Recycling Worx Solutions Inc v Hunter, 2023 ABKB 51

Court of King’s Bench of Alberta Citation: Recycling Worx Solutions Inc v Hunter, 2023 ABKB 51 Date: 20230127 Docket: 1301 05335 Registry: Calgary Between: Recycling Worx Solutions Inc. Plaintiff/Defendant by Counterclaim - and - Darren Hunter and 1725647 Alberta Ltd. Defendants/Plaintiffs by Counterclaim _______________________________________________________ Reasons for Decision of the Honourable Justice M.A. Marion _______________________________________________________ I.

Introduction [ 1 ] This application is the latest in an ongoing dispute that Darren Hunter and his corporation (together, Hunter ) have with Recycling Works Solutions Inc ( RWSI ). Hunter had a short, one-month relationship with RWSI where Hunter transported steel containers to and from residential construction sites. The relationship ended after Hunter alleged that RWSI required him to operate contrary to occupational health and safety and traffic laws, among other things. [ 2 ] The short business relationship has since been replaced with an over 9-year litigation relationship.

It is alleged that Hunter expressed concerns about RWSI and its customers publicly through various means, including through signs, document packages, picketing, public statements, email and online websites.

So far, there has been interim and interlocutory injunctive relief against Hunter, Hunter’s appeal of that relief (later abandoned), Hunter’s intervening bankruptcy, partially completed contempt proceedings and related sentencing in respect of Hunter’s breaches and alleged breaches of the interlocutory injunction, amendments to the Statement of Claim to update and refresh it to include additional allegations of contempt for breach of the interlocutory injunction, and then, most recently, two applications to dismiss the Action for delay. [ 3 ] However, RWSI’s underlying claim for a permanent injunction and damages (originally filed in 2013) and its ongoing contempt proceedings (commenced in 2015 and partially completed in 2018), have never gone to trial despite orders, directions and comments by judges of this Court to move these matters to trial. [ 4 ] Further, despite the Court expressly directing the parties to agree to a litigation plan and giving both parties leave to apply for a procedural order to set a litigation plan if they cannot agree, neither party has done so.

Instead, Hunter seeks to dismiss the action under rule 4.31 of the Alberta Rules of Court , Alta Reg 124/2010 for the second time. Alternatively, Hunter seeks to set aside the interlocutory injunction that has been extant for over 9 years. [ 5 ] For the reasons set out below, and with some reluctance, Hunter’s application is denied. On its current trajectory, the merits of the underlying dispute will never be resolved. A mandatory procedural order to get the parties to trial on the merits of the Action is

appropriate to avoid further delay and to bring this matter to conclusion. II. Background Facts [ 6 ] A

summary of the lengthy history of this matter puts Hunter’s application ( Application ) into context. A. The Initial Dispute [ 7 ] In Recycling Worx Solutions Inc v Hunter , 2018 ABQB 395 [ Recycling Worx ], Justice Eamon summarized the background to the initial dispute, which stemmed from the one-month business relationship, as follows at paras 3-10: [3] The Plaintiff is in the business of providing services to various homebuilders in and around the city of Calgary, and the towns of Airdrie and Chestermere, Alberta.

The Plaintiffs’ customers include the following builder customers: Mattamy, Ovation and Nu Vista. [4] The Respondent, together with a numbered company associated with him, entered into an independent contractor agreement, a lease agreement and a license agreement, with the Plaintiff, under which he and the company were to deliver and retrieve refuse/garbage containers for residential construction sites for various builder customers of the Plaintiff. [5] The contracts did not last long. The Defendants worked under them for approximately one month. Disputes arose, leading to the termination of the contracts.

Each party alleges the other breached the contracts. [6] The Plaintiff alleged that shortly after the dispute arose Mr Hunter started a public vendetta of protesting, picketing and harassing the Plaintiff and its builder customers, with the object of pressuring the Plaintiff into a settlement. [7] The Plaintiff points to a hand written letter from Mr Hunter, which it says is a threat that the Plaintiff either settle with him under a “gag” order or he would pursue his claims and complaints to government authorities. [8] Consequently, the Plaintiff commenced an action on May 2, 2013, seeking interim and permanent injunctions to protect its business relationships with its builder customers, damages for defamation and interference with business relations, and remedies pursuant to the agreements. [9] The Respondent’s Statement of Defence alleges, among other things, that he was forced to work in dangerous conditions or in violation of occupational health and safety legislation and therefore was justified in terminating the contract.

He admitted to picketing the plaintiff’s place of business and other areas, distributing written materials to passersby who expressed an interest, distributing written materials at show homes explaining his presence, and advising the Plaintiff of breaches of the Occupational Health and Safety Act and the Traffic Safety Act . He denied that any action taken by him constituted extortion, defamation, harassment, or interference with business relations. [10] None of the allegations have been heard in a trial or finally determined. B.

The Statement of Claim and Injunctive Relief [ 8 ] RWSI filed its Statement of Claim in May 2013, seeking an injunction restraining Hunter from being within one kilometre of RWSI’s place of business or RWSI’s builder customers’ show homes and work sites. On May 7, 2013, Justice Anderson granted an interim interim injunction pending a further hearing in June 2013. [ 9 ] On June 14, 2013, Justice Anderson granted an interim injunction pending the hearing of a special application which was scheduled for November 2013 ( June 2013 Order ).

The interim injunction revised the injunctive relief to prohibit picketing within one kilometre of certain show homes. [ 10 ] On August 7, 2013, RWSI filed an application for a declaration of and punishment for civil contempt for breach of the June 2013 Order, for a permanent injunction, and to vary the June 2013 Order. [ 11 ] On August 15, 2013, Hunter filed his Statement of Defence and a Counterclaim. [ 12 ] On August 19, 2013, Justice Anderson varied the June 2013 Order to expand its scope.

The August 19, 2013 order ( Injunction Order ) also added a police enforcement clause, cancelled the scheduled November 2013 special application, directed the matter to go to trial, and adjourned RWSI’s application for contempt of court. [ 13 ] Hunter sought to appeal the interlocutory Injunction Order, and he applied for an extension of the time to appeal. On November 20, 2013, Martin, J.A. granted him leave to extend time to allow him to appeal the Injunction Order ( November 2013 Order ), on conditions, as set out in para 23 of Recycling Worx : 2. Conditions of said leave are as follows: (

a) That Darren Hunter follow the spirit as well as the letter of the order of the Honourable Justice C. S. Anderson; (

b) That Darren Hunter take down the website that protests against Mattamy Homes within 24 hours and that no similar websites are undertaken; (

c) That Darren Hunter will cease to distribute and cease to instruct any party to distribute all literature associated with his

complaints against [the Plaintiff] and its builder customers; (

d) That all complaints to Occupational Health and Safety regarding the [Plaintiff] and its builder customers cease; (

e) That Darren Hunter cease to attend at the worksites of the [Plaintiff’s] builder customers; (

f) That Darren Hunter cease to take photographs of the employees and sub-trades of the [Plaintiff’s] builder customers; (

g) That Darren Hunter pay the costs of the [Plaintiff] for this application in the sum of $2000 payable forthwith, and no later than 14 days; (

h) That Darren Hunter file his notice of appeal no later than 14 days from the date of this Order. [ 14 ] Hunter filed his Notice of Appeal, but it was struck in February 2014, and then deemed abandoned in July 2014. No appeal of the Injunction Order was ever heard. C. Hunter’s Arrest and Leave to Commence Contempt Proceedings [ 15 ] On February 28, 2014, Hunter was arrested for allegedly breaching the Injunction Order and the November 2013 Order. He was released by Justice Poelman on March 3, 2014.

Justice Poelman granted RWSI leave to bring an application to establish the nature and extent of Hunter’s breaches of the order and the effect they have had on RWSI: Recycling Worx at para 26 . [ 16 ] In August 2014, RWSI filed an Amended Statement of Claim to include new allegations against Hunter up to August 2014 and to revise the relief sought to include a permanent injunction consistent with the Injunction Order, among other things. D. Hunter’s Bankruptcy [ 17 ] Hunter became bankrupt in September 2014 and was discharged on June 16, 2015.

Following that, Hunter allegedly started breaching the Injunction Order again. E.

The Contempt Proceedings [ 18 ] In November 2015, RWSI filed an application ( Contempt Application ) seeking a declaration and punishment for contempt, leave of the court to continue the action to trial, an order striking Hunter’s pleadings and directing the matter to a trial for an assessment of damages, and a declaration that Hunter’s discharge from bankruptcy did not discharge his debts to RWSI. [ 19 ] Through 2016 and 2017, the parties appeared to be focussed on questioning and other matters preparatory to the Contempt Application. It was adjourned several times.

