Last week’s Court Rulings from the Alberta Court of King’s Bench, Court of Appeal and SCC.
Edited by Amanda Kostek and Christie Dewar
Woodbridge Homes Inc v Randle, 2023 ABKB 731
Dismissal for Inordinate Delay | Flooding
The Plaintiff commenced an action in 2009 alleging that the defendants wrongfully diverted water onto their land from an adjacent property, causing flooding. At issue was the length of time it took to move the matter towards Trial. In 2002 an application for dismissal for delay was brought. By this point one party had not been examined on Undertakings, expert reports had not been obtained and exchanged, and the parties had not participated in mandatory alternative dispute resolution. As a result, the claim was dismissed for delay. In dismissing the claim, the Court issued the following cautionary warning:
[186] The right of access to the courts is not absolute in nature: Humphreys at para 100. Plaintiffs who fail to proceed with appropriate diligence and expedition do so at the risk of losing the right to prosecute their action. This is one such case.
[187] The pace at which Woodbridge has prosecuted this Action amounts to a delay. The delay is inordinate and inexcusable. Per r 4.31(2), the presumption of significant prejudice arises. Woodbridge has not rebutted the presumption, and there is no compelling reason for the Court to exercise its discretion not to dismiss the Action. Woodbridge’s Action against Mr. Randle, Wabamun, and Alberta is hereby dismissed.