Construction claims often arise long after the events in question have taken place. That delay is sometimes unavoidable, as defects can take years to appear. Time is also lost to genuine attempts to resolve issues both before and after going to court.
In such cases, how do courts determine if an inordinate delay has occurred? In Peters v Countryside Masonry Inc. (“Countryside Masonry”), Justice N.E. Devlin of the Alberta Court of King’s Bench (the “Court”) dismissed a residential construction claim under Rule 4.31 of the Alberta Rules of Court, because very little substantial steps were taken over the eight-year period since the litigation was commenced.
This decision emphasizes the responsibility of parties to move litigation forward meaningfully. Failure to do so may lead to your claim being struck. In doing so, the Court underlines the importance of meaningful advancement, as opposed to periodic action which does little to advance the claim to trial or resolution.
How the claim stalled over eight years
The defendant subcontractor completed masonry work for the plaintiffs’ home pursuant to an oral agreement between 2003 and 2007.[1] In 2016, the plaintiffs commenced a claim against the defendant, alongside other parties, alleging that the masonry work was deficient and had led to water damage to the home.[2] The claim also alleged that the defendants had fraudulently concealed the substandard nature of the work.[3]
Some procedural steps were taken on the claim over the years, such as discontinuances being filed against certain defendants, and the exchange of documents and undertakings.[4] However, the core work needed to move the case toward trial did not happen. In particular:
- Key witnesses were never questioned, including the subcontractor’s principal who performed the masonry work first‑hand.[5]
- Questioning of that principal was twice scheduled in 2018 and twice cancelled by the plaintiffs, despite strong objections from defence counsel.[6]
- Another central witness, described as the “driving force” behind the project, died before any questioning could be arranged.[7]
- No expert reports were exchanged in the eight years following the commencement of the action.[8]
In 2024, the minimal progress in moving the litigation forward led the defendant to apply to dismiss the action for delay under Rule 4.31 of the Alberta Rules of Court.[9] Under Rule 4.31, the court can dismiss a claim if a) a delay has occurred and b) the delay has resulted in significant prejudice to a party.[10] Under this rule, inordinate and inexcusable delays are presumed to have resulted in significant prejudice to the party bringing the application.[11]
The Applications Judge dismissed the defendant’s Rule 4.31 application, finding that while delay had occurred, it had not been inordinate in the circumstances.[12] The defendant appealed the Applications Judge’s ruling.
From delay to dismissal: The Court’s ruling on the appeal
In determining whether the delay in the case at bar had reached the level of being inordinate and inexcusable, the Court considered:
- the complexity of the matter;
- the number of witnesses and experts involved;
- the scope of documents; and
- the length of time that had elapsed since the events in question.[13]
Applying the first criteria, the Court characterized the matter as a “relatively simple residential construction dispute” that revolved around whether the work done had been substandard.[14] With respect to the second factor, the cast of relevant witnesses and experts was small, limited to the individuals who directed and completed the masonry work, alongside the relevant experts.[15]
Despite the fact that this was a small group, the Court emphasized that with the exception of one of these witnesses being questioned virtually in 2025, the other key witnesses had never testified as to the events that had taken place.[16] Turning to the third factor, the Court noted that since no written contracts had existed, document production should not have taken place over several years.[17] Finally, the Court pointed to the fact that more than two decades had passed since the construction work had taken place.[18] Taken together, the Court stated that a matter like this should have been ready for trial by the fifth year, but “[n]umerous basic and fundamental steps had not been taken”.[19]
Reflecting on Alberta’s culture of litigation delay, the Court stated:
A first step towards a change of culture surrounding delay is for the courts to stop accepting a decade-to-trial timetable as tolerable for ordinary cases of low to moderate complexity. The fact that a letter was sent, or a document filed, or a small step taken every few months does not amount to timely, purposeful litigation.[20]
The Court determined that the delay in the case at hand was inordinate and unreasonable, as the plaintiffs had proceeded as if getting to trial was a distant and undesirable outcome.[21] Further, the defendants had not contributed to the delay, and the plaintiffs had failed to provide a reasonable defence for the delay.[22] The Court also found that the defendants had suffered prejudice from the delay, as many years had passed since the events in question which had in turn led to eroded memories.[23]
In conclusion, the Court granted the defendant’s application and dismissed the plaintiffs’ claim due to inordinate and inexcusable delay.[24]
Key takeaways and mandatory litigation plans
In a Notice to the Profession and Public issued on July 10, 2025, the Court announced the introduction of mandatory litigation plans. These plans are designed to encourage the timely and efficient resolution of civil claims. Parties must now agree upon and file litigation plans for all civil actions commenced by way of Statement of Claim on or after September 1, 2025. These plans must be filed within four months from the service of the first Statement of Defence. The impact of these plans is yet to be seen, but it is key to note that the obligation is on both parties, not solely the plaintiff, to advance the claim. While this obligation makes sense as it provides plaintiff’s with options in the face of delays, it will be interesting to see its impact in situations where the plaintiff is responsible for the delay, exactly how much can a defendant be required to cooperate or even advance litigation, where the plaintiff appears to have no interest in pursuing their claim?
While every inordinate delay case will be dependent on its facts, the Countryside Masonry decision alongside the introduction of mandatory litigation plans reflects a judicial intolerance for substantive steps not being prioritized. Parties should keep in mind that:
- Under the mandatory litigation plan timeline, parties must be ready for trial within three years of the date that the first statement of defence is served.
- Claimants must advance their claim purposefully. Even where the focus is on settling a matter, the litigation must be driven forward.
- Without a written standstill agreement parties cannot assume that delays are consented to.
- Document production and questioning of key witnesses should take place as soon as possible. As the Court noted, memories fade, and valuable evidence may be lost if parties delay the questioning process without reason. This is particularly the case where the action is commenced well after the events in dispute.
If you are involved in a construction law claim as either a plaintiff or a defendant, and have concerns about delays in your matter, Miller Thomson’s Construction and Infrastructure lawyers can provide strategic and practical advice to ensure that your legal rights are protected.
[1] Peters v Countryside Masonry Inc, 2025 ABKB 713 at paras 1–2 [Countryside Masonry].
[4] Ibid at paras 7, 16.
[5] Ibid at para 10.
[6] Ibid at paras 9–11.
[7] Ibid at paras 14, 20.
[8] Ibid at para 20.
[9] Alta Reg 124/2010.
[10] Ibid, Rule 4.31(1)(a).
[11] Ibid, Rule 4.31(2).
[12] Countryside Masonry, supra note 1 at para 23.
[13] Ibid at para 30.
[14] Ibid at paras 33, 36.
[15] Ibid at para 34,
[16] Ibid at para 35.
[17] Ibid at para 61.
[18] Ibid at para 65.
[19] Ibid at paras 36, 44.
[20] Ibid at para 56.
[21] Ibid at para 58.
[22] Ibid at paras 59–61.
[23] Ibid at para 65.
[24] Ibid at para 73.
