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A recent King's Bench decision overturns an application judge's dismissal of a suit under R. 4.31 for non-prosecution. This recent decision emphasizes that the lawsuit was not just about wrongful dismissal, and was fairly complex.

The decision conflates contributing to a delay (and not counting time lost by the defendant), with acquiescing in the delay.

This recent decision proposes five novel legal propositions, but cites little authority for any of them. They are labelled A. to E. below.

A. The decision admits that lack of funds alone is not a proper excuse under R. 4.31 (as say a host of cases in various contexts). But then the decision dilutes that, and suggests that if there are any other novel excuses, then prioritizing other aims or tasks over running this lawsuit is a proper decision, so therefore lack of funds bars dismissal under R. 4.31. In fact, though, such competing priorities are irrelevant to costs: see the authorities cited in Stevenson and Côté , Civil Procedure Handbook pp. 12-36 to 12-37. Why that is so is explained in McCargar v. Metis Settlements General Council 2025 ABCA 33, Edm 2403 0060 AC (one JA Feb 4) (¶ʼs 47-49).

And all over the law of civil procedure are judgments saying that having other more important things to do is no excuse for delay in litigation. The delay is by the plaintiff who started the lawsuit and could end it at any time, but instead insists on locking the defendant into this lawsuit which the plaintiff is too busy to attend to. For example, see Botar v. Mainstream Eq. Corp. 2013 ABCA 270 (one JA Jul 17).

B. This recent decision admits that the defendant need not take steps to advance the lawsuit, but then it takes that back. It suggests that if the defendant does nothing, then that means there is "joint delay" which bars dismissal under R 4.31.

But subrule (3) just says to consider joint delay, not that it bars a dismissal motion. Obviously, this factor must be measured and weighed. This decision only finds that 4 years was "joint". It does not find that the "joint delay" slowed the plaintiff down. Nor does it explain or detail its calculation of 4 joint years.

C. Even almost 13 years after the events in question, the decision refuses to rely on fading memories as prejudice. A defendant would have to provide sufficient particulars and evidence to demonstrate the prejudice. A bare assertion of presumed prejudice from a significant passage of time is not evidence, it says. (It relies on existing records for one interpretation issue, in one sentence.) This decision also relies on examinations for discovery (questioning) having occurred, but does not explain how that could be a substitute for one's own memory.

But see my December 2, 2024 blog on the Juriliber website. It cites numerous contrary decisions, some binding, about fading memories. Oddly, the decision here cites some of them for other propositions, but never on this topic.

Prejudice from lost memory or evidence does not stop because the parties agreed to let the suit sit idle: 422252 Alta. v. Messenger 2015 ABCA 47 (one JA Feb 2) (¶ 6) (appeal fell off list).

This old canard about having to prove lost memory is illogical. It is even more illogical than commanding “show me everything that you no longer possess”. How can an honest affiant ever swear to any more detail than “I believe that I formerly recalled a lot of details, but I can no longer remember much now”?

D. A defendant doing nothing is “participation” in the plaintiff's lawsuit, under R. 4.31(3), suggests this decision. That would create a Catch 22: everything would be acquiescence: either to take part or not to take part. And R. 4.31(3) does not make participation in the suit a bar to moving to dismiss. It only says to weigh that happening.

And the subrule says “participated in the delay”. The definition of “participate” is to take part or share in, an action or condition: Shorter Oxford English Dictionary II.4. Nothing in here suggests that doing nothing is “participation”. This argument is also backwards.

E. If a case is “borderline” (which is not defined), the action cannot be dismissed under R. 4.31 unless the case is extraordinary, says the decision.

This decision merely cites the Master, who said here borderline, “weighing all the other factors”. But “borderline” is not a legal category with criteria or rules defining it. Still less is it a separate test. It is just a conclusion (and that is the way the Court of Appeal used it in the Song case). And this decision says “most extraordinary” but the Song decision does not say “most”.

. . .

This recent decision should not be used as a precedent or a summary of the case law. It is Ranger v. Precision Geomatics 2025 ABKB 45 (Jan 14).

– Hon. J.E. Côté

CANARDS MULTIPLYING?