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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

NON-PROSECUTION CANARDS,

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