RWSI filed updated affidavits with evidence of further alleged breaches of the Injunction Order and the November 2013 Order, which post-dated the breaches that were alleged at the time Contempt Application was filed. Ultimately, Justice Eamon heard the Contempt Application in a one-day special application in March 2018, which resulted in a May 2018 order ( Contempt Order ) supported by his extensive reasons in Recycling Worx . By at least February 2018, Hunter took the position that the Action was over as a result of his bankruptcy. [ 20 ] The Contempt Order provided, among other things: (

a) Hunter was declared to be in contempt of court on four counts of breaching the Injunction Order, with a sanction hearing to be scheduled before Justice Eamon; (

b) Neither RWSI’s Contempt Application nor its claim to a permanent injunction were discharged by Hunter’s bankruptcy; and (

c) The balance of the contempt allegations were referred to trial with the direction to “promptly

schedule a trial date”. [ 21 ] Hunter appealed and RWSI cross-appealed the May 2018 Order. Both appeals were abandoned in July 2018. [ 22 ] In June 2018, RWSI filed a further Amended Amended Statement of Claim. This amendment updated the claim to include further allegations against Hunter, including alleged breaches of the Injunction Order and the November 2013 Order.

It was not clear whether Hunter’s consent to the amendment was obtained prior to its filing, however, Hunter has never appealed it or filed an application to have the Amended Amended Statement of Claim struck or set aside. [ 23 ] In October 2018, RWSI filed an affidavit alleging that Hunter, since the May 2018 Order, continued to be in breach of the Injunction Order. [ 24 ] In December 2018, Justice Eamon heard the sanction hearing for the four counts of contempt.

In his order ( Sentencing Order ), Justice Eamon fined Hunter $2,000 for three counts and suspended the sentence for the fourth count for two years, upon a number of conditions including compliance with the Injunction Order. He ordered Hunter to pay 50% of RWSI’s solicitor-client costs reasonably incurred in prosecuting the contempt application. [ 25 ] In his reasons, Justice Eamon reminded the parties of their obligations to move the underlying dispute and the remaining contempt proceedings to trial. F. Hunter’s 2019 Application to Dismiss

[ 26 ] On April 15, 2019, RWSI filed a Statement of Defence to Hunter’s Counterclaim, and on April 24, 2019, RWSI filed its Affidavit of Records. [ 27 ] On April 25, 2019, Hunter filed an application ( 2019 Application ) seeking to strike, dismiss or stay the Action pursuant to rules 4.31 and 4.33, or alternatively to partially dismiss or stay certain aspects of the Action. As part of his application, Hunter argued that the principles of R v Jordan , 2016 SCC 27 should apply to civil contempt proceedings.

He also argued that if the Action was not stayed or struck, then it should be “set down for trial at the earliest reasonable time...”. [ 28 ] In June 2019, the costs awarded in the December 2018 Order were assessed by a Review and Assessment Officer in the amount of $84,522.47. This amount has not been repaid. [ 29 ] On September 18, 2019, Justice Eamon heard Hunter’s dismissal application.

RWSI argued that Hunter could have no audience before the Court because he had not yet paid the fine levied against him or the costs awarded to RWSI, that any delay was caused by Hunter’s refusal to comply with court orders, and that Hunter had not established any prejudice. Like Hunter, RWSI argued that a procedural order should be granted to enable the parties to achieve a trial date in a reasonable time. [ 30 ] Justice Eamon dismissed Hunter’s application with oral reasons. He found that rule 4.33 was not engaged as 3 or more years had not passed without a significant advance in the action.

With respect to rule 4.31, Justice Eamon found that the cumulative delay in the Action was not inordinate and inexcusable, that any delay that flowed from Hunter’s refusal to abide by the court’s orders was attributable to Hunter, and that Hunter had not provided evidence of any prejudice. He deferred the question of whether certain of the contempt proceedings should be stayed pursuant to Jordan pending further submissions of the parties. [ 31 ] Justice Eamon held that the proper approach was to grant a litigation order. He was inclined to set a litigation plan with dates to complete the steps. He noted that the

schedule proposed by RWSI was reasonable, although the matter was not yet ready to be set down for trial. After hearing submissions of the parties, Justice Eamon directed the parties to take three weeks to attempt to agree to the litigation plan, and if they could not agree they should book a time with him to set a litigation plan.

While Justice Eamon’s comments indicate his clear intention that the parties would come back to him to set the litigation plan if they could not agree, his September 18, 2019 order ( 2019 Order ) left it to the parties to reach agreement or, failing agreement, to “apply to the Court to set such a plan”. G. Post 2019 Order and the 2021 Rule 4.31 Application [ 32 ] The 2019 Order was not appealed. The parties did not reach an agreement on the litigation plan by October 2, 2019, as contemplated by the 2019 Order.

Neither party applied to have the court set a litigation plan. [ 33 ] Hunter provided his Affidavit of Records in December 2019 and the parties exchanged producible records. There were attempts in late 2019 and into March 2020 to

schedule questioning, but RWSI’s counsel ultimately failed to confirm dates his clients were available and then the idea of questioning was not discussed further. The COVID-19 pandemic arrived. [ 34 ] By April 2020, the parties’ focus appears to have drifted away from moving the Action forward. RWSI noticed Hunter taking steps RWSI alleged were contrary to the Injunction Order and wrote letters asking him to stop.

RWSI has not filed an application to revisit the December 2018 Order on sentencing in light of its allegations that Hunter has breached Court Orders or the conditions of the suspended sentence. [ 35 ] On October 6, 2021, Hunter filed the Application. It appears that nothing has happened in the litigation pending this Application. [ 36 ] On November 4, 2021, in response to the Application, RWSI filed a November 4, 2021 Affidavit of Mark Jette ( 2021 RWSI Affidavit ). Hunter did not question on this affidavit. III. Issues [ 37 ] The issues in this application are: (

a) Does or should Hunter have an audience with the Court to bring the Application? (

b) Should the Action be dismissed pursuant to rule 4.31(1)(a)? (

c) If the Action is not dismissed pursuant to rule 4.31(1)(a), should the Injunction Order be set aside? (

d) If the Action is not dismissed pursuant to rule 4.31(1)(a), should a procedural order be granted? IV. Analysis A. Does or Should Hunter Have an Audience with the Court to Bring the Application? [ 38 ] RWSI opposes Hunter’s Application on the basis that Hunter is in contempt of court and should have no audience with the court while he is in contempt.

[ 39 ] Citizens have a constitutional right to bring their claims before courts: Jacobs v McElhanney Land Services , 2019 ABCA 220 at para 64 , leave to appeal to SCC refused, 38939 (16 April 2020) [ Jacobs ]. However, this right is not absolute, as is inherent in rules 4.31 and 4.33, which allow or mandate dismissal of claims due to delay.

Further, courts clearly have discretion to refuse to assist, to grant an audience or relief to, or to entertain an application by, a person in contempt of court: EF v JS , 1995 ABCA 175 at paras 9-11 ; Phillips v Avena , 2005 ABCA 405 at para 14 ; Horrey v Litterst , 1995 ABCA 228 at para 15 ; Schmidt v Wood , 2012 ABCA 235 at para 5 .

Refusing to hear a party should not be granted lightly, and is a step the court should take, as a matter of public policy, when the contempt itself impedes the course of justice and there are no other effective means of securing compliance: EF v JS at para 10, citing Hadkinson v Hadkinson , [1952] 2 TLR 416 at 424 (UK CA) . [ 40 ] In the May 2018 Contempt Order, Justice Eamon found Hunter to be in contempt on four counts based on breach of the Injunction Order prior to December 31, 2015.

He directed 6 other pre-December 31, 2015 alleged incidents, and all post-December 31, 2015 alleged incidents existing at that time (together, the Remaining Contempt Claims ) to trial: Recycling Worx at paras 73, 191-192 . The Remaining Contempt Claims have not been set for trial, and it appears that no steps have been taken to ready them for trial. Accordingly, there is no extant contempt finding in respect of them. [ 41 ] With respect to the four counts where he found Hunter in contempt, Justice Eamon sentenced Hunter to pay a $2,000 fine for the first three counts.

With respect to the fourth count, Justice Eamon suspended sentence for two years pending certain conditions (including complying with the Injunction Order) and ordered that, in the event Hunter breached the conditions of his suspension, the suspension will cease on the fourth count and he will be sentenced by Justice Eamon. [ 42 ] At the time of the 2019 Order, Hunter had not paid the $2,000 fine. RWSI made a similar argument at that time that Hunter should not be given an audience before the court to apply to dismiss the Action pursuant to rule 4.31.

Justice Eamon exercised his discretion to entertain Hunter’s application and to hear it on its merits. [ 43 ] By the time of the Application before me, Hunter had paid the $2,000 fine. While he continues to owe RWSI costs, an order to pay money is not a basis to declare someone in contempt of court: rule 10.52(3)(a)(i). [ 44 ] RWSI filed an affidavit in response to this Application detailing what it asserts are ongoing breaches of the Injunction Order in 2020 and 2021.

