Casual Legal: Delay in litigation

By Jenna Chamberlain
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider

For parties commencing litigation, it is important to ensure your action advances at a reasonable pace.

Under the Alberta Rules of Court, there are two Rules which allow actions to be dismissed for delay:

• Rule 4.31 allows the Court to dismiss a claim if delay has resulted in significant prejudice to a party. Significant prejudice can be found if there is loss of evidence, death of a party or important witness, or if the litigation impacts the affairs of the parties (such as an inability to conduct business). There is a presumption of significant prejudice if the delay is found to be inordinate and inexcusable. 
• Rule 4.33 requires a Court to dismiss an action if  three (3) or more years have passed without a significant advance in an action. There is extensive case law on the issue of what is considered a “significant advance” and it is case dependent. For example, filing a pleading can be a significant advance in some instances, but may not be in others. In general, Courts determining whether a significant advance has occurred will review all the steps taken during the delay and determine whether progress has been made in the matter. 

In the recent case of Condominium Corporation 052 0580 v Carrington Homes Ltd., the Court of King’s Bench of Alberta considered an application to dismiss an action on the basis of delay.

The application was brought 11 years after the initial Statement of Claim was filed. In those 11 years, the litigation did not advance past the initial stages, with the pleadings still incomplete and no questioning scheduled.

In the analysis, the Court pointed to Rule 1.2, which states that the purpose of the Rules of Court is to “provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost-effective way.”

Considering this rule, the Court held “parties conducting litigation in Alberta courts must act in a timely, cost-effective way, determining the issues, finding the quickest means to resolve the claim and communicating with each other throughout.”

The Court considered all the steps taken in the action, starting from the filing of the Statement of Claim, and held that there was inordinate delay in the action. The entire action was dismissed and the plaintiff was ordered to pay costs of the action.

To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or send an casuallegal [at] abmunis.ca (email) to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or send an riskcontrol [at] abmunis.ca (email) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.