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.
This week, we introduced you to a conflict between a contracting firm and the building owners who hired them to fix issues with the foundation. These issues were not resolved and the action that followed between both parties carried on for more than a decade, resulting in an application to dismiss it for delay under Rule 4.31. For a full breakdown of the facts of this case, please visit Monday’s post here if you haven’t yet.
The defendant company ultimately got its way after demonstrating that the delay was the responsibility of the plaintiff, the board of a building called Tudor Manor. In the case of Condominium Plan No. 7920829 v. Academy Contractors Inc. (Abalon Construction), 2023 ABKB 244, the defendant’s application was granted and the action was struck, meaning the answer to Monday’s question is a).
Let us review Rule 4.31:
(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, or
(b) make a procedural order or any other order provided for by these rules.
(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.
(3) In determining whether to dismiss all or any part of a claim under this rule, or whether the delay is inordinate or inexcusable, the Court must consider whether the party that brought the application participated in or contributed to the delay.
The decision states that the plaintiff failed to advance the action to a reasonable degree at the point in the action when the defendant’s application was filed, given that it had been ten years since the statement of claim. The Applications Judge described the action as “not that complicated” given that there were just three parties – the condominium board, Abalon Construction, and the engineering firm they hired who was named as a third-party defendant. As such, the delay was seen as inordinate because “this action should have been completed years ago.”
Recall that the plaintiff went through successive counsel as it provided various affidavits of records throughout the litigation. At the time of the dismissal application, they were on their third lawyer, who argued that the delay was neither intentional nor willful. “That may be so,” wrote the Applications Judge, “but it is of little significance in the Court’s analysis as to whether there is an adequate excuse for inordinate delay.”
The plaintiff’s counsel submitted a letter during the hearing, dated August 26, 2019, in which they proposed a litigation plan. The defendant responded with a letter sent to the plaintiff on May 10, 2019, in which they advised the plaintiff of their intention to file a dismissal for delay application. Counsel argued that the plaintiff’s litigation plan was only sent in response to the defendant’s pending application to strike the action for inordinate delay.
The Judge found that the plaintiff could not come up with an adequate excuse for this delay, naming it as the party responsible for the prolonged litigation. Additionally, given that the witnesses called forth by the plaintiff had memory issues due to the long passage of time, the Judge saw this as another concern for the future of the action, and another reason it was dismissed.
PRACTICE TIP
In this case, the court recognized that the fading memories of the plaintiff’s witnesses caused significant prejudice to the defendants. The defendants were able to present evidence of this prejudice by pointing the court to where memory issues were apparent within the examination transcripts. This may not always be a possibility. Recall that in one of our previous blog posts about a case involving the Prejudicial Delay rule, specifically Fraser v. Jeffries, 2019 ABCA 368, the court found that the passage of time had not interfered with the witnesses’ memories of their core observations, and it is best to present evidence of significant prejudice rather than relying on assertions, even reasonable ones.
Just as a building will settle over time without a significant foundation, a plaintiff’s case can disintegrate with the fading of witness memories over time. Had this claim proceeded to trial, the witnesses may not have been able to recall the evidence necessary to prove the plaintiff’s case, and the plaintiff would have been the author of its own prejudice.
This presents a practical reason for a plaintiff to advance a claim in a timely manner, beyond simply the minimum requirement of avoiding a delay application. It allows a trial or summary judgment application to proceed while the memories of witnesses are still reliable. It can also help mitigate the potential issues caused by the unexpected passing of a key witness, one type of significant prejudice that can lead to a 4.31 dismissal. A plaintiff can argue against such prejudice if said witness’s evidence has been captured by a transcript while being questioned or examined under oath.
YOUR CLAIM WAS STRUCK FOR DELAY. IS IT MALPRACTICE?
The longer a claim takes to resolve, the greater the chance it will fall to a 4.31 application, especially if the delay is found to be inordinate. A failure to advance an action is often the result of the client’s conduct, but if an application arose because counsel left the file on the back burner for too long, the lawyer 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.