Demand for advance information doesn't justify four-year delay in filing statement of defence: court

The Court of Appeal of Alberta has ruled that the Crown need not wait for a demand for advance information to be supplied before filing a statement of defense, allowing a case delayed for over a decade to proceed to trial.

In Song v Her Majesty the Queen in Right of Alberta, 2021 ABCA 361, the appellant, Alexander Song, was attacked by another inmate while incarcerated and awaiting trial for murder. Song suffered traumatic injuries and his guardians commenced an action against the Crown, claiming negligence in its duty of care.

More than ten years later, the Crown brought an application before a Master to strike the statement of claim for delay, which was dismissed. The Crown appealed the dismissal before a chambers judge who allowed the appeal and dismissed the action for delay. By the time the chambers judge issued her decision, the judicial dispute resolution and the trial had already been scheduled.

On appeal, the appellant argued that the chambers judge made reviewable errors in failing to assess the Crown’s role in the delay and failing to consider the delay was caused by events outside of the appellant’s control.

Both parties agreed that the delay was inordinate. However, the appellant’s arguments persuaded the Court, which allowed the case to continue to trial.

The Court ruled as erroneous the Crown’s assertion that “it was not obliged to file a statement of defence until after it received the response to the demand for advance information.” The standard of disclosure set forth in the Proceedings Against the Crown Act, RSA 2000, c P-25, should not be higher than that required by the Rules of Court, and a properly drafted Claim will almost invariable meet this standard, said the Court. The Demand did not justify any delay in the filing of the statement of defence, which in this case was almost four years, it added.

Further, the Court found that other delays were caused by events outside the appellant’s control. The 15-month delay in obtaining the EPS investigative file was attributable to both the inadvertence of the Crown in misplacing the draft consent order and the appellant’s failure to use other means to obtain them, said the Court. The delay in procuring the standard of care expert report was also excusable, since the first expert retained by the appellant had been diagnosed with and was receiving treatment for cancer and could not prepare the report, said the Court.

Finally, the Court found that there was already a schedule for the judicial dispute resolution and trial, but due to the chamber judge’s decision, both were cancelled. Had this been raised, it might have proved a compelling reason not to dismiss the action for delay, said the Court.

C.J. Mohr of Witten LLP appeared for the appellants, and F.H. Chiu and J.M. Dube of the Solicitor General appeared for the respondents.