However, RWSI has not brought any proceedings to prove a breach of the Sentencing Order conditions or to have Justice Eamon proceed to sentencing on the fourth contempt count. Further, RWSI has not filed an application to declare Hunter in contempt of court pursuant to rule 10.52 in respect of any new allegations of contempt not already covered by Justice Eamon’s Contempt Order.

In particular, RWSI has not filed a contempt application in respect of Hunter’s 2020 or later conduct. [ 45 ] At present, there are no outstanding contempt findings to say that Hunter is presently in contempt of court that has not been purged. This may not be determinative as to whether Hunter’s application should not be entertained. I note Justice Eamon’s finding of a “significant risk that Mr. Hunter will continue to breach the [Injunction Order], or subverting it in ways designed to obstruct the course to justice by thwarting or attempting to thwart the order”: Recycling Worx at para 90 .

As noted, there was no questioning on the 2021 RWSI Affidavit, and it is possible that it justifies a further contempt proceeding to determine if Hunter is in further contempt of the Injunction Order or the Sentencing Order. [ 46 ] However, in all of the circumstances, in my view it is not appropriate for me to comment further as to whether Hunter has been in further contempt of the court’s orders since May 2018, including based on at least the following: (1) the lack of a further contempt application; (2) the required elements to prove civil contempt on a beyond reasonable doubt standard: Recycling Worx at paras 57-58 ; (3) the serious consequences to Hunter of another contempt finding; (4) the current state of the record in relation to the 2020- 2021 allegations, including a lack of evidence from Hunter; (5) the potential interrelationship between some of the 2020-2021 conduct and the contempt allegations that Justice Eamon directed to trial; (6) the potential application of Jordan to some of the allegations of contempt; and (7) the prospect that some of Hunter’s 2020 conduct may engage a breach of the Sentencing Order conditions which, if they can be heard at all at this point, must or should be heard before Justice Eamon given the terms of the Sentencing Order. [ 47 ] In all of these circumstances, without an extant finding of contempt, and having regard to the conduct of the Action since the 2019 Order, I decline to exercise my discretion to refuse to entertain Hunter’s application.

In my view it is fair and appropriate for Hunter’s Application to be heard and dealt with on its merits. B. Should the Action be Dismissed Pursuant to Rule 4.31(1)(a)? [ 48 ] Litigation delay is a problem that has plagued courts for centuries: Kuziw v Kucheran Estate , 2000 ABCA 226 at para 21 [ Kuziw ]; Blencoe v Human Rights Commission, 2000 SCC 44 at para 140 . The Alberta Court of Appeal has consistently, frequently, and with increasing urgency, sounded the alarm over litigation delay.

In the past few years alone, the Court of Appeal has confirmed that litigation delay remains a harmful, pressing concern and corrosive force that runs counter to the expeditious administration of justice and public confidence in the legal system: Humphreys v Trebilcock , 2017 ABCA 116 at para 90 [ Humphreys ], cited affirmatively in Morrison v Galvanic Applied Sciences Inc , 2019 ABCA 207 at para 9 [ Morrison ]; Jacobs at paras 57-72 ; Transamerica Life Canada v Oakwood Associates Advisory Group Ltd , 2019 ABCA 276 at para 14 [ Transamerica ]. [ 49 ] There is a universal recognition that dormant actions should be dealt with: Ursa Ventures Ltd v Edmonton (City) , 2016 ABCA 135 at para 112 .

While courts cannot control or remedy all things that contribute to litigation delay, courts can and must address delays attributable to the participants in the legal system (litigants, witnesses, experts, third parties and legal counsel, for example). [ 50 ] In addition to its inherent jurisdiction to control its process, the Rules provide courts powerful tools to monitor and remedy litigation delay.

As a policy, “Alberta does not want stalled actions on its litigation highway”; rules 4.31 and 4.33 take “dead aim” at either removing those stalled actions from the highway or giving them a boost to get them moving again: Jacobs at para 60 ; Morrison at para 9 ; Transamerica at para 14 . It is incumbent on courts to carefully employ these tools to properly balance the need to ameliorate litigation delay while at the same time not unduly infringing on a litigant’s right to have its claim heard. Courts must follow the Court of Appeal’s ongoing guidance.

[ 51 ] It is also incumbent on all litigation participants to do their part to avoid delay.

The Rules of Court impose obligations on all parties to advance an action, which include obligations to communicate honestly, openly and in a timely way (rule 1.2(2)(d)), to jointly and individually facilitate the quickest means of resolving the claim at the least expense (rule 1.2(3)(a)), to manage their dispute and plan for its resolution in a timely and cost effective way (rule 4.1), and to respond in a substantive way and within a reasonable time to any proposal for the conduct of an action (rule 4.2): Transamerica at paras 29, 34-35 , cited affirmatively in Song v Her Majesty the Queen in Right of Alberta , 2021 ABCA 361 at para 33 [ Song ]; Pillar Resource Services Inc v PrimeWest Energy Inc , 2017 ABCA 19 at para 136 [ Pillar Resource Services ].

These rules are directly linked to and relevant to applications under rule 4.31: Transamerica at paras 29- 30 ; 330626 Alberta Ltd v Ho & Laviolette Engineering Ltd , 2018 ABQB 398 at paras 68-69 ; Gammage v Costco Wholesale Canada Ltd , 2021 ABQB 514 at para 86 [ Gammage ]. As discussed further below, there are an increasing number of recognized situations where it is insufficient for a defendant to simply sit back and do nothing in the face of litigation delay. [ 52 ] Rule 4.31 provides: Application to deal with delay 4.31(1) If delay occurs in an action, on application the Court may (

a) dismiss all or any part of a claim if the Court determines that the delay has resulted in significant prejudice to a party, or (

b) make a procedural order or any other order provided for by these rules.

(2) Where, in determining an application under this rule, the Court finds that the delay in an action is inordinate and inexcusable, that delay is presumed to have resulted in significant prejudice to the party that brought the application.

(3) In determining whether to dismiss all or any part of a claim under this rule, or whether the delay is inordinate or inexcusable, the Court must consider whether the party that brought the application participated in or contributed to the delay. [ 53 ] In considering a rule 4.31 application, the core source legal principles remain the Rules of Court themselves: Transamerica at para 15 .

While certain helpful frameworks have been proposed in some cases, such as the six-step analysis set out in Humphreys at paras 20 and 150-156 , the Court of Appeal has confirmed that each action is different and subject to infinite and variable fact patterns, there are many different ways that the court can analyze a delay application, and there is no universal mandatory code or formulaic analysis: Transamerica at para 15 ; LDS v SCA , 2021 ABCA 59 at para 18 [ LDS ]; Cochrane (Town) v Austech Holdings Inc , 2022 ABCA 377 at para 23 [ Cochrane CA ].

Having said that, it can be an error if a court does not address issues of delay, inordinate delay, and inexcusable delay, before turning to the question of prejudice: Arbeau v Schulz , 2019 ABCA 204 at para 31 [ Arbeau ]. [ 54 ] I conclude that the most appropriate way to structure an analysis of Hunter’s rule 4.31 application in this case is to address these issues: (

a) Has Hunter established delay in the Action? (

b) Is any delay in the Action inordinate and inexcusable, such that Hunter can rely on the presumption of significant prejudice in rule 4.31(2)? (

c) Has delay in the Action resulted in significant prejudice to Hunter? (

d) Should the Court exercise its discretion to dismiss the Action under rule 4.31? 1. Has Hunter Established Delay in the Action? [ 55 ] One way of assessing whether there is delay is to consider whether the plaintiff failed to advance the action to the point on the litigation spectrum that a litigant acting reasonably would have attained within the time frame under review, having regard to the nature of the action and stipulated timelines in the Rules : Humphreys at paras 20, 150-156 ; Arbeau at para 33 .

However, this is not a scientific calculation, and the theoretical comparison of what point a reasonable litigant would have reached in any particular case is incapable of precise definition: Transamerica at para 20 ; Cochrane CA at para 25 .

Delay is usually incremental, and it is very difficult to fix the specific point at which the passage of time becomes “delay”: Royal Bank of Canada v Levy , 2020 ABCA 338 at para 23 [ Levy ]. [ 56 ] Ultimately, determining whether there has been a delay must be based on an “examination of the record, the submissions of counsel, and the experience of the judiciary”: Transamerica at para 22 , cited affirmatively in Cochrane CA at para 25 .

It requires a review of the entire action, not just segments of it, commencing with the filing of the claim and ending with the date of the rule 4.31 application: Cochrane CA at para 25 ; Arbeau at para 27 ; 4075447 Canada Inc v WM Fares & Associates Inc , 2020 ABCA 150 at para 14 [ 4075447 Canada ]. [ 57 ] The Action was filed in 2013, and there was a flurry of activity culminating in the Injunction Order in August 2013.

