Alberta Court Dismisses $4M Construction Claim for Delay

It has long been recognized that civil lawsuits take too long to run their course and that justice delayed is often justice denied. The recognition of and a response to this systemic problem can be found in the foundational and delay Rules in the Alberta Rules of Court which came into force in 2010. The foundational Rules direct that claims should be resolved in a “timely and cost-effective manner”. The delay Rules empower the Court to dismiss a lawsuit when three years have passed without a significant advance or if the case has been subject to inordinate delay. The former is mandatory while the latter is discretionary and turns on a number of factors including, most significantly, whether the delay resulted in prejudice to the party applying for dismissal of the lawsuit. A significant body of case law has developed in the past years in the many Court actions testing the delay Rules and whether the Court was prepared to throw out the lawsuit in question or to let it survive subject to expedited marching orders.

In the very recent case of Peters v. Countryside, Justice Devlin of the Court of King’s Bench issued written reasons dismissing a slow-moving case arising from a construction project completed in 2007. In so doing, he shared and acted on the dictates of higher Courts that “chronic civil litigation is profoundly unhealthy for society as a whole”.

Countryside Masonry was a small company that specialized in rough stone masonry on high-end homes in and around Calgary. One such project was to clad the exterior of a new 10,000-square-foot two-story residence near Millarville owned by the Plaintiffs. Countryside’s scope of work also included the rough-in and stonework for about a dozen wood-burning fireplaces as well as the flagstone flooring inside the home. Countryside completed its work in the summer of 2007 and heard nothing more about the project until 2016, when it was served with the Statement of Claim against it and the general contractor. In 2017, the masonry from a corner of the residence was removed and reassembled in an engineered remediation of the building envelope.

This lawsuit advanced sporadically from its commencement in February 2016 until the filing by Countryside of an application to dismiss the claim for inordinate delay in January 2024. The case came before Justice Devlin on appeal by Countryside from the decision of the Applications Judge, who dismissed Countryside’s application in an oral decision rendered in February 2025.

Notwithstanding that the Plaintiffs’ claim for the cost to remove and restore all of Countryside’s external stonework was in excess of $4 million and the retention of engineering experts by both sides, Justice Devlin was not impressed that the case was particularly complicated. In this respect, he agreed with the assessment of the Applications Judge that the case was “a fairly straightforward residential construction dispute”. He then disagreed with the determination of the Applications Judge that there was neither inordinate delay nor significant prejudice caused by the delay sufficient to dismiss the case.

All levels of Alberta Courts have stressed that the outcome of a dismissal for inordinate delay application is fact-specific. The facts pertinent to the delay analysis in Peters v. Countryside are very unique. By the time Countryside’s application was filed, the Plaintiff owner and “driving force” behind the project was deceased, and the principal of Countryside was in his 60s, resident in Thailand, and suffering from advanced cancer. These two men were the primary witnesses to a construction project completed in 2007 and subject to material verbal directions and modifications. Justice Devlin concluded that in the circumstances of this case, prejudice should be presumed and was proven: “The idea that a seriously ill man of advancing age could reliably defend himself through the recall of conversations about building variations that occurred up to a quarter century ago is risible to anyone who has practiced litigation.”

Takeaways

This judgment will be of interest to civil litigators regardless of the factual context of their lawsuits. Justice Devlin’s comprehensive analysis and commentary on the principles and judicial policy were plainly intended for broader application than the case before him. All participants, including lawyers and the judiciary, are called on for a culture shift away from tolerating and perpetuating chronic delay. For further insights into the procedural significance of this decision, see the commentary by John Gilbert and Grant Szelewicki.

It may be that the participants in a civil lawsuit arising from a construction dispute operate on the view that a construction lawsuit is, by definition, complicated and afforded a longer runway to trial. Peters v. Countryside should serve to debunk this view. Plaintiffs and their counsel in construction lawsuits need to keenly track and ensure that overall progress is being made in a timely way. This is particularly so for cases of simple to moderate complexity. In a particularly colourful passage in his Reasons, Justice Devlin observed that: “There is no universe in which it is reasonable that a basic construction case should be unable to see a trial on the horizon after eight years except, it seems, in our own.” Litigants should also take note that the positive obligation to advance the lawsuit with “compulsion and urgency” is heightened in cases commenced a lengthy period after the events underlying the dispute.

The merits of a construction case and how it is being prosecuted can be complicated. For an assessment of your case, please contact Todd Kathol or John Gilbert in Calgary, Ryan Krushelnitzky or Scott Matheson in Edmonton, or any member of Field Law’s Construction Group for assistance.

Link to decision: Robert G. Peters, Ruth Peters, and Rocky Mountain Ranches Ltd. v. Countryside Masonry Inc., 2025 ABKB 713