Legalviews Personal

Two recent Alberta decisions about this topic must be read with care.

The Court of Appeal’s brief decision held that a certain factual decision by a chambers justice could not be upset on appeal because of the wide scope for chambers justices given by the standard of review on appeal. And it is important to recall that court decisions about facts are not precedents, especially under Rules 4.31 and 4.33. (Such case law is cited in my Oct. 15 ʼ24 and Mar 18 ʼ24 blogs.) And trebly so where the topic is a discretionary question. Here, the only law stated by the Court of Appeal is not surprising. Under R. 4.31, there is no presumption of significant prejudice to the defendant unless the delay was both inordinate and inexcusable. There is also probably an implied legal proposition, that lack of both employment and money (at the same time) can be relevant to whether delay in advancing oneʼs lawsuit was excusable, so prejudice cannot be presumed.

The Court of Appeal repeated the settled law that generally only the plaintiff has a duty to advance the lawsuit, not the defendant. The defendant does have a duty to discharge separate procedural obligations, such as the duty to answer discovery (questioning) undertakings within a reasonable time (or duty to file a defence or comply with court orders) (¶ 23). And a defendantʼs breach of such a specific procedural duty can be one element relevant to whether the plaintiffʼs delay was excusable (¶ 24). (There was also a ruling on whether signing a Form 37 to set down for trial could be acquiescence in delay.)

This Court of Appeal decision is Ranger v. Precision Geomatics 2025 ABCA 357 (Oct 31).

The other decision is by a Court of Kingʼs Bench justice. It cites few precedents about dismissal for delay. Relying on it for legal propositions would be dangerous. It is dangerous because often one cannot be sure whether certain passages are intended to state some new legal propositions. And many of the supposed or actual legal propositions stated are at best dubious, and in some cases are wrong. Several of the propositions contain gaps in logic. Rule 4.31 and much case law state the opposite to many of the propositions. To avoid undue length, I will not set out the bulky contrary case law here. Instead, I list a number of my online Juriliber blogs which do cite the case law.

This decision upsets an application judge and instead refuses to dismiss a suit for delay in prosecution. Yet the lawsuit was sixteen years old and not ready for trial. And the incidents sued over were much staler: apparently about thirty years old (see ¶ʼs 65, 66, 72). The decision never mentions the well-settled and important need to weigh heavily the inevitable deterioration of memories after even five or ten years have passed, let alone thirty. (Authorities are listed in my Feb. 12 ʼ25 and Dec. 2 ʼ24 blogs.) The decision seems to dodge that prejudice by suggesting that there was some evidence in records, and that there could not be any useful oral evidence (¶ʼs 68, 70-71). That is illogical, as my Oct. 15 ʼ24 blog explains. The plaintiff gave evidence about a number of former employees of thirty years before, and how hard it was to secure their testimony. The reasons here merely say that the witnesses had been asked and did not know much. But they were asked twenty-five or more years after the events sued over. People do not know what they can no longer remember. The decision moves the onus of proof of what a missing witness would have known or said at one time, onto the defendant. Much case law rejects that unjust and illogical Catch-22. (See my Feb. 12 ʼ25 and Dec. 2 ʼ24 and Feb. 7 ʼ22 blogs.) For one thing, the test under R. 4.31 is not who is likely to win the lawsuit, nor is it whether the delay was bad enough that at trial it would turn what was a clear win into a clear loss. Shortly after the event, the plaintiff had both witnesses and documents. Now the plaintiff only has documents. That is ordinarily fatal prejudice. (See the law listed in my Feb. 12 ʼ25, Dec. 2 ʼ24, Oct. 15 ʼ24 and July 23 ʼ24 blogs.)

This Kingʼs Bench decision also puts a heavy onus on the defendant to complete all its examination for discovery (questioning) promptly, and calls any failure to do so part of the delay which the court must note and use to eliminate or excuse the plaintiffʼs delay. (See ¶ 40.) That ignores the settled basic principle (noted at the beginning of the present blog), that the defendant has no general duty to advance the suit. (See also my Feb. 7 ʼ22 blog.) Only those things which the Rules or a court order impose on the defendant with a time limit, count that way. The Rules do not put any duty on a defendant to conduct any examination for discovery (questioning). Nor do the reasons show that the plaintiff asked the court to make the defendant do anything in that respect.

We must recall that excuses for delay are relevant only where R. 4.31ʼs presumption of prejudice is invoked.

Another novel proposition is the suggestion that periods when both parties were working on the lawsuit are irrelevant and not to be counted (¶ 44, cf. ¶ 59). That is wrong. It is trite law that the court must see how much total time has elapsed, and compare that with how much time would necessarily have elapsed had the suit been run efficiently. Under R. 4.31, all the time spent must be noted and added up. (See the authorities cited in my July 23 ʼ24 blog.)

The key assumption in this decision seems to be that the test under R. 4.31 is estimating which party moved slower than the other, a sort of tortoise vs. tortoise race. No case law for that is cited, and I do not recall ever reading any. A huge amount of case law is directly or indirectly contrary to such a procedure or calculation.

One pause suddenly occurred because the defendantʼs lawyer was ready to examine for discovery (question), but fell ill without warning. The reasons simply assume that that time taken was improper, without stating why nor citing any evidence of why. And as noted, a defendant has no duty at all to examine for discovery (question).

The decision also counts as delay, the time taken to get answers to some undertakings by the defendant. Yet some undertakings proved impossible to answer: no one under the control of the defendant knew anything relevant, nor had any documents (¶ 53). After thirty years, and a number of past employees involved, is it surprising that seeking more information would take a long time? A non-party former employee is under no duty to drop everything else and research something or to search for records, and his former employer cannot force him to do that, let alone do it quickly. After thirty years, it is hard to know who to ask, or how to contact him, or even where to begin looking for records. How can the long-gone witnessesʼ delay be the defendantʼs fault? Many decided cases say that if that is anyoneʼs fault, it is the slow-moving plaintiffʼs fault.

The Court of Kingʼs Bench decision is EMM Enr. v. Cdn. Nat. Resources 2025 ABKB 620 (Oct. 28).

– Hon. J.E. Côté

SLOW-MOVING LAWSUITS