Since that time, most of the activity in the Action has been dealing with enforcement of the Injunction Order or other court orders through RWSI’s applications for contempt, on the one hand, and Hunter’s applications to dismiss the Action for delay, on the other hand. While there have been several affidavits filed, and cross-examinations conducted, neither side has advanced the initial dispute. Further, not much has happened since the 2019 Order. An Affidavit of Records has been provided and documents have been exchanged, but no questioning for discovery has taken place.

The matter is not ready for trial. [ 58 ] I have no hesitation in finding that there has been delay in the Action, and I do not interpret either party’s submissions as disputing that there has been delay. In these circumstances, the pertinent questions are whether the delay has been inordinate and inexcusable. 2. Is the Delay Inordinate and Inexcusable?

[ 59 ] The issue of whether the delay is inordinate and inexcusable is primarily relevant to whether the presumption of significant prejudice under rule 4.31(2) is engaged. While much of the background context and conduct of the parties will be relevant to both whether delay is inordinate and whether delay is inexcusable, the analytical framework and onus of proof are different for each. Accordingly, they are addressed separately below. a.

Has Hunter Established Inordinate Delay? [ 60 ] The onus is on Hunter to establish that the delay is inordinate: Kuziw at para 31 ; OmniArch Capital Corporation v Bishop , 2020 ABQB 102 at para 28 , aff’d 2020 ABCA 472 ; Willard v Compton Petroleum Corporation , 2015 ABQB 766 at para 56 . [ 61 ] There is no fixed test for determining whether delay is inordinate: Levy at para 14 .

It has been described as simply meaning delay that is much in excess of what was reasonable having regard to the nature of the issues in the action and the circumstances of the case: Levy at para 14 ; Transamerica at para 18 ; Kuziw at para 31 . It has also been said that if the difference between the actual progress of the action and the “norm” is so large as to be unreasonable or unjustifiable, then the delay is inordinate: Morrison at paras 11-12 ; Humphreys at paras 115-120 .

In my view, these are all different ways of asking the underlying question—is the length of the delay reasonable in the circumstances of the case? [ 62 ] As with determining whether delay exists, it can also be difficult to fix the specific point at which delay becomes “inordinate”: Levy at para 23 . Whether delay is inordinate is to be determined in light of all the circumstances of the case: Kuziw at para 30 ; Arbeau at para 36 ; Transamerica at para 18 ; LDS at para 18 . There is no presumptive time that must pass before delay is considered inordinate: Levy at para 14 .

The relevant circumstances should include the overall delay as well as gaps between steps: Levy at para 14 . [ 63 ] Defence delay is also relevant: Transamerica at para 28 ; Fraser v Jeffries , 2019 ABCA 368 at para 19 [ Fraser CA ]; Alston v Haywood Securities , 2020 ABQB 107 at para 44 [ Alston ].

Although rule 4.31(3) is not directly applicable to this application because it was added in 2022 after Hunter’s application was filed, it is consistent with previous jurisprudence and provides that in “determining whether to dismiss all or any part of a claim under this rule, or whether the delay is inordinate or inexcusable, the Court must consider whether the party that brought the application participated in or contributed to the delay.” [ 64 ] In addition to these principles, certain types of cases are of such a nature that they require more diligent prosecution, for example cases involving allegations of fraud or a comparable wrong: Humphreys at para 167 ; Arbeau at para 38 .

In those cases, due to the nature of the claim, a further lens is applied in determining whether delay is inordinate. Such cases must be prosecuted with “reasonable expedition”, which is something faster than non-fraud cases; any delay that is “not trivial or minor” is inordinate: Humphreys at para 167-168 .

Some King’s Bench decisions apply the “not trivial or minor” test for inordinate delay to non-fraud cases: see, for example: Fraser v Jeffries , 2019 ABQB 145 at para 43 , aff’d Fraser CA ; Déjà vu Holdings Ltd v Securex Master Limited Partnership , 2018 ABQB 597 at para 47 ; Gammage at para 99 ; Cochrane (Town) v Austech Holdings Inc , 2021 ABQB 666 at para 92 [ Cochrane QB ], aff’d Cochrane CA .

With respect, I believe Humphreys only intended that this test applies in special cases that warrant more expeditious prosecution, not in every case, because in fraud cases any non-trivial or non-minor delay would be unreasonable and, therefore, inordinate. [ 65 ] There may be other types of cases that warrant special consideration when evaluating whether delay is inordinate. In my view, the claims in this case have two aspects which require special consideration.

First, the Statement of Claim, as amended, expressly includes allegations of civil contempt of court, which is always quasi-criminal in nature, and can result in significant sentences, including imprisonment: Carey v Laiken , 2015 SCC 17 at para 42 ; Jonsson v Lymer , 2020 ABCA 167 at para 82 . Some Canadian courts have already applied the diligent prosecution concepts of Jordan to civil contempt proceedings: Prime Investment Corporation Ltd v Fiorini , 2019 ONSC 2015 at paras 8-11 ; St-Amour c Major , 2017 QCCS 2352 at paras 43-44 .

The application of Jordan to the contempt allegations in this case is not directly before me, was not argued, and was deferred in the 2019 Order pending further submissions on that issue. Those submissions have never been made. On this application, I do not need to decide whether Jordan applies to civil contempt proceedings in Alberta, because in my view, given the serious, quasi-criminal consequences of civil contempt claims, contempt claims should be prosecuted diligently and more quickly than other proceedings, much like fraud claims.

The assessment of delay inordinacy must be viewed through this more rigorous lens requiring greater prosecution speed. [ 66 ] The second aspect of the nature of the claim that warrants special consideration is the interlocutory Injunction Order that was put in place pending trial.

A party obtaining an interlocutory injunction or restraining order pending trial is under an obligation to diligently take the matter to trial or final resolution: Tsuu T’ina Nation Band v Fraser , 2001 ABCA 109 at para 8 [ Tsuu T’ina ]; Alberta (Minister of Justice and Attorney General) v McNair , 2018 ABQB 314 at para 33 [ McNair ]; IGM Resources Corp v 979708 Alberta Ltd , 2004 ABQB 925 at para 26 [ IGM Resources ]; 1516089 Ontario Inc et al v Dr Howard Jacobs et al , 2011 ONSC 2077 at para 14 [ 1516089 Ontario ].

It has been described as an “enhanced obligation” or “greater burden” to advance its claim with a “degree of alacrity” and “expeditiously”: American Environmental Container Corp v Kennedy , 2020 ONSC 1662 at para 42 [ American Environmental Container ]; Simonelli v Ayron Developments Inc , 2010 ABQB 565 at para 169 [ Simonelli ]; 1483860 Ontario Inc (Plan IT Search) v Beaudoin , 2015 ONSC 641 at para 77 [ 1483860 Ontario ]. Expediting the litigation may mean doing more than merely complying with the Rules of Court : Guillevin International Co v Barry , 2022 ABQB 26 at para 25 .

One of the reasons for the elevated duty of expeditiousness on prosecuting injunction actions is to limit as far as possible the period during which the defendant’s liberty is restricted without there having been any determination on the merits: 1516089 Ontario at para 14. [ 67 ] In my view, RWSI is and has been under a heightened obligation to pursue the Action expeditiously given the Injunction Order, and this is another relevant lens through which to assess whether the delay is inordinate. [ 68 ] There is another unique aspect of this rule 4.31 application: it is the second time that Hunter has sought to dismiss the Action pursuant to rule 4.31.

Justice Eamon dismissed the first application in the 2019 Order and made findings in doing so. The 2019 Order was not appealed, and this raises the doctrine of issue estoppel regarding Justice Eamon’s findings: Danyluk v Ainsworth Technologies Inc , 2001 SCC 44 at paras 24-25 ; Thai v Kernick , 2021 ABCA 236 at paras 20-21 . [ 69 ] In dismissing Hunter’s 2019 rule 4.31 application Justice Eamon’s oral reasons included these findings in respect of whether

the delay was inordinate: In this particular case, I would not regard the delay as inordinate. The plaintiff was faced with a litigant who obviously was showing an intention that he would not abide by the rules and requirements of the Court. He was not going to cooperate in the litigation, he was bound to continue his vendetta against the plaintiff. And under those circumstances, as I say, it was totally justifiable to proceed to get the interim injunction under control. [...] The delay I would find is not inordinate either during the bankruptcy period or outside the bankruptcy period.

I think when they were faced with bankruptcy, it would have been justifiable to wait and see for a period of time in the circumstances where it would be questionable that they would receive a financial outcome in the litigation. And also, he appears to have stopped his conduct. [ 70 ] In effect, Justice Eamon held that the delay up to April 25, 2019 (the date Hunter filed his 2019 Application) was not inordinate and these findings are binding on the parties in the sense that, as of April 2019, the delay was not inordinate.

