Legalviews Personal

An eight-and-a-half-year old lawsuit was not dismissed in King’s Bench for want of prosecution, under either the general Rule 4.31 or the “drop-dead” Rule 4.33. Whether the result was proper or not, some of the reasons given should not be relied on as correct case law.

In old suits, fading memories usually get considerable weight. A lot of binding case law says so. See Stevenson and Cote, Alberta Civil Procedure Handbook p. 4-89 (2025 ed.). Lay people see the point clearly. If ordinary people cannot recall what they had for supper last Tuesday, how can they have much reliable memory of the sort of details needed for a lawsuit about events 12 years ago? Worse, lawsuits rarely start a few days after the events in question. Often they commence almost two years later. And sometimes the events lasted some years: 3 1/2 years for some of them here. So some of the events here were 12 or more years old.

The judgment shuffles fading memories. It keeps identifying the prejudice as “fear” of fading memories. It says maybe they have not faded. After 12 years, that is very unlikely. Memories do fade over time, and the binding case law says so.

The judgment offers a thin and hackneyed response: there are writings in the lawsuit (records and transcripts of examinations for discovery). There is no finding that these records cover every issue, still less cover them enough. That they might prove the plaintiff’s claim is not enough; the defendant’s defences also need evidence. The fact there are a lot of records, and that the suit is complicated, is said to be enough. That is a non sequitur. And the complexity of the suit makes it worse than a non sequitur: it is backwards.

Relying on records’ existence to brush aside fading memories is illogical. Here is the fallacy. Before the delay, the defendant had two things: fairly recent memories, plus its own records and the right to see the plaintiff’s records, and hear his answers. Now after 12 years, the defendant has lost much of its memory, and has not gained anything extra. Any surviving records are things which the defendant had access to all along. How is lost memory not serious prejudice?

The issue is not learning things; it is being able to prove them at trial. Records very rarely make a memory come back. Normally they are just a possible alternative way to prove a fact.

Very often records are not admissible evidence of the truth of their contents. Plaintiffs countering R. 4.31 with records never seem to mention that. And usually the evidence conflicts on key points; that is why the plaintiff wants a trial. If the evidence conflicts, it is a big advantage that the defendant has two ways to prove a disputed fact; that is often enough to surmount the plaintiff’s conflicting evidence. If one way is lost through delay, later having only one of the two ways left, is prejudice.

The decision says that two of the witnesses were questioned extensively, presumably during examinations for discovery. It does not say that all of them were. Mere witnesses cannot be examined for discovery. And a party cannot put into evidence its own (or its witness’ own) answers to examination for discovery. And questions to the opponent (the plaintiff) rarely yield answers to all the facts in issue. Very often on some issue, the evidence must almost all come from one side, not the other. This “records” excuse does not mention any of that.

Here the plaintiff sued a number of defendants, and there are a number of issues. Two of the plaintiff’s causes of action are separate. The decision seems to find that there are many records. That suggests many facts in issue. Then when the suit began, the defendants and their witnesses must have had a lot of memory of details. Some of that must have faded after 12 years. In a simple lawsuit, maybe one could prove that there are some records completely replacing any lost memory. But not in a complex suit? Especially to prove all the defendant’s assertions.

Still less can one assume that. He who asserts a fact must prove it fully. The plaintiff apparently asserts that records sufficed to prove everything. Any assertion that they do less would be irrelevant.

It is trite law that the death or disappearance of one material witness is usually fatal prejudice. So why is one material witness’ loss of memory (after 12 or so years) not the same?

There is a very different flaw in the reasons given here under R. 4.33 (the “drop dead” Rule). Twice the type of activity relied on as filling the forbidden gap, is dealt with by its category. “Doing x usually materially advances the action” or “doing y usually does not materially advance the action”, is the reasoning. But case law is precedent for law, not facts. And the Court of Appeal has clearly held that for R. 4.33, one needs to look at the actual activities in the case and their actual results. No longer can judges rely on categories such as an interlocutory motion to compel production of a certain type of document, or service of a notice to admit. See Stevenson & Cote, Alberta Civil Procedure Handbook pp. 4-103 to 4-104 (2025 ed.).

The decision in question is Oleksyn v. Hi Line Farm Equip. 2024 ABKB 584 (Oct. 2). .

– Hon. J.E. Côté

IRREPARABLE FADED MEMORIES