The burden of carrying an action forward falls mainly on the
plaintiff. In Alberta, if a plaintiff’s delay in bringing its
action to trial rises to the level of “inordinate” and
“inexcusable”, a Court may dismiss all or any part of
its claim. When assessing a plaintiff’s delay, however, the
Alberta Court of Appeal recently confirmed that it will also look
to the defendant’s role, if any, in delaying the action.
In Nova Pole International Inc. v Permasteel Construction
Ltd.1, the Court of Appeal dealt with whether
an action should be dismissed for delay where the plaintiff took
almost 11 years to bring it to trial. Despite the fact that the
Court found the plaintiff was the major contributor of the delay,
it decided not to dismiss the action for delay. The Court’s
decision rested on the fact that the defendant had played a small
role in delaying the trial of the action, which was enough to
excuse the plaintiff’s otherwise lengthy delay.
