examining Child Witnesses
|
May 20 , 2020
Formal Offers
|
May 13 , 2020
Vexatious or Self-Represented Litigants
|
January 7, 2020
G.S.T. and Costs
|
December 20 , 2019
Electronically Navigating the
Handbook
|
October 7 , 2019
Questioning is a Bad Word
|
July 29 , 2019
Dismissal for Delay
|
May 7 , 2019
Rule 4.31 Fallacies
|
March 18 , 2019
More Dangers in Oral Fee Agreements
|
February 11 , 2019
Weir-Jones Decisions
|
January 9 , 2019
Discouraging Settlements
|
November 30, 2018
European Court Helps You Twice?
|
November 23 , 2018
Courts Overruling Tribunals
|
November 16 , 2018
New Evidence on Appeal
|
October 30 , 2018
Schedule C's Role
|
July 17 , 2018
Loopholes in Enforcing Settlements
|
May 7 , 2018
Enforcement of Procedure Rules
April 16, 2018
Limping Lawsuits are Often Doomed
April 3 , 2018
Court of Appeal Tips for Summary Decisions
March 19, 2018
Serious Dangers in Chambers
Applications
February 13 , 2018
Court Backlog
December 18 , 2017
Lowering the Status of Courts
September 15 , 2017
Access to Court Decisions
July 4 , 2017
Strictissimi Juris
June 14 , 2017
Why Don't Your Clients Settle?
June 5 , 2017
Gap in Rules About Parties
June 5, 2017
Personal Costs Against
Solicitors
April 26, 2017
Clogged Courts
April 11, 2017
Dismissal for Want of Prosecution
January 6, 2017
Incomplete Disclosure
December 15, 2016
Mediation
November 23, 2016
Is Contract Interpretation Law? |
|
Welcome
![](legalviews%20practice%20files/headerline%20cherry%20red.jpg)
Côté’s Commentaries
© J.E. Côté 2016-2024
|
NON-PROSECUTION CANARDS,
OLD AND NEW |
At one time, Alberta courts rarely dismissed a suit for delay under what is now R. 4.31. When they gave reasons, some early decisions adopted illogical arguments, or legal arguments contrary to case law. Now, though Alberta courts enforce R. 4.31, some overridden mistaken views of the law resurface from time to time.
A very recent decision cites no case law or textbooks. In this case, over 13 years had elapsed after an automobile accident and 11 years since the suit commenced. The court denied an application to dismiss the suit under R. 4.31. The case had not been set down for trial, and it was doubtful that all discovery processes were complete. The reasons found inordinate delay, as was inevitable. The plaintiff had refused to attend “independent medical exams”, and refused to be examined for any long duration, and had delayed or frustrated the defendants' attempts to complete those examinations. There had been impediments to setting the matter down for trial. The plaintiff had been somewhat difficult and uncooperative in prosecuting her claim.
However, this decision let the lawsuit continue because the delay was “excusable.” The reasons found that the defendants had not caused any of the delay. How much delay was caused by the plaintiffs’ unreasonable delay and refusals is not stated. Yet the law requires that all the delay in the suit be considered as a whole: Arbeau v. Schulz 2019 ABCA 204 (¶’s 27-28); Cochrane v. Austech Hldg. 2022 ABCA 377 (¶’s 25 ff.); Wyant Est. v. St. Arnault (1985) 63 AR 91, affd (CA 1986) 70 AR 76. Here the defendants contended that the plaintiff’s responses to undertakings on discovery were not sufficient, but the reasons do not try to weigh that.
Excuses can become material where prejudice to the defendant is merely presumed because of the plaintiff’s bad delay. But excuses are not relevant if evidence actually shows some prejudice: Arbeau v. Schulz, supra (¶ 43).
And even if excuses for the delay could be relevant, they would have to be strong full excuses: Humphreys v. Trebilcock 2017 ABCA 116, [2017] 7 WWR 343, leave den (SCC 14 Dec. ’17) (¶’s 168 ff, 173-174, cf. ¶’s 159-161). Steps in a suit should be simultaneous, not sequential: dictum in Nelson v. Emsland 2008 ABCA 387, 440 AR 297, 300 (¶ 12)
What were the excuses? The reasons do not clearly say. But they do refer to four later automobile accidents involving this same plaintiff. Three of them have already been litigated to conclusion. Why finishing such other later litigation was ever necessary is not stated.
