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.
Our second example of a Rule 4.31 application involved a case between two hockey players, in which the plaintiff sued the defendant for causing injury, alleging that the defendant struck the plaintiff with his stick and fractured the plaintiff’s finger. Knowing the chronology of this case is key to understanding what led up to the defendant’s application to dismiss the action, so if you haven’t seen Monday’s post introducing it, you can read it here.
Fraser v. Jeffries, 2019 ABCA 368 had been moving through the courts for six years leading up to this point, and the timeline included some significant gaps without any noteworthy events taking place. Ultimately, however, the Chambers Judge overturned the Master’s decision to dismiss the action for delay, allowing it to continue, thus the answer to our question this week is b).
Rule 4.31 provides:
(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.
Both the plaintiff and defendant are obligated to keep the litigation moving forward quickly, not solely the plaintiff. Here, the delay by the defence was a deciding factor in determining if the setback is considered “inordinate or inexcusable” and “may be considered when the court is exercising its ultimate discretion to dismiss the action,” according to the decision.
The most crucial factor to consider in said decision is prejudice. The Chambers Judge found that there was an inordinate delay in the action but recognized that the plaintiff provided a reason for this delay – the illness of his first counsel, which the court of appeal agreed with. They also noted that the defendant did not press the pace of the litigation, reinforcing their decision.
Both parties agreed that the matter was ready to be set down for trial by December 2015, when the plaintiff’s initial counsel wrote to the defendant requesting information to complete a Form 37, which would allow a trial to be scheduled, and serve a notice to admit. The defendant’s counsel replied to the notice to admit but did not provide any information for the Form 37. Recall that Rule 4.2(b) of the Alberta Rules of Court places responsibility on both parties to respond “in a substantive way and within a reasonable time to any proposal for the conduct of an action.”
As with last week’s example, the defendant failed to establish significant prejudice under Rule 4.31. They attempted to claim such given the death of a key witness to the event, but this occurred in 2014, which was not during any period of inordinate delay. The defendant also cited the logistics and potential costs of arranging for some of the witnesses to return to Fort McMurray for the trial after having moved out of Canada. The court saw this as an issue of litigation expense rather than prejudice. Lastly, the defendant stated that the memory of the event would have faded in the minds of the witnesses, but the court was “satisfied the memory of their core observation would not be unduly impacted.” Therefore, the appeal was dismissed, and the action could continue.
PRACTICE TIP
The defendant’s counsel needs to be aware of the defendant’s responsibilities regarding the progress of the action. On the one hand, a plaintiff has the primary obligation to move the litigation forward, however a defendant also has obligations with respect to the pace of litigation. The Alberta Rules of Court impose obligations on all parties to advance the action. This includes “to communicate honestly, openly and in a timely way” (Rule 1.2(2)(d)) and an obligation on the parties to “jointly and individually during an action facilitate the quickest means of resolving the claim at the least expense” (Rule 1.2(3)(a)).
In this case, the Court weighed defence counsel’s non-responsiveness against granting a dismissal order. While the Rules and the Court do not seem to impose a direct responsibility on defendants to be the motor that moves the Zamboni along, they can be held accountable if their lawyers fail to respond to plaintiff’s counsel or meet their pre-trial deadlines in a timely manner.
Your claim was struck for delay. Is it malpractice?
The circumstances leading to a 4.31 application can come without expectation. 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.