By Ian Carruthers and Noel Harper
DISCLAIMER: This blog is intended to inform the reader about how the law was applied in a particular case. It should not be taken as advice regarding the outcome of any other case, even one that may have similar facts. The Court’s decision will depend on the facts of each case. Please call 1-844-210-9511 or visit carrutherslaw.ca if you would like to know more about your specific case.
Welcome back to the start of our series on Rule 4.31, the Prejudicial Delay rule, and how it might be applied to a given court case. Our first example detailed a dispute between a common law couple, leading to the defendant’s application to dismiss the action using the rule. If you haven’t caught up on the timeline of this case, you can do so here.
The court found no significant prejudice in the case of Arbeau v. Schulz, 2019 ABCA 204, and therefore no basis to dismiss the action for delay pursuant to Rule 4.31, meaning it could continue. The correct answer to this week’s question is b).
Here is Rule 4.31 to refresh your memory:
(1) If delay occurs in an action, on application the Court may
(a) dismiss all or any part of a claim if the Court determines that the delay has resulted in significant prejudice to a party …
(2) Where, in determining the application under this rule, the Court finds that the delay in an action is inordinate and inexcusable, that delay is presumed to have resulted in significant prejudice to the party that brought the application.
Let’s focus on the term ‘delay’ as it applies to this definition. It is up to the moving party, in this case the defendant, to prove that they have experienced “significant prejudice.” However, the rule does distinguish between this determination and a delay that is seen as “inordinate and inexcusable,” in which the presumption is that significant prejudice was suffered – unless the non-moving party, the plaintiff, can prove otherwise.
Before setting out to prove the allegations within the delay application, it must first be decided if there has been a delay in the litigation in the first place. Recall that the plaintiff’s initial action for unjust enrichment and spousal support was brought forth in October of 2011, and it wasn’t for another six years and nine months that the “relatively straightforward action” was ready to be set down for trial. Therefore, the defendant established delay, because the plaintiff “failed to advance her action to the point on the litigation spectrum that a litigant acting reasonably would have attained over this period of time.”
Having established this, the second factor is determining whether the delay is inordinate. When the application was heard, questioning of all parties had been completed and the plaintiff’s expert reports were served. This means the court was “not satisfied that the circumstances constitute inordinate delay as contemplated by Rule 4.31(2).”
Lastly, given that the delay cannot be defined as inordinate and inexcusable, the onus is on the defendant to demonstrate significant prejudice, and he ultimately failed to provide evidence to support his claims. Some of the other issues he raised were “problems that are commonly encountered in family litigation,” and could not be viewed as significant prejudice in the eyes of the court. As such, his appeal was dismissed and the action was not dismissed for delay.
PRACTICE TIP
It is essential in a 4.31 application that the applicant’s lawyer identify, obtain, and submit enough evidence to prove ‘significant prejudice.’ If there was not an inordinate delay, then the applicant has the burden to prove this, and even if there was an inordinate delay and the burden is switched to the respondent, the applicant must be prepared to overcome the respondent’s argument that there was no significant prejudice.
Your claim was struck for delay. Was it due to malpractice?
The circumstances leading to a 4.31 application can come without expectation, such as, for example, the passing of a key defence witness. The longer a claim takes to resolve, the greater the chance that such an event could happen. Failure to advance an action is often the result of the client’s conduct, but if an application arose because the lawyer left the file on the back burner for too long, they may be at fault.
Are you being retained in the middle of a court action that could be subject to a 4.31 application? Carruthers Law can help determine whether your client’s former lawyer was negligent. Contact us for a complimentary consultation to discuss your situation.