While this means that the focus of my inquiry will be post-April 2019 delay, it does not mean that I ignore the delay up to April 2019. I am still required to look at the overall cumulative delay and the gaps in steps along the way: Levy at para 14 .

A similar approach has been used in another case that involved successive dismissal for delay applications: Ralph’s Auto Supply (BC) Ltd v Ken Ransford Holdings Ltd , 2020 BCCA 120 at paras 38-42 [ Ralph’s Auto Supply ]. [ 71 ] Even though there was a finding of no inordinate delay for the first 6 years of the Action, at the time of Hunter’s 2021 application the Action was over 8 ½ years old. Further, during this entire period, RWSI has been under an enhanced obligation to pursue the matter to trial given the Injunction Order and the contempt claims.

RWSI’s duty to diligently prosecute to trial was emphasized by the court in the Action several times, including as follows: (

a) in 2013, Justice Anderson directed the matter to trial, which is unusual at such an early point in an Action—she clearly intended for the merits of the claim be resolved quickly; (

b) in May 2018, Justice Eamon expressly reminded RWSI of its obligation and directed the trial on the remaining contempt issues be scheduled promptly— it was also clear that Justice Eamon intended for all matters proceed to trial quickly: Recycling Worx at paras 205-206 ; (

c) in December 2018, Justice Eamon again reminded both parties of their obligations to move the Action along, suggested how they might do that, and urged the parties to “get on with your litigation, get a trial date booked so you have something to work towards, and get your dispute resolved”; (

d) in September 2019, in the context of dismissing Hunter’s first dismissal for delay application, Justice Eamon wanted to set deadlines for a procedural order, but acceded to the request of the parties to try to work out a litigation plan. In that process, he expressed to the parties his obvious contemplation that they would come back to him quickly to set a litigation plan if they could not agree. He provided the parties with his

schedule for the coming months and gave his preferred week. He said to counsel: “let’s try hard and use that week”. As earlier noted, the 2019 Order gave the parties leave to apply to set the litigation plan if they could not agree. [ 72 ] In this context, little occurred following the September 2019 Order. RWSI’s counsel provided a proposed litigation plan to Hunter’s counsel. Then, on October 1, 2019, Hunter’s counsel provided comments on the litigation plan. He proposed Hunter’s Affidavit of Records be provided by October 30, 2019.

On the litigation plan, Hunter’s position was effectively that he could not determine which witnesses were required for questioning or trial until it was determined which contempt allegations were stayed or dismissed, which in turn depended on the Jordan submissions deferred by Justice Eamon. Hunter’s counsel said: As I endeavoured to communicate to Justice Eamon, the issues for trial and the number of witnesses needed to be discovered on behalf of Darren Hunter will depend upon whether some or all of the contempt allegations are ultimately stayed or dismissed.

It therefore seems sensible to me (despite Justice Eamon’s deadline that a Litigation Plan be imposed by 2 October 2019) that finalizing that portion of the Litigation Plan would best await the result of the Jordan issue determination. [ 73 ] Notwithstanding this, Hunter’s counsel provided a list of 16 witnesses he wanted to question for discovery, including seven RWSI witnesses.

He advised that he expected to have his draft Jordan submissions to RWSI’s counsel that week. [ 74 ] RWSI’s counsel responded the same day agreeing to the October 30, 2019 date for Hunter’s Affidavit of Records, disagreeing that the Jordan issues affected questioning in the Action, disagreeing with some of the people that Hunter wanted to question, but agreeing to produce RWSI witnesses for questioning. On October 7, 2019, Hunter’s counsel provided his estimated time to question the RWSI witnesses and proposed questioning in mid-to-late November 2019.

RWSI’s counsel said he would check RWSI’s witness availability and suggested they may need to look to December 2019. [ 75 ] On October 18, 2019, RWSI’s counsel followed up with Hunter’s counsel regarding the litigation plan, and Hunter’s counsel indicated he was waiting to hear back from RWSI’s counsel on the availability of the RWSI witnesses. It does not appear that RWSI’s counsel responded. [ 76 ] On December 9 and 16, 2019, Hunter provided his Affidavit of Records and a USB stick with his records.

On December 13, 2019, RWSI provided a USB stick of RWSI’s records. [ 77 ] On January 7, 2020, RWSI’s counsel wrote to Hunter’s counsel suggesting the parties start with questioning of the principal parties, with questioning in January or February 2020. On January 21, 2020, Hunter’s counsel responded and provided Hunter’s availability for questioning in February and March 2020 and indicated the order he wished to question the first three RWSI witnesses. RWSI’s counsel did not respond, and Hunter’s counsel followed up on March 9, 2020 and advised they would now be looking at the last week of April or later.

[ 78 ] At this point, the trail to scheduling questioning went cold.

On March 30, 2020, the Minister of Justice and Solicitor General issued Ministerial Order 27/2020, which suspended limitation periods in a number of enactments from March 17, 2020 to June 1, 2020. [ 79 ] In April 2020, RWSI’s counsel wrote to Hunter’s counsel three times and advised that Hunter was again in breach of the Sentencing Order and the Injunction Order. [ 80 ] There is no evidence of any further correspondence or steps being taken in the Action following these letters, in the approximately 18 months which followed, before Hunter filed this Application. [ 81 ] Considering all of the circumstances, I conclude that Hunter has discharged the onus and established that there has been inordinate delay in the Action, both in terms of the steps from the 2019 Order until the October 2021 Application, but also within the context of the overall delay and the cumulative impact on the Action that had already been delayed for 6 years.

Although there were some initial efforts to move the Action along after the 2019 Order, they quickly dissipated and then disappeared, to be replaced again with RWSI’s focus on policing the court orders. The delay was unreasonable in all the circumstances. b. Is the Delay Excusable? [ 82 ] Once Hunter has established that the delay was inordinate, the next question is whether the delay was also inexcusable: Kuziw at para 37 .

This query involves assessing whether the non-moving party “accounted for the delay and does the explanation justify the pedestrian pace at which the action has been prosecuted?”: Morrison at para 13 . Until a credible excuse is made out, the natural inference is that inordinate delay is inexcusable: Arbeau at para 36 .

The onus to make out a credible excuse lies upon the delaying party: Kuziw at para 37 ; Primewest Energy v Texana Turbines Inc , 2016 ABQB 715 at para 149 ; Simpson v Canada (Attorney General) , 2015 ABQB 451 at para 19 . [ 83 ] As with assessing inordinate delay, the overall delay, and gaps between steps, are relevant in assessing whether delay is inexcusable: Levy at para 14 . [ 84 ] Plaintiffs often rely on matters beyond their control, which can provide an excuse for delay: Song at paras 47, 50 ; Gammage at para 117 . RWSI provides no evidence or argument to say that RWSI’s own delay is excusable.

Without more, RWSI’s delay would be inexcusable. [ 85 ] However, RWSI’s position is that any delay in this action is entirely excusable due to Hunter’s breaches and alleged breaches of the Injunction Order. RWSI’s position brings squarely into issue the role of Hunter’s conduct as providing a possible excuse for the delay in this action. [ 86 ] The conduct of the defendant is relevant in assessing the causes and impact of delay, and whether it is inexcusable: Levy at para 21 ; Transamerica at paras 27-28 .

Courts now routinely and carefully scrutinize the defendant’s conduct, including whether the defendant participated in, caused or contributed to the delay.

Here again, rule 4.31(3), while not directly applicable to this application, is consistent with the previous jurisprudence. [ 87 ] Some cases say that the onus is on the plaintiff to keep an action progressing and that a defendant “is not responsible for taking any steps or pushing the plaintiff to move the action” or to “hurry up the plaintiff”: Arbeau at para 37, citing Riviera Developments Inc v Midd Financial Corp , 2002 ABQB 954 at para 23 ; Owners Condominium Plan Calgary 8110301 v KJM Developments Ltd , 1991 ABCA 120 at para 3 .

However, more recent and other Court of Appeal decisions have confirmed that, while the plaintiff has the primary obligation in moving litigation forward, defendants still have obligations: Transamerica at para 27 ; Alderson v Wawanesa Life Insurance Company , 2020 ABCA 243 at para 22 [ Alderson ].

Defendants also have general obligations under rules 1.2(2)(d), 1.2(3)(a), 4.1 and 4.2, which create joint responsibility to move matters along: Transamerica at para 29 ; Song at para 33 ; Pillar Resource Services at para 136 ; Nova Pole International Inc v Permasteel Construction Ltd , 2020 ABCA 45 at para 25 [ Nova Pole ]. [ 88 ] There are numerous situations where a defendant may not be able to rely on delay in an application to dismiss for delay under rule 4.31 or, put another way, where the defendant’s conduct or failure to take steps may contribute to an excuse for the delay.

