Nature of Litigation: Ongoing dispute since 2010 involving WestJet’s claim and ELS’ counterclaim.

Key Issues:

• WestJet sought dismissal of ELS' counterclaim due to inordinate and inexcusable delay (Rule 4.31) and/or non-compliance in producing documents (Rule 3.68(4)).
• ELS countered with a request for a litigation plan to proceed to trial.

Court's Analysis:

1. Rule 4.31 (Delay):

   • The Court assessed whether the delay was inordinate, inexcusable, and resulted in significant prejudice.
   • ELS’ counterclaim was reinstated in 2014 after an appeal, but numerous delays followed, including failure to produce documents, adjournments, and changes in counsel.
   • The Court found inordinate delay spanning over a decade, with minimal progress towards trial readiness.
   • ELS’ reasons (procedural disputes, change of counsel, and COVID-19 impact) did not justify the extensive delays.

2. Prejudice to WestJet:

   • The delay led to potential loss of relevant evidence and fading witness memories, making it difficult for WestJet to defend against ELS’ $52 million damages claim.
   • The presumption of significant prejudice due to inordinate delay was not rebutted by ELS.

3. Outcome:

   • The Court dismissed ELS' counterclaim under Rule 4.31 due to prolonged, unjustifiable delays.
   • ELS’ application for a litigation plan was denied as moot.

Conclusion: WestJet succeeded in having the counterclaim dismissed. The Court emphasized the detrimental impact of litigation delays on the parties and the legal system. WestJet was awarded costs, with a provision for written submissions on costs if the parties could not agree. No specific amount was provided.