The Supreme Court of Canada (SCC) recently dismissed leave to appeal from the Alberta Court of Appeal decision in Humphreys v. Trebilcock (Humphreys), which is perhaps the most comprehensive consideration to date of whether delay in the prosecution of a plaintiff’s case warrants dismissal of an action.
The decision by the Alberta Court of Appeal was subject to comment in our April 2017 Blakes Bulletin: Alberta Court of Appeal Cracks Down on Chronic Delay, Throws Case Out of Court. The SCC leave application obtained support from the Alberta Civil Trial Lawyers Association and Ontario Trial Lawyers Association by way of affidavits, which formed part of the voluminous materials filed. Despite findings of fact in the courts below that the appellants had engaged in inexcusable delay in prosecuting their action, which resulted in significant prejudice to the respondents, the appellants in the leave application argued that the real source for the delay was the result of systemic delays in the civil justice system. The respondents in the leave application rebutted that position as being “pure sophistry” and inconsistent with the courts’ findings. The denial of leave reinforces the Alberta Court of Appeal’s condemnation of delay in civil litigation and its harmful effects to the justice system as a whole. It also confirms the approach taken by the Alberta Court of Appeal in addressing non-litigation prejudice caused from delay, which had not been addressed before in Alberta.
The dismissal of the leave application by the SCC will elevate the importance of the Humphreys decision and the Alberta Court of Appeals’ methodical, careful and well-reasoned decision. It will also provide guidance to Alberta courts and to litigants in applications to strike out actions where there is inordinate and inexcusable delay that has resulted in significant litigation and/or non-litigation prejudice to a defendant.
CRACKDOWN ON DELAY ON THE RISE IN CANADIAN COURTS
The court’s condemnation of litigation delay is consistent with a broader policy position recently adopted by Canadian courts, including the SCC. Delay in the prosecution of court actions has been rising steadily.
The Humphreys decision and refusal to grant leave to appeal by the SCC stands as a warning to litigants in Alberta that there are real consequences to parties who fail to pursue their legal claims with speed and efficiency. While the facts in Humphreys involved delays of many years, hopefully litigants will take heed of this decision and the courts will be more willing to impose sufficient remedies for delay, particularly given the significant backlog of civil cases in Alberta.
Blakes and E. Mark Keohane successfully represented the respondents in the leave application to the Supreme Court of Canada.
