Alberta courts are now much more willing to enforce Rule 4.31 about lawsuits which are being prosecuted very slowly. But an occasional decision still reveals distrust of the Rule, and a feeling that almost no case is quite slow enough to enforce the Rule. Sometimes these decisions invent new obstacles or excuses not found in the Rule, and sometimes they interpret the Rule with great technicality. They often ignore clear binding authority. Such decisions often offer policy or fairness suggestions. On reflection, some of those suggestions do not make much sense.
Sometimes those decisions offer a sort of popularity contest. First is this version. “Maybe the plaintiff was moving slowly, but the defendant was not moving quickly either.” However, the case law (and the Rule) make it clear that it is the plaintiff who has the duty to prosecute the suit, not the defendant, and that if the defendant is not causing the plaintiff’s delay or barring the plaintiff’s desired steps, the defendant’s slowness is irrelevant. (See also my July 29 2019 blog, para.¶ 4.)
Other decisions suggest this variant: “Maybe there is prejudice to the defendant, but the delay gives the plaintiff some prejudice too.” Again, that is irrelevant. And it is unfair, because it is the plaintiff’s delay and the prejudice to the defendant caused by the plaintiff’s delay, that we are talking about. That the plaintiff’s delay left some of his own food to rot, is not the question. The question is prejudice to the defendant. The plaintiff decided whether to endanger his own food. The defendant has lost some food, and the rest has lost much of its effect, through no fault of his own. (See also my May 7, 2019 blog, fallacy 5).
Besides, civil litigation is not a sporting event or a gamble, needing only fairly shuffled and dealt cards. A lawsuit is a search for the truth. Truth needs evidence.
This point overlaps with another fallacy. “The defendant still has other evidence, so she is not prejudiced”. That is a non sequitur. If she takes two coats to the dry-cleaners, who negligently loses them, is she prejudiced? Yes. If she still has at home two other coats, does that remove her prejudice? No. She has just gone from four coats to two. That is serious prejudice. Are plaintiffs never prejudiced unless they have no money at all? Or no evidence at all?
What if the plaintiff started out with an airtight case, with lots of evidence, but the defendant stalled off trial until all of the plaintiff’s key live eyewitnesses were dead or senile? Do some remaining business records and a fuzzy surveillance tape mean there is no prejudice? No. The plaintiff has gone from an airtight case to a doubtful one. And the issue is not who will win the trial. It is whether the plaintiff is significantly worse off. Does the plaintiff rebut prejudice by giving evidence that the defendant is still sure to win, or sure to win an important issue? Never.
Besides, no one ever talks about whether the plaintiff’s remaining records are admissible evidence of the truth of their contents. (In Alberta, often they are not.) Nor about whether those records are admissible in evidence without a witness to identify them or confirm their accuracy or mode of preparation. No one ever suggests that the plaintiff admitted their truth, accuracy, or reliability.
The Court of Appeal has made prejudice to the defendant the most important factor, more important than reasons for the delay.
Rule 4.31(1) proves some of the conclusions above. The sub-Rule and Court of Appeal decisions forbid judges to leave standing a suit which was too slowly prosecuted. They require that the court impose terms and conditions on the parties (especially the plaintiff) to remove all prejudice from the delay. Though the Court of Appeal and the Rule mandate that, in practice that is rarely done. The sluggardly defendant gets out of jail free. A judge or master trying to craft terms to remove all the prejudice would fail. Or a term would be needed which dismissed part or all of the lawsuit, or required the defendant to admit some of the key issues or disputed facts. If prejudice is not total and irrebuttable, then the plaintiff asks the court to ignore it. Rugs are knee-high with the dust and cobwebs swept under them. (See also my May 7, 2019 blog, fallacy 2, and my July 29, 2019 blog, ¶ 5.)
After even a few years, fading memories become serious. The plaintiff has the onus of proof in every trial, and the plaintiff needs to be able to cross-examine the defendant’s witnesses. Therefore, vague glib reassuring sentiments do not go nearly far enough to negative prejudice from delay. Some of the cases involve over a decade already lost, during the dozing and sleepwalking lawsuit, since the events sued over. Let alone several years more before any trial could be held. (See also my May 7, 2019 blog, fallacy 4.)
Rule 4.31(2) is clear and simple. If inordinate inexcusable delay is shown, the court must presume significant prejudice to the defendant moving. So the action must be dismissed, unless the plaintiff gives strong enough evidence to rebut that prejudice. Without rebuttal, the presumption is mandatory, says the Court of Appeal. Suggesting that the presumption should rarely be relied on, comes very close to simply ignoring that sub-Rule.
– Hon. J.E. Côté
The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.
Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.