NON-PROSECUTION EXCUSES

Alberta courts are now much more willing to enforce Rule 4.31 about lawsuits being prosecuted very slowly. But an occasional decision still reveals distrust of the Rule, and a vague feeling that almost no case is quite slow enough to enforce the Rule. Sometimes these decisions invent new obstacles or excuses not found in the Rule, and sometimes they interpret the Rule with great technicality. They often ignore clear binding authority. Such decisions often offer policy or fairness suggestions. On reflection, some of those suggestions do not make much sense.

1. Sometimes those decisions offer a sort of popularity contest. First is this version: “Maybe the plaintiff was moving slowly, but the defendant was not moving quickly either.” However, the case law (and the Rule) make it clear that it is the plaintiff who has the duty to prosecute the suit, not the defendant, and that if the defendant is not causing the plaintiff’s delay or barring the plaintiff’s desired steps, the defendant’s slowness is irrelevant. (See also my July 29 2019 blog, ¶ 4.)

2. Other decisions suggest this variant: “Maybe there is prejudice to the defendant, but the delay gives the plaintiff some prejudice too.” Again, that is irrelevant. And it is unfair, because it is the plaintiff’s delay and the prejudice to the defendant caused by the plaintiff’s delay, that we are talking about. That the plaintiff’s delay left some of his own food to rot, is not the question. The question is prejudice to the defendant. The plaintiff decided whether to endanger his own food. The defendant has lost some food, and the rest has lost much of its effect, through no fault of his own. (See also my May 7, 2019 blog, fallacy 5).

Besides, civil litigation is not a sporting event or a gamble, needing only fairly shuffled and dealt cards. A lawsuit is a search for the truth. Truth needs evidence.

3. This point overlaps with another fallacy. “The defendant still has other evidence, so she is not prejudiced”. That is a non sequitur.

What if a woman stores her 5 winter coats in the basement, and a leaking drain pipe ruins 3 of them? Is she prejudiced significantly? Of course she is. Does the prejudice disappear because she still has 2 other winter coats? No. Furthermore, the 3 ruined coats may have been the better, more attractive and useful coats. And they may have been suitable for more important occasions than the 2 remaining coats.

So after litigation delay, the remaining evidence may be weaker than the evidence clearly lost: Van Fossen v. Edmonton (City) (M) 2017 ABQB 503 (¶ 11); 4075447 Can. v. Pacrim Dev. 2018 ABQB 358 (¶’s 75-78); XpressLube &c. v. Gill 2019 ABQB 898 (¶’s 78-82).

What if the defendant started out with an airtight defence, with lots of evidence, but the plaintiff stalled off trial until all of the defendant’s key live eyewitnesses were dead or senile? Do some remaining business records and a fuzzy surveillance tape mean there is no prejudice? No. The defendant has gone from an airtight defence to a doubtful one. And the issue is not who will win the trial. It is whether the defendant is significantly worse off. Does any plaintiff ever rebut prejudice by giving evidence that the defendant is still sure to win, or sure to win an important issue? Never.

Besides, no one talks about whether the defendant’s remaining records are admissible evidence of the truth of their contents. (In Alberta, often they are not.) Nor about whether those records are admissible in evidence without a witness to identify them or confirm their accuracy or mode of preparation. No one ever suggests that the plaintiff admitted their truth, accuracy, or reliability.

If the plaintiff accuses the defendant of serious misconduct, delaying the suit prejudices the defendant sooner: Xpress Lube &c. v. Gill 2019 ABQB 898 (¶’s 46, 53); Arbeau v. Schulz 2019 ABCA 204 (¶ 38). Or if the defendant’s state of mind is in issue: Stabilized Water Co. v. Better Bus. Bureau 2019 ABCA 146 (¶ 6).

The Court of Appeal has made prejudice to the defendant the most important factor, more important than reasons for the delay. Any type of prejudice to the defendant is relevant under R. 4.31: Humphreys v. Trebilcock 2017 ABCA 116, [2017] 7 WWR 343 (¶ 138), leave den (SCC 14 Dec ’17). That can include loss of peace of mind or loss of closure, after a certain time: Morrison v. Galvanic A.S. 2019 ABCA 207 (¶’s 9, 30-33); 866546 Alta. v. Skene (M) 2018 ABQB 825 (¶ 25); Xpress Lube v. Gill, supra.

4. Rule 4.31(1) proves some of the conclusions above. The subRule and Court of Appeal decisions forbid judges to leave standing a suit which was too slowly prosecuted. They require that the court impose terms and conditions on the parties (especially the plaintiff) to remove all prejudice from the delay. Though the Court of Appeal and the Rule mandate that, in practice that is rarely done. The sluggardly defendant gets out of jail free. A judge or master trying to craft terms to remove all the prejudice would fail. Or a term would be needed which dismissed part or all of the lawsuit, or required the defendant to admit some of the key issues or disputed facts. If prejudice is not total and irrebuttable, then the defendant asks the court to ignore it. Rugs are knee-high with the dust and cobwebs swept under them. (See also my May 7, 2019 blog, fallacy 2, and my July 29, 2019 blog, ¶ 5.)

5. After even a few years, fading memories become serious. The defendant needs to be able to cross-examine the plaintiff’s witnesses. Therefore, vague glib reassuring sentiments do not go nearly far enough to negative prejudice from delay. Some of the cases involve over a decade already lost, during the dozing and sleepwalking lawsuit, since the events sued over. Let alone several years more before any trial could be held. (See also my May 7, 2019 blog, fallacy 4.)

6. Rule 4.31(2) is clear and simple. If inordinate inexcusable delay is shown, the court must presume significant prejudice to the defendant moving. So the action must be dismissed, unless the plaintiff gives strong enough evidence to rebut that prejudice. Without rebuttal, the presumption is mandatory, says the Court of Appeal. Suggesting that the presumption should rarely be relied on, comes very close to simply ignoring that sub-Rule.

7. Note that new subRule 4.31(3) on the defendant’s role. But it is narrow: only actual participation in, or contribution to, the delay, is relevant. And it is only relevant, not fatal.

– Hon. J.E. Côté