The court found insufficient prejudice to justify dismissal
The Alberta Court of King's Bench refused to dismiss a personal injury action for delay, ruling the delay inordinate but not inexcusable and finding insufficient prejudice to justify dismissal.
The dispute in Segovia v McCarrick, 2024 ABKB 431 stemmed from a motor vehicle collision on April 18, 2011, with the lawsuit initiated on March 15, 2013. The defendants filed a statement of defence on March 4, 2015, marking the beginning of the period under scrutiny, which spanned eight years and five months.
The delay in this case is compounded by the plaintiff’s involvement in four subsequent automobile accidents, three of which led to litigation. Determining the contribution of each accident to the plaintiff's injuries is complex. Cross-examinations and attempts at mediation occurred, but the defendants faced difficulties scheduling Independent medical exams due to date errors and the plaintiff’s inability to endure long examinations.
Despite finding minimal contribution to the delay from the defendants, the court noted periods when the defendants seemed content with delays until the plaintiff refused to attend medical examinations. The court identified the subsequent collisions and related litigation as the primary causes of delay, not attributable to either party.
The Court of King’s Bench deemed the delay inordinate but not inexcusable. The defendants argued that the delay caused significant prejudice, particularly concerning witnesses' memories and the loss of the plaintiff's pre-accident medical records. However, the court found that liability evidence, including witness memories and statements, was largely intact. The court also noted that the missing medical records were likely unavailable by the time they were requested.
The defendants further alleged prejudice due to the plaintiff's failure to produce certain medical records. However, the court found these records had been produced, thus negating claims of significant prejudice.
Ultimately, the court concluded that the defendants had not suffered sufficient prejudice to justify dismissing the action. However, the court criticized the plaintiff for being uncooperative in prosecuting her claim and emphasized the need for better cooperation. The court denied the application to dismiss.
