Go to Top

Monday Morning Case Bites for July 15, 2019

Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.

Edited by Amanda Kostek & Christie Dewar

Transamerica Life Canada v Oakwood Associates Advisory Group Ltd, 2019 ABCA 276 (CanLII)
Inordinate Delay | Defendant’s Obligations

This was an appeal of an unsuccessful application for dismissal for inordinate delay, which was also unsuccessful. The action related to an alleged commission miscalculation during the sales of insurance products. The action was commenced in 2007, and by the time the application was brought, the action was 10 years old and Questioning had not been completed.

The Court of Appeal found that the delay was inordinate, but that it was not inexcusable because the Defendants had contributed to the delay. As a result, prejudice was not presumed. The Plaintiff introduced expert evidence, which was found to be deserving no weight:

[22] In this case Transamerica introduced expert evidence directed at the first step in Humphreys v Trebilcock, namely, “the point on the litigation spectrum that a litigant acting reasonably would have attained within the time frame under review”. As the Master correctly concluded at paras. 19-23, this evidence was merely impressionistic and anecdotal, and was deserving of no weight. Expert evidence of this type is not to be expected, even in those cases that choose to follow the analytical framework in Humphreys v Trebilcock. As pointed out in Arbeau v Schulz at para. 36, whether there has been delay in any particular case is to be determined based on an examination of the record, the submissions of counsel, and the experience of the judiciary.

The Court of Appeal examined the Defendant’s conduct, which had contributed to delay. They had waited more than six years before initiating Questioning of the Plaintiff’s representatives. There was also delay of 40 months after the Statement of Claim was filed, before the Statement of Defence was filed. The Defendants pointed out to repeated requests for particulars, and an eventual successful application for same, to explain this delay. The Court of Appeal found that the Defendants had an obligation to either bring an application for particulars, or file a defence, in a timely way. The Defendants also did not answer Undertakings in a timely way:

[38] Mr. Goulet was questioned in July 2011, and he gave five undertakings. These undertakings were not answered until the continuation of the questioning in January, 2012, at which time he gave six more undertakings. The second set of undertakings were also not answered in a timely way.

[39] The appellants argue that the first set of undertakings were “provided promptly when requested and in advance of previously scheduled questioning”. That, however, is not the standard to be met. When undertakings are given, they should be answered without any further demand being made. When a continuation of questioning is scheduled, undertakings should generally be answered well in advance of that.

[40] A defendant might delay answering undertakings in the hope or expectation that the plaintiff will not press for answers. That sort of approach has its dangers, and if it is followed the court is entitled to consider the defendant’s conduct when measuring delay.

The Court of Appeal then considered whether there was significant prejudice, and noted that this case was largely documentation based. The findings of the Master and chambers judge that there was no substantial prejudice to the appellants was not unreasonable and ought not to be disturbed. The appeal was dismissed.