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Monday Morning Case Bites for November 19, 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

CWC Well Services Corp v Option Industries Inc, 2018 ABQB 908 (CanLII)
Dismissal for Delay l Participation by Defendants l Prejudice

This was an unsuccessful application for dismissal for long delay under Rule 4.33 and inordinate delay under Rule 4.31. The Court noted that an Application under the long delay rule may not be successful if the defendants participates in the action:

[1] Under Rule 4.33(2)(b), where a finding is made that three or more years have passed without a significant advance in an action, the Court may decline to dismiss that action for delay if:

an application has been filed or proceedings have been taken since the delay and the applicant has participated in them for a purpose and to the extent that, in the opinion of the Court, warrants the action continuing.

A three year delay occurred, but after this the defendants consented to a litigation plan. Questioning was scheduled twice but did not ever take place because the defendants cancelled them. The Court found that since the delay, the defendants participated in the proceedings. The Court rejected the argument that the scheduled Questioning should not be counted because it did not actually take place:

[8] As stated by the Alberta Court of Appeal in Turek v Oliver, 2014 ABCA 327 (CanLII), 2014 CarswellAlta 1761 at para 5:

The appellants argue that obtaining an agreement from opposing counsel that something will be done by a particular deadline does not significantly advance the action, unless that agreement is performed. This seems to imply that it is unreasonable, foolish or naïve for one barrister to rely on the undertaking of another.

Further, it was not necessary for the Plaintiff to show that the litigation agreement was a significant advance, only that the litigation agreement was participation.

In the application under Rule 4.31, the Court found that as Questioning had not taken place in the first 7 years of the litigation, the Plaintiff had an onus to demonstrate that the delay had not resulted in significant prejudice. The Court found that the Plaintiff met this onus:

[12] The claim is based on the collapse of a drilling rig, which was refurbished under a design of the defendant Gusek. The refurbished rig was put on site and collapsed under a wind load.

[13] The plaintiff says Gusek’s design was at fault. Gusek says the rig was not installed correctly on the drilling site.

[14] Gusek had earlier provided a third party report which opines that Gusek’s load factor design was correctly done.

[15] This is not a case in which the testimony of live witnesses to collapse, are critical. What is critical is the design of the refurbishment, and that design is preserved in documents and drawings which are still in existence.