Each case depends on a review of all the circumstances, so there is no exhaustive list of relevant defendant conduct. However, the numerous decisions under rule 4.31 provide helpful guidance of the types of defendant conduct that will be scrutinized by courts and may provide an excuse for delay. Examples include: (

a) generally, where the defendant is responsible for or contributed to the delay, or part of it: Transamerica at para 27 ; Nova Pole at paras 25-39 ; 4075447 Canada at para 20; (

b) where the defendant fails to adhere to its own positive procedural obligations: Transamerica at para 30 ; Alderson at para 22 ; Song at para 41 . In my view, positive procedural obligations include those in the Rules and in court orders or procedural directions; (

c) where the defendant, while not having positive procedural obligations, fails to exercise its rights that are in its control and for its benefit: Transamerica at para 32 ; (

d) where there is a procedural dispute that causes or could contribute to the delay, and the defendant does not take steps to resolve the dispute: Transamerica at para 34 ; (

e) where the defendant proposes or causes delay by taking a position that other processes should or must be dealt with first, or refuses to proceed with the action unless certain steps are taken: Transamerica at para 36 ; Heikkila v Apex Land Corp , 2011 ABCA 87 at para 44 ; Nova Pole at paras 33, 39-40 ; Tiger Calcium Services Inc v Sazwan , 2019 ABQB 665 at paras 32 , 41-42 [ Tiger Calcium ]; and (

f) where the defendant acquiesces in the delay. However, assessing acquiescence must be done with care, given that the

primary obligation to move the action along lies with the plaintiff, and the defendant is entitled to let “sleeping dogs lie” in some circumstances. Silence alone does not amount to acquiescence: Cochrane CA at para 35 ; Flock v Flock Estate , 2017 ABCA 67 at para 22 , leave to appeal to SCC refused, 37552 (19 October 2017); Altex International Heat Exchanger Ltd v Foster Wheeler Limited , 2018 ABQB 620 at para 67 . Participation in a step in the litigation, or the failure to expressly indicate that a defendant is proceeding “without prejudice” is not necessarily acquiescence: Levy at para 23 .

A party has no duty to expressly advise that they do not agree to delay: Cochrane QB at para 152 ; Flock at para 24 . However, on the other hand, a defendant’s failure to press the litigation may strengthen a finding that the delay is excusable: Fraser CA at paras 12, 19 . Further, where the defendant participates in a culture of complacency, they can be jointly responsible for the delay, which can then be excusable: Song at para 43 . [ 89 ] In dismissing Hunter’s first delay application, Justice Eamon stated that it was “totally justifiable to proceed to get the interim injunction under control”.

He also made these comments and findings in making the 2019 Order: Was the delay excusable? For similar reasons as provided earlier, during the periods when Mr. Hunter was not in bankruptcy if it were unreasonable or inordinate, in my view it would have been excusable to focus on the enforcement of the order which they had put so much effort into obtaining to protect their company from irreparable harm. So if there was an error here, I would excuse it. There is nothing to indicate that the plaintiff itself did not wish to pursue its litigation.

It seems to have been an error in understanding its obligations and I would excuse it because they were faced with the situation that they were in. During the bankruptcy period, I would consider the delay not to be excusable, it should have gone to deal with the bankruptcy as I have indicated.

Another way of looking at whether the delay is excusable or reasonable is to look at it as defence delay which is suggested by the Court of Appeal in Transamerica at paragraph 28 where they seem to accept the statement of the respondent or the submission of the respondent that: Defence delay is sometimes considered in deciding if the delay is “inordinate”, sometimes in examining whether it is “excusable”, and sometimes when the court is exercising its ultimate discretion. In my view, the plaintiff was faced with a highly unusual circumstance where Mr.

Hunter appeared not to be prepared to abide by interim injunctions granted by the Court and I would characterize any delay that flowed from that as being attributable or rightly attributable to Mr. Hunter. If there were some errors made here by the plaintiff in the speed at which they prosecuted their litigation apart from the period of bankruptcy, these were really something that Mr. Hunter brought upon himself and which he induced as far as I can tell. [ 90 ] Accordingly, Justice Eamon held in obiter that any delay up to April 25, 2019 was excusable.

While I must consider the entire action and all aspects of the delay, the focus of my inquiry will be whether the delay post-April 2019 is excusable: Levy at para 14 ; Ralph’s Auto Supply at paras 38-42. [ 91 ] As noted earlier, RWSI points almost exclusively at Hunter’s breach of the Injunction Order, and the need to enforce that order, to justify its delay. While this was enough to satisfy Justice Eamon in September 2019, in my view it was no longer enough by the time Hunter filed this Application two years later in October 2021.

RWSI cannot legitimately argue that it was focused on enforcing the Injunction Order between September 2019 and October 2021. It was not. RWSI took no steps to advance the Remaining Contempt Claims that Justice Eamon had directed to trial in the May 2018 Order or any new contempt claims that were added in the October 2018 amendment to the Statement of Claim. All it did was write three letters in April 2020 alleging that Hunter was again in breach of the Injunction Order. RWSI brought no application for contempt in respect of these alleged new breaches of the Injunction Order.

I find that Hunter’s alleged breaches of the Injunction Order do not provide an excuse for the delay in this action after April 2019. [ 92 ] But this does not end the analysis. In my view, Hunter’s other conduct establishes his joint responsibility and contribution for the delay from April 2019 to October 2021. [ 93 ] First, in September 2019, Justice Eamon was keen to put a litigation plan in place. It was Hunter that suggested delaying the litigation plan: THE COURT: At this point, my inclination is to simply direct that the parties are subject to a litigation plan. The one as

schedule A to the order proposed by the plaintiff under tab 10 of the brief, apart from the first step, which is to book a trial appears to be reasonable except the date to submit Form 37 needs to be modified and it should probably say submit Form 37 or apply to a Judge for a trial under the Rules. Looking at this schedule, if the parties are prepared to abide by this schedule, and I have not heard from Mr.

Jadusingh as to these deadlines and I will, seems to me that after the additional undertaking responses which would be somewhere about six months from now might be an appropriate time, but we can discuss whether you should do that earlier. There is no harm getting in the cue as quickly as possible. What about these dates, Mr. Jadusingh? MR. JADUSINGH: Sir, on first glance they seem ambitious to me in the sense that neither side yet has, for example -- THE COURT: Okay. So, what do you want to propose? I want to get some dates here. What do you want to propose? MR.

JADUSINGH: Well, what I had proposed in my submissions in the main was that a deadline be set by which the parties can discuss this and come up with those dates. THE COURT: Well should you not be prepared today? You knew they wanted to ask for a litigation plan. [ 94 ] Hunter’s counsel then indicated that he felt it had been sensible to await the outcome of the 2019 Application before setting a litigation plan. He raised that Justice Eamon had not decided the Jordan aspect of his 2019 Application which might “whittle down the number ... and nature of the issues”.

At Hunter’s suggestion, Justice Eamon gave the parties a short amount of time to agree to a litigation plan, expecting they would come back to him quickly to set the litigation plan if they could not agree.

[ 95 ] Second, as noted earlier, in the ensuing negotiation of the litigation plan, Hunter again raised the Jordan issue, which he argued might cause some of the contempt proceedings to be stayed due to delay. He argued that the litigation plan should essentially be abandoned until the Jordan submissions were complete. He indicated that his Jordan submissions were forthcoming, but there is no evidence they were ever provided.

Having effectively derailed the negotiation of the litigation plan, Hunter then took absolutely no steps to bring his Jordan application before the Court. [ 96 ] Third, once it was obvious the parties could not agree on the litigation plan, Hunter took no steps to bring the matter before the court as expressly provided for in the 2019 Order. In my view, this is not a situation where Hunter could sit back and do nothing.

Hunter contributed to the delay in settling the litigation plan before Justice Eamon, then created a dispute over the litigation plan suggesting that his Jordan application should proceed first, and then did not take advantage of the procedures in place for his benefit to get the litigation plan settled. These facts engage many of the principles outlined above in paragraph 88 of these Reasons.

While RWSI’s delay in responding to setting questioning dates was unacceptable and unreasonable, and RWSI is admonished for its lackadaisical approach to this matter, RWSI’s conduct does not exonerate Hunter from his responsibility in the delay. In the circumstances, Hunter was obligated to bring the matter forward to set a litigation plan and get the matter moving. [ 97 ] In my view, since the 2019 Order, both parties have created an unacceptable culture of complacency: Song at para 43 .

There is “plenty of responsibility to go around”, and the overall delay was both parties’ making: Song at para 33 ; Nova Pole at para 39 . On RWSI’s part, it does not seem to take its obligation to move its action forward with “reasonable expedition” seriously despite several warnings from the Court, appears satisfied to treat the Injunction Order as a permanent injunction, has lost interest in pursuing the Remaining Contempt Claims, and does not seem motivated to go to trial on the underlying merits of its claim.