The first “excuse” the reasons mentioned is that the defendants had not seemed to mind the delays until the plaintiff acted unreasonably. But binding case law clearly holds that it is for the plaintiff to prosecute the suit, not the defendants. I am not aware of any authority holding that the defendant needs complaints to make delay inexcusable. To the contrary, failure to complain is neither acquiescence nor waiver: Royal Bank v. Levy 2020 ABCA 338 (¶’s 21-23); Cochrane v. Austech Hldg., supra (¶ 35). And even if there is waiver of past delay, that may well not waive later delay: Young v. Dei-Banning P.C. (CA 1996) 184 AR 209, 211 (¶ 10).
The reasons here brush aside loss of witness’ memory. They assume that having had some partial examinations for discovery or cross-examination on affidavits, will replace memory, and guess that the defendants had each given a sufficient written statement to their insurer. There is no finding of whether the transcripts were sufficient. Nor whether the imagined insurance statements had even been produced or looked at in this context. Nor whether those presumed statements to the insurer might be privileged. Let alone whether a transcript of questions asked by one counsel would be a sufficient summary of details of either side’s case. There is no suggestion that discovery was complete. Existence of some useful records is unlikely to cover all the things which lost witnesses or records would have covered: Humphreys v. Trebilcock, supra (¶’s 184-185).
Fading memories after some years are inevitable: Humphreys v. Trebilcock, supra (¶ 182); Cochrane v. Austech Hldg., supra.
In this recent case, all records of a number of undoubted attendances by the plaintiff on her various physicians, have disappeared. The reasons’ suggested excuse is that by the time that the defendants requested them, the records were gone. But keeping and disclosing records is always and at once the duty of the person in control of the records, not the opposing party. The reasons cite no authority for such an excuse. Nor do they cite any authority ignoring loss of evidence because it occurred before the defendants had started some process to ask for precisely that evidence. Former Rules once required a demand for discovery of records, but that was repealed years ago.
The reasons seem to imply that it is unclear why all those medical records would be relevant. With 5 automobile accidents all involving the same plaintiff, and difficulties in examining the plaintiff now, evidence about the plaintiff’s full medical history is obviously relevant. The reasons do not say what are the injuries or disabilities claimed here. Many of the facts in Leung v. Canada Safeway were similar to those here, and that suit was dismissed for non-prosecution: see Leung v. Canada Safeway (1993) 173 AR 390, 393 (¶ 12), affd (CA 1995) 174 AR 176.
To decide that loss of records cannot be prejudice to the defendants unless the defendants prove that the unobtainable contents were relevant, creates an impossible Catch-22 and is illogical. Worse, it is totally unjust, especially where they are the plaintiff’s records. Our courts so hold in Wyant v. St. Arnault, supra, at p. 96 (Queen’s Bench ¶ 11); Leung v. Can. Safeway, supra; Humphreys v. Trebilcock, supra (¶ 184).
Finally, the reasons in the recent decision somewhat contradict themselves. At first they say clearly that the delay was inordinate. Then they say that it was excusable. Then they go to prejudice from the delay, which by law is itself sufficient to dismiss the action. The reasons earlier hinted there was no prejudice, but they never actually find that. Instead, they find that the prejudice to the plaintiffs was not “significant enough” to justify dismissal. Though words like “significant” are used in this part of the law, they simply mean more than minor or trivial: Humphreys v. Trebilcock, supra (¶’s 125-28). The prejudice need not be fatal, nor need it produce certain loss by the defendant.
Therefore, it would be very unsafe to cite or rely upon this recent decision as a precedent. It is Segovia v. McCarrick 2024 ABKB 431, JCC 1301 03294 (Jul 16). .
– 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.
The Hon. Jean Côté retired from the Court of Appeal of Alberta and would be willing to act 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.
|
|