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Monday Morning Case Bites for March 2, 2020

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

Edited by Amanda Kostek & Steven Graham

Atwal v Gill, 2020 ABQB 146
Long Delay | Significant Advance | Form 37

This was an Application that was unsuccessful under the long delay rule, but successful under the inordinate delay rule. The Court found that the circulation of a Form 37 to set the matter for Trial was not a significant advance in the action as it was not endorsed by all parties, and the Plaintiff failed to follow up by bringing an application to set the matter for Trial. In addition, the Court concluded that the circulation of an expert report, which was only shared with the Plaintiff, and no other parties, did not advance the action:

[10]           On August 13, 2018, counsel for another defendant, Taranjit Aujla, provided counsel for the plaintiff with an appraisal report. The report asserted that the land was now worth $4.8 million, and counsel for Aujla told counsel for the plaintiffs that this showed that the plaintiffs had not suffered any damages, in that the original purchase price of the land was $4.7 million.

[11]           There is no indication that this appraisal report was provided to any of the other defendants. It was apparently used by Aujla’s counsel as part of settlement negotiations with the plaintiffs. In fact a settlement between the plaintiffs and Aujla was finalized in January of 2020.

[12]           I do not accept that Aujla’s provision of an appraisal report to the plaintiffs, not filed in Court or shared with the other parties to the litigation, constituted a significant advance in the action between August 23, 2016 and August 23, 2019. If it had resulted in a settlement with Aujla within that 3 year window then it would have constituted a significant advance, but it did not.

The Court concluded that a decision in a collateral action, which disposed of one of the issues in this litigation was a significant advance.  As such, the Court did not dismiss the claim for long delay.

The Court then considered whether to dismiss the claim for inordinate delay. The Court concluded that the claim took too long on the following basis:

[22]           In my view, the delay is inexcusable. There are two periods of unexplained delay in this litigation: one is 3 years of delay between August 23, 2011 and September 6, 2014, and the other is a delay of 3 years and 3 months, between November 4, 2015 and August 23, 2019.

[23]           Were it not for the cumulative 6 years and 3 months of delay, this action would have been extant for approximately 5 years, instead of approximately 11 years.

[24]           Certainly the defendants were engaged in some foot dragging (I will assume not deliberately) during the 5 years of activity on the file, but this is no excuse for the 6 years and 3 months of delay outlined above.

[25]           I conclude that the delay is inexcusable.

The Court concluded that the availability of transcripts did not overcome prejudice caused by the delay:

[29]           The fact that the parties have been examined under oath under Part 5 of the Rules, and a transcript of that examination is available, does not in my mind overcome the prejudice from witnesses having to recall the words used during conversations which took place over 12 ½ years ago.

On that basis, the claim was dismissed: