Not Above the Rules: Alberta Court of Appeal Dismisses Self-Represented Action for Delay
June 5, 2019
In its recent decision in Morrison v. Galvanic Applied Sciences Inc., the Alberta Court of Appeal (Court) reaffirmed that the Alberta Rules of Court (Rules) apply in full force to self-represented litigants. The Court upheld the dismissal of the plaintiffs’ claim, which had been commenced by the originating application when the plaintiffs were self-represented. The claim was dismissed on both the long delay rule, R.4.31, and the “drop dead” rule, R. 4.33. The decision serves to underscore the Court’s limited tolerance for plaintiffs who fail to prosecute their actions in a timely manner.
Blakes successfully represented the defendant, Galvanic Applied Sciences Inc. (Galvanic), in this matter.
The appeal arose from an Alberta Court of Queen’s Bench decision to dismiss the plaintiffs’ case for delay. The plaintiffs, who were initially self-represented, were dissenting shareholders in a transaction and had filed an originating application to seek a fair value determination of their shares. The plaintiffs filed the originating application, without a supporting affidavit, in 2013. The plaintiffs then filed a 99-page supporting affidavit almost three years later and mere days before the “drop-dead” date. Galvanic then applied to dismiss the case for delay pursuant to Rules 4.31 and 4.33. Galvanic was successful both before the master in chambers and in the appeal from the master’s decision at the Alberta Court of Queen’s Bench. The plaintiffs had legal representation in the unsuccessful appeal of this dismissal to the Alberta Court of Queen’s Bench and the Alberta Court of Appeal.
COURT OF APPEAL DECISION
The Court dismissed the appeal and agreed with the lower court that the action should be struck for delay pursuant to Rules 4.31 and 4.33.
Pursuant to Rule 4.31, the Court found that the delay was inordinate and inexcusable. In particular, the Court noted that a comparator litigant who commenced an originating application would have filed all affidavits, completed questioning on them, retained and delivered expert reports, and secured a hearing in the time taken by the plaintiffs to file an affidavit. The affidavit did not contain very much admissible evidence. That which was admissible reflected only publicly available documents that had been available for many years.
The plaintiffs argued that the delay was excusable because they had prepared their supporting affidavit without legal counsel. The plaintiffs found that was difficult and time-consuming. The Court rejected this position. It stated that the inordinate delay was not excusable merely because the plaintiffs had been self-represented. The plaintiffs had advanced their case more slowly than was reasonable in the circumstances. Accordingly, the presumption that the delay prejudiced Galvanic was engaged. The plaintiffs were unable to rebut the presumption.
The Court also agreed with the lower court that Rule 4.33 applied to dismiss the action for delay. Rule 4.33 requires a court to dismiss an action where three years have passed without a significant advance. The Court found that the plaintiffs’ supporting affidavit did not constitute a significant advance in the action. The affidavit did not narrow the issues or assist the Court.
The Court emphasized that self-represented litigants are expected to comply with the Rules. It stated that although courts will consider the special challenges that these litigants face, courts cannot ignore clear noncompliance with the Rules, especially when the opposing party has been prejudiced. Explanations that merely seek forgiveness for delay because a party is self-represented are unacceptable. The Court noted that “[c]lear noncompliance with mandatory provisions of the Alberta Rules of Court by a self-represented party cannot simply be overlooked, especially in the face of prejudice to the other side. While we understand the challenges facing self-represented parties, the bottom line is that all litigants are expected to comply with the Alberta Rules of Court.” Although access to justice remains a relevant concern, the Court reaffirmed that the Rules apply to all litigants equally. All litigants, including self-represented litigants, must diligently prosecute their claims and comply with mandatory rules or face the consequences.
The Court confirmed that delay rules apply to actions started by originating applications, but that application must consider the unique nature of that type of action. Originating applications are designed to proceed faster than standard actions commenced by statement of claim. The procedural steps are fewer and truncated. Actions started by originating applications, therefore, should conclude faster. For this reason, any unreasonable delay, such as a three-year delay in providing a supporting affidavit, will be closely scrutinized by the courts.
This decision provides strong guidance about the application of the rules to self-represented litigants. Self-represented litigants cannot rely on an excuse of unfamiliarity with the law or procedure to justify a failure to adhere to mandatory procedures, particularly when it causes prejudice. This case also underlines that courts are becoming less tolerant of delays and will penalize litigants, self-represented or not, who do not advance actions properly. Finally, the case makes clear that those who commence actions by way of originating application should be prepared to proceed expeditiously.
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