On Hunter’s part, he seems content to limit his litigation efforts to reacting to RWSI and then waiting for his next opportunity to complain about the speed of the litigation or seek its dismissal. Neither party’s approach, on the specific facts of this case, is consistent with the parties’ obligations under the Rules . [ 98 ] In the unique circumstances of this case, for all of these reasons, and with some reluctance, I find that Hunter is jointly responsible for the delay since April 2019, and it is excusable. 3.

Has Delay Resulted in Significant Prejudice to Hunter? [ 99 ] Since I have found that the delay was inordinate, but excusable, Hunter cannot rely on the presumption of significant prejudice under rule 4.31(2). He must rely only on “delay” pursuant to rule 4.31(1)(a): Arbeau at para 35 . The onus is Hunter to show actual “significant prejudice”: Arbeau at para 35 ; Fraser CA at para 21 ; Levy at para 13 .

Usually this will require more than vague or generalized concerns without any particulars: LDS at para 20 ; Song at para 59 . [ 100 ] In Humphreys , the Court of Appeal discussed what is meant by “significant” prejudice, at para 128: “Significant”, in the context of a procedural court rule focusing on delay, means prejudice that is more than minor or trivial. It must be important enough to justify the attachment of a serious consequence adverse to the interests of the nonmoving party.

Webster’s Third New International Dictionary offers this potential meaning: “deserving to be considered: important, weighty, notable”. The Oxford English Dictionary states that significant may mean “[i]mportant, notable”. [footnotes omitted] [ 101 ] In Transamerica , the Court of Appeal stated that “whether or not to dismiss for delay turns on prejudice, indeed substantial prejudice”: para 50.

I do not interpret the Court’s use of the word “substantial”, which arguably could have a different meaning than “significant”, to be expanding or narrowing the meaning of significant for the purposes of rule 4.31. [ 102 ] The degree of prejudice is generally more important than the raw passage of time: Levy at para 17 . Prejudice can be in the form of traditional litigation prejudice, or non-litigation prejudice: Humphreys at paras 125, 130-138 . [ 103 ] Litigation prejudice is that which may impair the moving party’s ability to defend its interests in the trial of an action: Humphreys at paras 130-131 .

Litigation prejudice typically involves things like the unavailability of witnesses or the loss or deterioration of other evidence due to the passage of time: Tiger Calcium at para 47. [ 104 ] Non-litigation prejudice involves the threatening of an important and legitimate interest of the moving party: Humphreys at paras 133-138 .

It can include legitimate professional, business or other interests, reputational damage, inability to earn a livelihood and meet financial duties, delayed retirement, or potentially the stress and inconvenience of litigation and delayed resolution: Humphreys at paras 133-138 ; Ouellette, et al v Law Society of Alberta , 2021 ABCA 99 at para 91 ; Tiger Calcium at para 47; 4075447 Canada at para 8; Jacobs at para 98 .

One way of analyzing whether there has been significant prejudice is to ask whether the delay has impaired a sufficiently important interest of the defendant so as to justify overriding the plaintiff’s interest in having its action adjudged by the Court: Humphreys at para 154 ; Transamerica at para 16 . [ 105 ] The concepts of delay and significant prejudice are causally linked, such that the significant prejudice must be the result of or attributed to the delay: OmniArch Capital Corporation v Bishop , 2020 ABCA 472 at para 31 ; Fraser CA at para 22 ; Arbeau at para 31 ; Transamerica at para 21 ; Cochrane QB at para 39 ; Tiger Calcium at para 48; Alston at para 47 ; McNair at para 51 . [ 106 ] Hunter’s prejudice argument relied heavily on his position that the presumption of significant prejudice should apply, however, I found that it does not apply.

He has not provided direct evidence of litigation or non-litigation prejudice caused by delay in the action. Without the presumption, the only actual prejudice he points to is litigation prejudice in the form of fading memories. [ 107 ] Hunter asserts that a defendant has no onus to provide proof of fading memories to establish significant prejudice because the law presumes that memories fade over time.

He relies on the decision of Justice Leonard in Song v Alberta , 2020 ABQB 583 at para 77 , which cited The Owners: Condominium Plan No 982 6403 v CPI Crown Properties , 2017 ABQB 562 at paras 64-65 and Humphreys at para 182 . Neither of these cases hold that there is a legal presumption that memories fade upon the passage of time as Hunter suggests; they say that the law recognizes that memories fade over time, and that a court may infer memory loss in a case based on the passage of

time. However, the loss of memory does not necessarily prove prejudice, or significant prejudice. In most circumstances, evidence to tiethe fading memories to actual significant prejudice is needed. For example, in Song, the Court of Appeal stated, at para 59: There was no evidence before the chambers judge to show that witnesses were lost or that memories had faded with respect to theevidence that was not already gleaned and preserved by the Board of Inquiry Report or documents secured at that time. The Crown didnot demonstrate real prejudice nor is prejudice revealed on this record.

In the result, in our view, the chambers judge’s conclusion thatprejudice has been shown by the long delay is in error. [108] In this case, it is appropriate to infer that memories have likely faded to some extent since it has been almost ten years since theoriginal underlying events that precipitated the litigation. This applies with less force to more recent alleged incidents that are subject ofthe claim, which has been refreshed and updated several times.

But, in any event, Hunter has not provided evidence that his fadingmemory, or the fading memories of any other witnesses he says are relevant, has or will cause actual prejudice. [109] The problem of the fading memory can be mitigated in cases where events have been otherwise documented, or questioning hasoccurred, or can be exacerbated where the case is not a document-heavy case or questioning has not occurred: Transamerica at para 46;Song at para 59; Alderson v Wawanesa Life Insurance Company, 2019 ABQB 894 at para 57, aff’d Alderson; CWC Well ServicesCorp v Option Industries Inc, 2019 ABCA 331 at para 12; Vortex Hydro Services Inc v Clean Harbors Energy, 2019 ABQB 305 atpara 17; 994552 NWT Ltd v Bowers, 2019 ABQB 195 at para 64; Cochrane CA at para 38.

Hunter has not provided evidence as towhether there are documents available or not available to refresh memories. [110] In my view, certain aspects of this matter are document-based, in particular aspects related to various online websites that Hunteris alleged to have used, many of which are preserved in affidavits filed in this matter or which may still exist online. Other aspects of thecase are less document-based, including Hunter’s alleged picketing and related activity.

However, there does appear to be significantdocumentation of the alleged events through photographs, significant affidavit material, and questioning on affidavits in the proceedingsbefore the Injunction Order and the Contempt Order.

On balance, while Hunter has established that memories have likely been fading inthis matter simply through the passage of time, and continued to fade since April 2019, he has not discharged his onus to show that, onthe balance of probabilities, the fading memories during relevant periods of delay have caused or will cause him significant prejudice. [111] On balance, Hunter has not discharged his onus to show that delay has resulted in significant prejudice. 4.

Should the Court Exercise its Discretion to Dismiss the Action under Rule 4.31? [112] Even if the elements of rule 4.31 are met, the court must consider whether there is a compelling reason not to dismiss the actionand failing to do so properly can be an error: Humphreys at para 156; Song at paras 60-62. As I found that Hunter has not establishedthat delay resulted in significant prejudice, I do not need to consider whether there is a compelling reason not to dismiss the action. C.

If the Action is Not Dismissed, Should the Injunction Order Be Set Aside? [113] Hunter argues that, even if the Action is not dismissed, the Injunction Order should be set aside because its continued existenceis an abuse of process. He points to the duty incumbent on a party obtaining an interim or interlocutory injunction to prosecute theunderlying action to trial expeditiously. [114] I have jurisdiction to consider this aspect of his application, as an order under rule 4.31(1)(b), namely “a procedural order or anyother order provided for by these rules”, or as a stand-alone application under rule 9.15.

Rule 9.15(4) provides that the Court may setaside an interlocutory order (

a) because information arose or was discovered after the order was made, (

b) with the agreement of everyparty, or (

c) on other grounds that the Court considers just. Rule 9.15(4) provides the court with broad discretion in determining whetherto set aside interlocutory orders: Foley-Cornish v Nabors Drilling Limited, 2013 ABQB 186 at para 14; Royal Bank v McLaughlin,2016 ABQB 80 at para 24. [115] Rule 9.16 provides that an application under rule 9.15 must be brought before the judge that granted the order unless the courtotherwise orders. In this case, although Justice Anderson granted the Injunction Order, Hunter advises that she advised that thisapplication did not need to be heard by her.

