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Monday Morning Case Bites for December 16, 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

Mid-West Design & Construction Ltd v Jayco Builders Inc, 2019 ABQB 945
Inordinate Delay l JDR Proposal

This was an unsuccessful application for dismissal for inordinate delay. The Court noted a delay of 19 months, and concluded that delay applications under Rule 4.31 should look at the action as a whole rather than periods of litigation:

[21]           I do find that there was unnecessary delay between May 2016 and March 2018. Delay cannot be looked at in terms of parts or periods of litigation. Rather, delay must be done in the context of the entire action, not segments. In the context of the total period under review from July 2012 to March 2018, some 68 months, the Action had not progressed to the point that could have been reasonably expected. As stated by Master Farrington in the original hearing, this is not a particularly complex matter, and should have been further along.

The Court noted that the period of inactivity was due to the Defendant’s failure to respond to a proposal to attend a JDR.  The Court commented as follows:

[26]           In this case, three months after the corporate witnesses were examined on their responses to undertakings, the Respondent wrote to the Appellant to see if the Appellant was interested in scheduling a Judicial Dispute Resolution. The Appellant never responded to this correspondence. In argument, counsel for the Appellant was very frank about this failure to respond, and could not offer an explanation, other than to attribute it to an oversight or an office error rather than intentionally ignoring the letter. I fully accept counsel’s representations in that regard.

[27]           The Respondent was certainly entitled to expect a reply to this proposal. What is less certain is exactly how long the Respondent should have waited before sending another enquiry or taking a further step. There is therefore no way to accurately determine or even estimate what portion of the delay between the Judicial Dispute Resolution correspondence of August 31 and the presentation of the draft Form 37 in March of 2018 is attributable, or at least partly attributable, to the Appellant’s failure to respond to the Respondent.

The Court concluded that while there was some delay, it was not inordinate:

[28]           Given the above, while I do find that there has been delay, in the context of the entire length of the Action and, to a lesser extent, the issue of non-response to the Respondent, I am not satisfied on a balance of probabilities that the delay has been inordinate.