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CIVIL PROCEDURE - Dismissal of action - Delay or failure to prosecute

Friday, November 15, 2019 @ 7:57 AM  


Lexis Advance® Quicklaw®
Appeal by the defendant from a decision allowing the plaintiffs’ appeal from a Master’s order dismissing the action for delay. The plaintiff sued for injuries suffered in a 2011 hockey game. The action was commenced in 2012. In early 2017, plaintiff’s counsel became ill and took time off work. In January 2018, the plaintiff’s file was transferred to another lawyer at the same firm. The chambers judge found inordinate delay in plaintiff’s prosecution of his action but found he met his burden of establishing an excuse for the delay, his first counsel’s illness. The chambers judge noted that while the second lawyer’s affidavit regarding the illness was not detailed, he was an officer of the court who must treat courts and other tribunals with candour. The judge therefore accepted the second lawyer’s evidence.

HELD: Appeal dismissed. No error in law or principle had been demonstrated in how the chambers judge assessed and weighed the evidence in the second lawyer’s affidavit. A fair reading of the chamber judge’s reasons did not suggest he placed greater weight on the affidavit evidence because the affiant was a lawyer. No inaccuracies in the lawyer’s evidence were demonstrated and the evidence, although short on detail, was uncontradicted. It was not for this Court to second-guess the weight ascribed by the chambers judge to this evidence. The chambers judge made no error in finding a reasonable excuse for the delay. Almost two years passed after the first lawyer’s illness without either counsel taking steps to schedule the matter for trial or some form of resolution. The defendant failed to establish significant prejudice. The death of a key witness in 2014 did not occur during any period of inordinate delay.

Fraser v. Jeffries, [2019] A.J. No. 1325, Alberta Court of Appeal, E.A. Hughes, D. Pentelechuk and K.P. Feehan JJ.A., October 7, 2019. Digest No. TLD-November112019010