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Monday Morning Case Bites for July 16, 2018

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

Edited by Amanda Kostek & Christie Dewar

Kniss v Trolley, 2018 ABQB 499 (CanLII)
Inordinate Delay l Prejudice l Explanation for Delay

Judgment Highlights

This was an unsuccessful application to dismiss a claim for inordinate delay under Rule 4.31. The court considered the six questions set out in Humphreys v Trebilcock, 2017 ABCA 116 (CanLII):

[38] In order to apply r. 4.31 an adjudicator must answer six distinct questions.

[151] First, has the nonmoving party failed to advance the action to the point on the litigation spectrum that a litigant acting reasonably would have attained within the time frame under review?

[152] Second, is the shortfall or differential of such a magnitude to qualify as inordinate?

[153] Third, if the delay is inordinate has the nonmoving party provided an explanation for the delay? If so, does it justify inordinate delay?

[154] Fourth, if the delay is inordinate and inexcusable, has this delay impaired a sufficiently important interest of the moving party so as to justify overriding the nonmoving party’s interest in having its action adjudged by the court? Has the moving party demonstrated significant prejudice?

[155] Fifth, if the moving party relies on the presumption of significant prejudice created by r. 4.31(2), has the nonmoving party rebutted the presumption of significant prejudice?

[156] Sixth, if the moving party has met the criteria for granting relief under r. 4.31(1), is there a compelling reason not to dismiss the nonmoving party’s action? This question must be posed because of the verb “may” in r. 4.31(1).

The court found that the initial 5 year delay was not “inordinate or inexcusable” because applications during this time struck the claim out against some defendants, and as a result, narrowed the issues. If this delay had qualified as inordinate, the court would have found there was an explanation for the delay, in that the plaintiff was pursuing grievance processes outside the court, which ultimately affected the quantum of damages in the litigation. The later 15 month delay also did not qualify as “inordinate or inexcusable.” Much of the delay was attributed to the defendants. Finally, the court found that prejudice did not result from the inadvertent destruction of records because this pre-dated the litigation, and the deceased witness had been examined under oath in much the same way as she would have at Questioning and a transcript of her evidence was created.

[57] To return to the list of questions set out in Humphreys, I conclude that (a) Mr. Kniss may be said to have failed to advance the action to the point on the litigation spectrum that a litigant acting reasonably would have attained within the time frame under review (although I make no ruling on this), however; (b) the shortfall or differential is not of such a magnitude to qualify as inordinate. The next three questions no longer apply because the presumption does not apply, although if I had concluded that the delay were inordinate I would have concluded that Mr. Kniss has provided an explanation for the delay: he has been reducing the issues to be addressed in the action, explaining the earlier periods of delay, and some of the recent delay lands at the feet of these defendants.

[58] In light of the “prejudice” being the unavailability of Ms. Wiggins as a witness, in light of the possibility that the transcript might be received by the trial judge, I cannot conclude that there has been prejudice. The absence of her files preceded the lawsuit and is not the result of delay.