Plaintiff Seeks To Move Case To Trial, While Defendant Seeks To Dismiss Due To Delays
August 2, 2018
When the Edmonton Oilers made a playoff run in 2006 some fans turned violent with riots erupting in Edmonton. On one night alone, charges were laid against 49 people after 300 police officers were deployed throughout the city. One fan who was arrested during the riots sued the Edmonton Police Service (“the defendant”) for injuries he claimed were sustained during his arrest.
Delays in the case
The case has still not been resolved. The injured fan, who is the plaintiff in the case, sought to set deadlines for questioning and to move the case to resolution. Meanwhile, the defendant sought to dismiss the claim for inordinate and inexcusable delay causing prejudice.
There were some procedural issues that arose as the case progressed through the courts at the same time the police department’s Professional Standards Branch investigated incident. The police stated they were not able to produce all of the relevant material and documents until the disciplinary proceedings and appeals related to them had concluded. The defendant, refused to attend any questioning until all the documents could be produces, stating they only wanted to go through the process once.
The plaintiff’s lawyer attempted to schedule questioning dates on a number of occasions between November 2010 and September 2012. On each occasion the defendant refused to attend or adjourned the scheduled date. The plaintiff was granted an order on September 5, 2012, compelling the defendant to attend questioning, notwithstanding the ongoing disciplinary investigation. At this time the defendant conceded the delay from November 2010 to September 2012 was their responsibility.
Five years later there had still not been a resolution to the matter, and it was only at this time that the plaintiff sought the direction of the court.
The application for dismissal
The defendant applied for a dismissal due to inordinate delay under Rule 4.31 of the Alberta Rules of Court, which state:
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 an 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.
There is a six-part test used to determine whether a delay meets the requirements under Rule 4.31. The court quoted the Alberta Court of Appeal and explained them as follows:
 First, has the nonmoving [sic] party failed to advance the action to the point on the litigation spectrum that a litigant acting reasonably would have attained within the time frame under review?
 Second, is the shortfall or differential of such a magnitude to qualify as inordinate?
 Third, if the delay is inordinate has the nonmoving [sic] party provided an explanation for the delay? If so, does it justify inordinate delay?
 Fourth, if the delay is inordinate and inexcusable, has this delay impaired a sufficiently important interest of the moving party so as to justify overriding the nonmoving [sic] party’s interest in having its action adjudged by the court? Has the moving party demonstrated significant prejudice?
 Fifth, if the moving party relies on the presumption of significant prejudice created by r. 4.31(2), has the nonmoving [sic] party rebutted the presumption of significant prejudice?
 Sixth, if the moving party has met the criteria for granting relief under r. 4.31(1), is there a compelling reason not to dismiss the nonmoving [sic] party’s action? This question must be posed because of the verb “may” in r. 4.31(1).
Applying the test
The court determined that even though the defendant was responsible for some of the delays, the plaintiff had delayed the proceedings on his part as well.
An “inordinate” delay is described as meaning “the differential between the norm and the actual progress of an action is so large as to be unreasonable or unjustifiable.” The court noted that while it took two years for the questioning to take place, the plaintiff waited for six years before seeking the direction of the court. The court said this is too long a period of time, and ruled the delay to be inordinate.
Once an inordinate delay has been established, the onus is on the defence to demonstrate significant prejudice as a result. The court determined the defendant did not meet this requirement. The discovery of documents were at the heart of the delays, and the passage of time does not make them any less clear. The court said the defendant could not succeed in re-framing the evidence as that related to “memory” as opposed to documents. With no prejudice established, the plaintiff was not required to rebut it.
Finally, the court asked whether there is a compelling reason not to dismiss the action. The court wrote “This matter is basically ready for trial. With some assistance from the Court in setting deadlines, this matter can move quickly to trial or some other form of resolution. This is a compelling reason not to dismiss the Plaintiff’s claim.” The court went on to set deadlines for the case to continue.
The insurance lawyers at HMC Lawyers in Calgary have successfully argued bodily injury cases in front of Alberta’s courts and defended against claims for serious bodily injury at all levels of courts throughout Western Canada. Please call us at 1-800-480-3534 or reach us online to speak with a member of our team about bodily injury defence.