In Condominium Corporation 052 0580 (o/a The Tradition at Southbrook) v Carrington Holdings Ltd, 2022 ABKB 623 (Carrington), Justice Mandziuk held that the Plaintiff had allowed inordinate and inexcusable delay and dismissed the action in its entirety. Relying largely on Humphreys v Trebilcock, 2017 ABCA 116 (Humphreys), which is considered to be the most comprehensive decision to date on whether delay warrants the dismissal of an action, the Court in Carrington reiterated that delay in litigation is a “longstanding and corrosive problem” that harms the public at large. Further, the Court reminded Plaintiffs that they may face “harsh consequences” if they do not advance their action with appropriate diligence.
Justice Mandziuk further commented that litigation must be about starting an action, discovering what each party is alleging, discovering the evidentiary and legal support for the allegations, and then resolving the matter. He further reminded lawyers and litigants alike that once a lawsuit has been filed, there are only two possible outcomes – settlement or a decision by the Court. Those outcomes should be achieved as expeditiously as possible.
The action in Carrington commenced when Condo Corp filed its Statement of Claim on February 3, 2011. Carrington filed a Statement of Defence in May of 2012 and filed Third Party Claims on January 18, 2013, naming 71 Third Parties (including 5 John Does). The dispute arose over alleged deficiencies in the design and construction of a two-phase residential condominium project in the Blackmud Creek area of Edmonton.
The Plaintiff has the primary obligation to move litigation forward. The Court noted that “[t]here is a significant difference between a Defendant ‘doing nothing’ in the face of inactivity by the Plaintiff, and the Defendant failing to discharge its procedural obligations.” In finding that the Condo Corp had failed to discharge this obligation, the Court noted that Condo Corp’s “approach to this action lacked fervour, there appears to have been little urgency on its part to the move the action along.”
The Defendant repeatedly sought disclosure from the Plaintiff and frequently had to follow up with the Plaintiff to complete steps they promised to take (such as amending the Statement of Claim). The Defendant was continually forced to request timely responses to correspondence. After eleven years, the matter was still far from being ready for trial.
While there is no specific formula to dismiss an action for delay, the Court of Appeal in Humphreys outlined the six questions the Court must consider when applying Rule 4.31 of the Alberta Rules of Court, Alta Reg 124/2010, commonly referred to as the long delay rule. The questions the Courts must consider are:
- Has the non-moving party failed to advance the action at a reasonable pace?
- Is the delay significant enough to qualify as inordinate?
- If inordinate, is there an explanation for the delay? If so, does this explanation justify the inordinate delay?
- If the delay is inordinate and inexcusable, has it been significantly prejudicial to the moving party to justify dismissal?
- If the moving party relies on the presumption of significant prejudice, has the non-moving party rebutted the presumption?
- If the moving party has satisfied all the conditions under Rule 4.31, is there any compelling reason not to dismiss the action?
Applicants in a long delay application have the onus to prove, on a balance of probabilities, that the delay has resulted in significant prejudice. If an applicant establishes that the delay is inordinate and inexcusable, the delay is presumed to have resulted in significant prejudice. The respondent can attempt to rebut the presumption of significant prejudice.
Justice Mandziuk indicated that the dispute would turn on disputed facts, the meaning of documents, the credibility and conclusions of experts who inevitably must rely on facts to reach their conclusions and, given that the events at issue occurred 14-17 years, the memory, or lack thereof, of the individuals involved would inevitably affect the evidence.
In dismissing both the main action and the multiple Third-Party Claims, the Court found that the Defendant was far more active in advancing the action than the Plaintiff. The Court noted that the Defendant was pressing for disclosure and for the Plaintiff to complete certain steps, all of which contributed to the Court concluding the Plaintiff’s approach to the action lacked the necessary fervour. Even in a large construction litigation action with complicated issues, the delays were considerably in excess of what is considered to be reasonable.
The Court in Humphreys condemned litigation delay and admonished those who contributed to this larger societal issue. Five years after Humphreys, litigation delay remains a prevalent problem in Alberta and in Canadian courts generally. Carrington is the Alberta Court of King’s Bench’s latest warning to litigants in Alberta that delay will not be tolerated.
Carrington confirms the Plaintiff has the primary obligation to move litigation forward. Parties conducting litigation in Alberta courts must act in a timely and cost-effective way, finding the quickest means to resolve the claim and communicating with each other throughout. Once litigation has commenced, the parties involved must focus on settling their matter or going to trial. All conduct must be concentrated on those outcomes.