Timely access to justice has been the subject of significant judicial commentary since the Supreme Court of Canada cast the spotlight on the issue in its 2014 decision of Hryniak v Mauldin, 2014 SCC 7. In Hryniak, the Supreme Court of Canada called for a culture shift in order to create an environment that promoted timely and affordable access to the civil justice system.
One method by which timely and affordable access to justice can be obtained, or at a minimum, enforced, is through dismissal for delay proceedings. The dismissal for delay rules under the Manitoba Court of Queen’s Bench Rules saw significant revisions that came into effect on January 1, 2018 in an effort to address the necessity for timely access to the civil justice system.
These revisions included amendments to Rule 24.01, the traditional dismissal for delay rule, to include, among other things, a presumption of significant prejudice in circumstances where delay in an action is deemed to be inordinate and inexcusable. In addition, a new dismissal for ‘long delay’ rule was created pursuant to Rule 24.02 whereby an action must be dismissed if three or more years have passed without a significant advance in the action.
These rules have both been the subject of recent commentary by the Manitoba Court of Appeal. The recently released Buhr v Buhr, 2021 MBCA 63 provides instruction as to the application of Rule 24.02 – the new ‘long delay’ rule – while The Workers Compensation Board v. Ali, 2020 MBCA 122, a decision released some six months earlier, provides guidance surrounding the revisions to Rule 24.01 – the traditional dismissal for delay rule. In so doing, the Buhr and the Ali decision have established the legal framework surrounding the new dismissal for delay rules in Manitoba.
We intend to provide a brief review of those decisions over the course of a two part series. In Part I, we intend to focus on the Buhr v Buhr, 2021 MBCA 63 decision and its impact on Rule 24.02(1), while in Part II, we intend to focus on The Workers Compensation Board v Ali, 2021 MBCA 122 and its impact on Rule 24.01(1).
Buhr v Buhr, 2021 MBCA 63
The facts of the Buhr decision are relatively uncomplicated. The Buhr decision involved a claim in battery against a number of individual Defendants. The Plaintiff’s statement of claim was filed on June 1, 2012 and the pleadings in Buhr were closed in 2014 upon the Plaintiff’s filing of a reply and defence to a counterclaim.
Documentary disclosure occurred some two years later in 2016 and examinations for discovery began, but were not completed, in the same year. By 2019, the Plaintiff had only provided answers to some (but not all) of its outstanding undertakings. That being said, the Plaintiff had also set the matter down for a pre-trial conference with a view to moving the action towards a trial. Notwithstanding the fact that the matter had been set down for a pre-trial conference, the Defendant moved to have the action dismissed for delay. The hearing for the motion was heard after the initial pre-trial conference was held.
The motion judge ultimately dismissed the action for delay, concluding that there had not been a significant advance in the action for a period of three years. The motion judge held that, among other things, the provision of partial answers to undertakings did not constitute a significant advance in an action, particularly where the balance of the undertakings remained outstanding. The motion judge also held that the pre-trial conference had occurred outside the three-year period following the examinations for discovery. In other words, while the scheduling of a pre-trial conference may have constituted a significant advance in the action in the ordinary course, it had transpired after a three year period without any significant advance in the action. Therefore, Rule 24.02(1) had been triggered and, given the inapplicability of any exceptions under Rule 24.02(1), the action had to be dismissed.
Finally, the motion judge also concluded that, in any event, there had been inordinate and inexcusable delay in the action which gave rise to a presumption of significant prejudice. The motion judge found that the presumption of significant prejudice had not been rebutted by the Plaintiff and therefore, indicated that he would have also dismissed the action pursuant to Rule 24.01(1).
The Plaintiff appealed to the Manitoba Court of Appeal. On appeal, the focus of the Court’s attention was on whether the motion judge erred in his interpretation of Rule 24.02(1) and whether or not there had, in fact, been a significant advance in the action.
The Court of Appeal held that the motion judge did not err in determining that more than three years had passed without a significant advance following examinations for discovery. In so finding, Justice Simonsen explained that Rule 24.02 is a distinct departure from the former Rule 24.01, which previously governed motions for dismissal for delay. Justice Simonson provided some insight into the impetus for the rule, stating:
The rationale for the rule is to weed out inactive cases, and address complacency in advancing civil actions. With respect to r 24.02 in particular, I note the following passage from DL et al v CP et al, 2019 MBQB 42 (at para 32):
… The revised Rules change the focus to spotlight delay, which is often more defined and demonstrable than prejudice. A sharper, perhaps harsher, dawn is at hand. Particularly with Rule 24.02 now in force, with its very limited exceptions, counsel and parties will have to be most vigilant to advance actions. Stagnant actions will be weeded out, and active claims finished swifter. Balancing for “a kind of essential justice” will not save the day.
