The risks of failing to document memories and diligently progress an action

March 1, 2023 | Paul E. Ryzuk, Ryley Schmidt

Introduction and overview

Rule 4.31(1)(a) of the Alberta Rules of Court, Alta Reg 124/2010 (the “Rules”) provides that if “delay” has occurred in an action, the Court may dismiss all or any part of a claim if the Court determines that the alleged delay has resulted in significant prejudice to a party.  Often, applications for delay devolve into a finger-pointing exercise where the Court is invited to compare the actual progress in an action as per the Rules as against institutional delay, indulgences granted, and other periods of inactivity.

In Cochrane (Town) v Austech Holdings Inc, 2022 ABCA 377 (“Cochrane”), the Court of Appeal affirmed a Case Management Justice’s decision to dismiss claims for long delay pursuant to rule 4.31 of the Rules and, in the process, provided a warning to complete the disclosure and questioning stages of litigation in a timely manner, or risk having an action dismissed for delay.


The claims at issue, originally filed in 2011, were made by various homeowners and the Town of Cochrane against others regarding the failure of retaining walls at a residential property development (the “Actions”).  The Actions alleged breach of contract and negligence.

The Actions were acknowledged to be complicated and the Court conceded that the parties had undertaken various procedural steps.  Between 2011 and 2014, defences were filed, affidavits of records were exchanged, third parties were added, and applications to strike or summarily dismiss various elements of the Actions were filed and heard.  In 2012, the Actions were placed into case management, and the parties unsuccessfully engaged in mediation in 2014.  Between 2015 and 2019, further statements of defence were filed, third parties were added, discontinuances were filed, and further summary dismissal applications were heard.[1]

While parties disagreed on whether document production was complete or not, at the time of the delay applications brought by several groups of defendants in 2019, it was clear that only one defendant had been questioned.  Further, while five expert reports had been prepared, none of the reports were trial ready, and none of the reports addressed standards of care or causation.[2]

Case Management decision

In the initial delay application, the Case Management Justice found that the homeowners and the Town of Cochrane had not advanced the Actions to the point that a litigant, acting reasonably, ought to have attained within eight years, and estimated that a further two years would be required before the Actions would be ready for trial.  It was found that the delay in completing questioning and obtaining expert reports was “inordinate,” raising a presumption of significant prejudice.

The Court found that this was not a case that could be resolved on the basis of paper: witnesses’ memories were found to be necessary in determining whether the requisite standards of care were met.  As the homeowners and the Town of Cochrane were unable to rebut the presumption of prejudice, the Court found that there was actual prejudice to the applicant defendants and the Actions were dismissed.[3]  The homeowners and the Town of Cochrane appealed that order.

Court of Appeal decision

The Court of Appeal agreed with the Case Management Justice that there had been delay in prosecuting the Actions and that, at the time of the delay applications, the parties were far from ready for a trial.  While the Case Management Justice specifically acknowledged the complexity of the Actions, there had been virtually no activity on most of the essential steps necessary to move the litigation forward, including questioning.[4]  Although the number of defendants was reduced significantly, and a number of third party claims had been resolved over the years, those steps neither reduced the number of issues to be considered at trial, nor assisted in the development of the necessary evidential framework for those issues to be addressed fairly at trial.[5] As the conclusion regarding significant prejudice is a mixed question of fact and law, the Court of Appeal gave deference to the Case Management Justice’s assessment that the eight years of delay resulted in significant prejudice.[6]

The Court of Appeal emphasized that the effect of litigation delay is always a matter of degree: the “point on the litigation spectrum” a reasonable litigant would have reached in any particular case is incapable of a precise definition.  Rather, the answer to the question of whether there has been inordinate delay, and therefore potential significant prejudice, is based on an “examination of the record, the submissions of counsel, and the experience of the judiciary.”[7]

Upon initial review, the result in Cochrane appears to be contradictory to the result in Casman Building Ltd v Weir-Jones, 2021 ABQB 761 (“Casman”), wherein the Court chose not to dismiss certain actions commenced in 2005, 2006, 2007 for delay, notwithstanding that those actions were still not trial ready in 2018, being the time in which applications to dismiss pursuant to Rules 4.31 and 4.33 were made.  However, the cases are distinguishable from one another on the basis of both the comparative progress of the actions and the availability of evidence.

Specifically, in Casman, Applications Judge W.S. Schlosser found that there had been a long delay in various related actions, but declined to exercise his discretion to dismiss them pursuant to Rule 4.31.  In that case, questioning of all parties had taken place, undertakings had been exchanged, and questioning on undertakings had also been completed.  Virtually all of the material evidence was contained either in production or was memorialized in the various transcripts from questionings.  While the Court acknowledged that memories are still liable to fade over time, it was nevertheless satisfied that those memories could be refreshed from available material, and there were no known material witnesses whose evidence was unavailable.  Due to the “completeness” of the record, the Court found it was not in a position to conclude that significant prejudice existed in those actions.[8]

Key takeaways

The Cochrane decision emphasizes the Court’s expectation that plaintiffs progress their actions through the “essential steps” of litigation with a degree of efficiency.  This includes at least document production, questioning, the exchange of expert reports, and alternative dispute resolution, all with the objective of becoming “trial ready” in accordance with the Rules.  While the complexity of actions, the number of parties, or the quantity of any interlocutory applications being filed and heard may vary from case to case, the obligation remains the same.  As noted above, while there is no “precise definition” of inordinate delay, it is clear that failing to preserve the evidentiary record within a “reasonable” time will likely qualify and will therefore be fatal to a claim.

The contrast between the Cochrane and Casman decisions also indicates that if oral evidence is required to establish a claim, or will otherwise be an important component in establishing a claim, it would be prudent to take steps to preserve the memory of key witnesses, so as to mitigate the possibility of significant prejudice due to the passage of time. Memories can be refreshed by referencing specific documents and transcripts from questioning.

Miller Thomson LLP is here to help with all your legal needs.  If you have any questions about the Cochrane decision, Rule 4.31, or any other matter, please contact Miller Thomson’s Commercial Litigation team.

[1] Cochrane (Town) v Austech Holdings Inc, 2022 ABCA 377 at paras 8-11 (“Cochrane”).

[2] Cochrane, ibid at paras 12-13.

[3] Cochrane, ibid at para 19.

[4] Cochrane, ibid at para 28.

[5] Cochrane, ibid at para 29.

[6] Cochrane, ibid at para 40.

[7] Cochrane, ibid at para 25, citing TransAmerica Life Canada v Oakwood Associates Advisory Group Ltd, 2019 ABCA 276 at paras 20 and 22.

[8] Casman Building Ltd v Weir-Jones, 2021 ABQB 761 at paras 51-54.


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