The application is properly before me. [116] As it is Hunter’s application to set aside the Injunction Order under rule 4.31(1)(

b) or rule 9.15, he has the onus to establish thatthe court should do so. Setting aside interlocutory relief has been held to be extraordinary relief: Jack Digital Productions Inc v ComexForeign Exchange Inc, at para 10, OJ No 3994 (ONSC) [Jack Digital]; Business Depot Ltd v Canadian OfficeDepot Inc, at para 4, FCJ No 1405 (FCA) [Business Depot FCA]; Abbotsford (City) v Shantz, 2014 BCSC 2385 atpara 25 [Abbotsford].

In my view, the onus is particularly relevant in a case like this where the interlocutory order was granted on noticefollowing a robust application process and an appeal was not pursued: Equustek Solutions Inc v Jack, 2018 BCSC 610 at para 18[Equustek Solutions]. [117] Courts have set aside interlocutory injunctions put in place pending trial where there is delay in getting to trial on the merits ofthe underlying action.

This ties directly to the obligation of the party obtaining the interlocutory injunction to diligently take the matter totrial or final resolution: Tsuu T’ina at para 8; McNair at para 33; IGM Resources at para 26; 1516089 Ontario at para 14; AmericanEnvironmental Container at para 42; Simonelli at para 169; 1483860 Ontario at para 77; Guillevin International at para 25. As statedby Justice Côté (as he then was), “the court is not obliged to continue interlocutory relief forever if enough time has passed to enable areasonably diligent party to get to trial”: Kempenaar v Kempenaar, 2008 ABQB 476 at para 27.

There are plenty of examples wherecourts have discharged injunctions for delays significantly less than the delay in this case, for example: Bourganis v Glarentzos, , 19 OR (2d) 327(ONSC) (15 months) [Bourganis]; IGM Resources (15 months); Bauscher-Grant Farms Inc v LakeDiefenbaker Potato Corp, at para 6, 178 Sask R 119 (SKQB) (7 months); Kapur v Konevic, 2021 ONSC 7730 atparas 7-13 (over 15 months); Levert Personnel Resources Inc v LeClair, at para 40, OJ No 5013 (ONSC) (16months); Hutchens v SCAM.com, 2011 ONSC 56 at paras 172, 181-189 (20 months) [Hutchens]; Ciba-Geigy Ltd v Novopharm, [1998]

2 FC 527 at para 31, (almost 3 years) [Ciba-Geigy]; Tsuu T’ina at para 8 (3 years); and 1483860 Ontario (5 years). [118] Some courts have held that the defendant need not demonstrate more than failure to advance the action to a hearing on its meritsto discharge an interlocutory injunction: Bourganis; Ciba-Geigy at para 29; 1483860 Ontario at para 77. [119] However, other courts, including the Alberta Court of Appeal, have not been so rigid.

They have held that delay in prosecutingthe action is but one of the factors considered within the court’s broad discretion, and that the underlying test for the interlocutory reliefcontinues to apply when considering whether to extend, vary or discharge the interlocutory order: Dreco Energy Services Ltd v Wenzel,2008 ABCA 290 at para 27 [Dreco Energy]; Simonelli at para 115; SEkerbank TAS v Arslan, 2017 SKQB 205 at paras 37-40, aff’d2018 SKCA 77 at para 48; R v Gibbons, 2011 ONCJ 218 at para 39.

In these cases, all the circumstances at the time of the applicationare considered, and important other factors can include delay, inequitable conduct, policy considerations, whether there has been amaterial change in circumstances, or whether the underpinning of the earlier order is no longer valid: Dreco Energy at para 27; Lausen vAlberta (Director of SafeRoads), 2022 ABCA 313 at para 12; Simonelli at para 115; Sri Guru Nanak Sikh Centre Brampton vDhadda, 2012 ONSC 716 at para 252; Alpine Village Shopping Centre Ltd v Princeton Way Pub Ltd, 2020 BCSC 1725 at para 101;Teal Cedar Products Ltd v Rainforest Flying Squad, 2022 BCSC 1661 at paras 16, 33, 35; Business Depot FCA at para 6; Abbotsfordat para 25; Equustek Solutions at para 18. [120] A defendant’s conduct, including contribution to the delay in the action, is also a relevant factor in an application to dischargean interlocutory order: Gibbons, 2011 ONCJ 218 at para 39; Business Depot Ltd v Canadian Office Depot Inc, (FC), [2000] FCJ No 63 at para 5, 182 FTR 67 (FC) [Business Depot FC], aff’d Business Depot FCA; Jack Digital at paras 7-11.Where both parties have been dilatory in advancing an action, or allowed it to proceed slowly, it may militate against setting aside aninterlocutory injunction. [121] I consider Hunter’s Application in light of all the circumstances and the tripartite test as set out by the Supreme Court ofCanada: RJR – MacDonald v Canada (Attorney General), , [1994] 1 SCR 311; Google v Equustek Solutions Inc,2017 SCC 34 at para 25.

I note again that Hunter has not filed any evidence in support of his application. I am limited to the existingrecord before the court, including Justice Eamon’s findings in dismissing Hunter’s 2019 Application. [122] I am satisfied that there continues to be a serious issue to be tried. No new evidence has been filed to suggest, and Hunter doesnot argue, that any new information arose or was discovered, or that there has been any change of circumstances pertaining to the factswhich first justified the Injunction Order.

Further, since the Injunction Order, Justice Eamon has found that Hunter breached theInjunction Order and continued to engage in conduct similar to that which justified the Injunction Order and which was expresslyprohibited by it. [123] The 2021 RWSI Affidavit suggests that Hunter, although he does not expressly name RWSI (he refers to the “company”),continued in 2020-2021 to publish online materials regarding “the company”, including that the company “has been breaking the law forso many years”, “they think they are exempt from the law”, “the owner and his son have lied in affidavits, committed purgery...”, “havebroken safety laws by OHS”, have “put employees lives at risk for many years”, “have had multiple fire violations”, “ignored rules fordisposing of asbestos”, “mistreated Mexican employees”, “evaded police after serious crimes”, and the “list goes on and on and on”.

Thewebsite also arguably implies that the “company” was responsible for a physical attack on Hunter, death threats against him, and that thegoal “is to intimidate me with lawsuits, using his sons to threaten me. like the mafia”. Hunter did not question on RWSI’s affidavit, andso, for the purposes of this application, it is unchallenged. [124] Given Hunter’s lack of evidence establishing that there is no serious issue to be tried, I do not need to make any specificfindings in respect of the 2021 RWSI Affidavit at this stage.

However, if I was required to do so, I would find that the 2021 RWSIAffidavit would also satisfy the serious issue to be tried element of the injunction test. [125] With respect to irreparable harm, again Hunter has not filed or referenced any evidence that there is new information that aroseor was discovered, or any change of circumstances pertaining to the irreparable harm that Justice Anderson was satisfied existed whenshe granted the Injunction Order.

I am therefore satisfied that Hunter has not discharged his onus and, further, based on Hunter’ssubsequent conduct since the Injunction Order, that RWSI would suffer irreparable harm if the Injunction Order is set aside. [126] The balance of convenience element of the tripartite test has caused me significant pause in this case. I am particularlyconcerned with RWSI’s failure to prosecute this action and that, like in some other cases, RWSI appears satisfied to use the interlocutoryrelief effectively as a permanent injunction or a sword: Tsuu T’ina at para 9; Hutchens at para 185.

As I have noted earlier, whileRWSI’s approach was excused by Justice Eamon on the basis that it was reasonable for RWSI to focus on enforcing the InjunctionOrder, I have excused RWSI’s conduct since then only because of Hunter’s contribution to the delay. It is no longer reasonable forRWSI to be singularly focussed on enforcing the Injunction Order; it must move the action forward in tandem with any enforcementproceedings: Cochrane CA at para 36.

My decision must not be viewed as condoning RWSI’s approach since April 2019. [127] However, ultimately, and again with some reluctance, I conclude that the balance of convenience favours maintaining theInjunction Order. Again, while RWSI’s recent delay is of concern, for the reasons outlined earlier I am satisfied that Hunter was alsoresponsible for the delay and was content to allow the Action to linger until his next opportunity to seek dismissal. [128] Further, Hunter has engaged in abusive conduct by failing to follow the Injunction Order that he now seeks to set aside.

Afailure to honour court orders is sometimes a strategy to harm other parties, can build an expectation of future litigation misconduct, maybe an abuse of the court’s process, and may undermine the integrity of the judicial process: Unrau v National Dental Examining Board,2019 ABQB 283 at paras 706-709; West Edmonton Mall Property Inc v Proctor, 2020 ABQB 161 at paras 124-126.

The 2021 RWSIAffidavit is at least some evidence of a risk that Hunter’s conduct may continue. [129] Hunter has provided no evidence that the Injunction Order is causing him any actual prejudice, harm or inconvenience that wasnot already present when the Injunction Order was granted. I acknowledge the restraint on his freedom and that the passage of timeexacerbates or extends that restraint and any related inconvenience. However, in the unique circumstances, he is also r

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