Justice Simonsen proceeded to highlight the mandatory nature of the rule. Justice Simonson explained that this language is consistent with Alberta’s jurisprudence regarding its long-delay rule, whose province also includes the mandatory word “must” in the language of the rule. This language makes clear that dismissal of an action is mandatory if there has been no significant advance in an action for three or more years and none of the exceptions articulated under Rule 24.02(1) apply. In other words, unlike Rule 24.01, there is no residual discretion left with the motion judge if the elements of the rule are satisfied and none of the exceptions apply.
Next, Justice Simonsen explained that any three year period can be considered for the purpose of a motion under Rule 24.02. The Plaintiff had argued that the motion judge erred by not specifically considering the three-year period that immediately pre-dated the filing of the motion for dismissal for delay for the purpose of conducting his analysis under Rule 24.02(1).
Justice Simonsen disagreed and noted that rule 24.02(1) contained no specific language to support the proposition that the three years must cover the period immediately prior to filing a motion for dismissal for delay. In that respect, Justice Simonsen explained:
Aside from the plaintiff’s argument about the impact of the conduct of the defendants, what three years are to be considered under r 24.02(1)? The rule contains no specific language to support the proposition that the three years must cover the period immediately prior to filing a motion for dismissal for delay. Rather, the rule is triggered (subject to the exceptions stated) once any “three or more years have passed without a significant advance in an action”. This approach is consistent with the Alberta authorities.
Justice Simonsen proceeded to comment on transitional issues that may arise by the enactment of Rule 24.02. Specifically, Justice Simonsen consider how delay that pre-dated the enactment of Rule 24.02 should be factored into the analysis?
As Justice Simonsen explained, there is a compelling reason not to apply Rule 24.02(1) to three-year periods that fully elapsed prior to January 1, 2018. Rule 24.02 was a significant departure from the former Rule 24.01 by which the parties would have governed themselves prior to January 1, 2018. Justice Simonsen indicated that a serious injustice would arise if parties were governed by Rule 24.02 with respect to periods of delay that fully elapsed prior to January 1, 2018 — without being given an opportunity, with notice of the enactment of Rule 24.02, to make a significant advance in the action.
Finally, Justice Simonsen set out the legal test for determining what steps constitute a “significant advance in an action”. In that regard, Justice Simonsen endorsed the prevailing legal test being applied in Alberta and in particular, the Alberta Court of Appeal’s instruction in Morrison v Galvanic Applied Sciences Inc., 2019 ABCA 207. There, the Alberta Court of Appeal Court articulated the following test:
A significant advance exists if the nonmoving party in the applicable timeframe has done something that increased by a measurable degree the likelihood that either the parties or the court would have sufficient information to rationally assess the merits of the parties’ positions and be in a better positon to either settle or adjudicate the action. Has the nonmoving party done something that “narrow(ed) the issues, complete(d) the discovery of documents and information, or clarif(ied) the positions of the parties?”
Justice Simonsen held that, in addition to the foregoing, the Court needs to consider whether the step taken moves the litigation forward in a meaningful way considering the nature, value, importance and quality of the action. In that respect, Justice Simonsen explained that when considering a potentially significant advance, a court must “view the whole picture of what transpired in the three-year period, framed by the real issues in dispute, and viewed through a lens trained on a qualitative assessment. This necessarily involves assessing various factors including, but not limited to, the nature, value and quality, genuineness, timing, and in certain circumstances, the outcome of what occurred.”
Ultimately, within the context of this legal framework, Justice Simonsen concluded that the quality and nature of the partial answers to undertakings did not meaningfully advance the case. As a consequence, the Manitoba Court of Appeal concluded that the motion judge had not erred and the appeal was dismissed.
The Buhr decision provided clarity and instruction on a number of issues relating to Rule 24.02(1), including the following: the legal test to be applied when determining what constitutes a significant advance in an action; the relevant three-year period of time to be considered; and the manner by which transitional issues that may arise ought to be resolved.
With that in mind, Part II of this series will turn its attention to The Workers Compensation Board v Ali, 2020 MBCA 122 and its impact on the revised Rule 24.01(1).