Executive Summary: Key Legal and Evidentiary Issues

• Action dismissed due to inordinate and inexcusable delay of over 13 years since the claim was filed.

• Delay was found to have caused significant prejudice, particularly from faded memories and unavailable evidence.

• The defendant did not waive or acquiesce in the delay despite participating in procedural steps and agreeing to amendments.

• Standstill agreement only explained part of the delay (3 years); the rest remained unjustified.

• Pentagon’s late amendments, including new claims for code deficiencies and joint venture losses, were deemed too delayed to justify further proceedings.

• Court applied Rule 4.31 of the Alberta Rules of Court, referencing leading authority Humphreys v Trebilcock, to assess delay and prejudice.

Facts of the Case

Pentagon Structures Ltd (Pentagon) and Field, Field & Field Architecture Engineering Ltd (Field) were joint venture partners in the design and construction of the Enerplex, a multi-sport facility in Fort St. John, British Columbia. The project faced problems when it was discovered that the skating oval was 16 inches short, requiring redesign and reconstruction. Pentagon alleged negligence by Field and sought over $1.7 million in damages.

The initial statement of claim was filed in 2010, with Field filing a defence shortly after. A standstill agreement was signed in 2012, pausing proceedings until 2015. However, significant inactivity continued even after the agreement ended, despite new claims and procedural orders between 2018 and 2023.

Pentagon argued that the delay was partially justified due to ongoing joint venture litigation with third parties, which settled in 2018. They resumed prosecution only thereafter and later attempted to add claims based on Field's share of losses under the joint venture agreement and building code issues.

Procedural History and Applications

Field applied under Rule 4.31 of the Alberta Rules of Court to dismiss the case due to delay. Pentagon had also filed for partial summary judgment, but only Field’s dismissal application proceeded in special chambers.

Judge Birkett reviewed the procedural history, including multiple amended pleadings, delayed questioning, and missed mediation. Despite Pentagon’s assertion that Field had implicitly agreed to delay by consenting to amendments and participating in scheduling, the judge found that this did not amount to waiver or acquiescence.

Inordinate Delay

The court determined the delay—from 2010 to 2023—was inordinate and without sufficient justification. Pentagon’s litigation conduct showed no urgency, even after the joint venture litigation ended. Although some procedural steps were taken, crucial ones like questioning and mediation were repeatedly postponed or abandoned.

Significant Prejudice

The delay led to presumed and actual prejudice under Rule 4.31. Witnesses struggled to recall events, and essential documents were no longer available. Both Pentagon and Field suffered from degraded evidence, but it was Field who bore the burden of prejudice in defending the claim.

Legal Standards and Application

Judge Birkett applied key appellate guidance from Humphreys v Trebilcock, emphasizing that once inordinate and inexcusable delay is proven, prejudice is presumed unless rebutted. Pentagon failed to disprove this presumption. The judge also found that Field’s actions to facilitate litigation (e.g., procedural consents) did not negate its right to seek dismissal.

Outcome

The Court granted Field’s application and dismissed Pentagon’s claim entirely. Costs were awarded to Field, and enhanced costs would be determined if the parties could not agree. The court emphasized that while defendants must comply with litigation duties, they are not barred from seeking dismissal for delay.

Conclusion

The judgment highlights the consequences of prolonged litigation inactivity. Even where a party engages procedurally, excessive and unjustified delay—especially one exceeding a decade—can lead to the dismissal of claims due to presumed prejudice, reaffirming the principle that justice delayed can indeed be justice denied.