Failure to Advance Action Leaves Plaintiff Unable to Pursue Damages in Construction Dispute feature image

Failure to Advance Action Leaves Plaintiff Unable to Pursue Damages in Construction Dispute

Construction law is not a widely popular area of law. It’s one of those areas of the law that people likely only consider if they are involved in the construction industry or have been involved in litigation around construction. 

But when you think about how many people either perform construction or hire people to do construction on their property and how often people talk anecdotally about how construction projects go wrong, it becomes easier to recognize how significant an area of law construction can be. Like many areas of the law, construction litigation is subject to limitation periods and rules about moving a matter through the courts in a timely fashion. 

The judicial process can be slow and expensive, and it’s in everyone’s best interests to resolve matters as expeditiously as possible. In our latest blog, we look at a case where a plaintiff was found to have delayed proceedings to the point where it created prejudice against the other party. They appealed that decision, allowing the Alberta Court of Appeal to issue a ruling that outlines what does and does not qualify as moving an action forward. 

Plaintiff sues following failure of wall

The issue began when the plaintiff (appellant) sued the defendant (respondent) after a vertical shoring wall failed at the plaintiff’s condominium construction site in the Spring of 2009. By 2019 the matter had still not been resolved, leading the defendants to apply for the action dismissed for delay. Such as motion is allowed under the Alberta Rules of Court, which state,

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 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.

(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.

In the original decision, the chamber’s judge found that the matter proceeded appropriately from 2011 to 2013, during which parties worked through the early stages of litigation. However, from 2013 onwards, the chambers judge found that litigation had stalled for two reasons. The first was that the plaintiff failed to substantiate the damages they were seeking. The second was the plaintiff’s repeated efforts to set the matter down for trial. 

In their decision, the chambers judge wrote that the six-year period of inactivity from 2013-2019 was optional for what appeared to be a straightforward construction litigation matter. The chambers judge also wrote that the plaintiff knew what had to be done to move the matter forward and their failure to do so was inexcusable, giving rise to a presumption of significant litigation prejudice. Additionally, the Chambers Judge wrote that while the plaintiff had taken some steps to move things forward, none of those were significant in nature (specifically citing the plaintiff’s filing of a notice of appointment for questioning and an application to set a trial date). 

Did the plaintiff do enough to move the matter forward?

In their appeal, the plaintiff submitted that the chamber judge improperly failed to recognize the significance of their attempts to advance the action. However, the court wrote that in asking it to determine the significance of the steps the plaintiff did take, such as asking for better responses from the defendant in 2016 and filing supplemental affidavit records in 2018. A provision of damages in 2019 amounted to an attempt to relitigate questions of fact, with the plaintiff looking to re-argue a case that has already been decided. 

The court wrote that the chambers judge had assessed the evidence and made findings of fact about whether the delay was excusable, finding that the defendants did not do anything to stall or obstruct the process. The chambers judge’s decision to rule that too much time had passed was entirely within their discretion. 

The court turned to the significance of the steps that the plaintiff made, stating that the plaintiff bore the primary obligation in moving the litigation forward and should have turned to the Rules of Court if they felt they were facing challenges in doing so. The court cited the chambers judge’s decision, which stated that the plaintiff’s “periodic updating of their production” and continued refinement of their damages claim did not significantly advance the action and that nothing they did in that six-year period advanced the action in an essential or meaningful way. In addition, the court found that the defendant’s conduct was in no way responsible for the failure to move things forward. 

Contact HMC Lawyers In Calgary For Experienced Construction Law And Litigation Advice

The litigation team at HMC Lawyers brings more than 130 years of cumulative litigation experience to our firm. This extensive experience allows us to provide strategic legal advice and advocacy for clients facing commercial disputes and those stemming from construction litigationcondominium matterscontractual disputes and more. Working with our team will help ensure that you meet your obligations as either a plaintiff or defendant and that your matter proceeds through the courts as quickly and efficiently as possible. In addition to supporting clients in litigation, we are proud to offer mediation and arbitration services that might help you resolve your matter more quickly and affordably than through the courts.  Contact us online or by phone at 403-269-7220 to see how we can help you today.

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Contact HMC Lawyers for Exceptional Legal Guidance

At HMC Lawyers, we offer strategic legal advice. Our breadth of practice experience allows us to promptly handle almost every litigation-related legal issue that may arise, and anticipate potential roadblocks that may delay its resolution. To make an appointment with a member of our team, contact us online or call 403-269-7220

For articling and/or summer student inquiries please contact either Kristen Hagg or Praveen Thind by calling 403.269.7220 or emailing them directly at

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Calgary, AB
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