The Procedural Odyssey in Peters v Countryside Masonry Inc.

Peters v Countryside Masonry Inc. arose from masonry work completed by the defendant, Countryside, from 2003 to 2007 on the home of Robert and Ruth Peters (the “Plaintiffs”). Nearly nine years later, in February 2016, the Plaintiffs sued Countryside and other parties, alleging deficiencies in the work, and particularly masonry work with respect to Countryside.

Initially, the Action proceeded in the normal course, but progress slowed significantly and there were many periods of inactivity. Above all, the tier-one witness for Countryside was never questioned due to cancellations by the Plaintiffs. The tier-one witness for the Plaintiffs also passed away, having never been questioned. Over the course of eight years, the litigation remained far from trial. The Court, considering a comparator case, concluded that four to five years to trial would have been reasonable.

What the Applications Judge Said

Countryside brought a delay application under Rule 4.31 on the eight-year anniversary of the litigation. This rule allows the court to dismiss actions where one party’s delay has resulted in significant prejudice to another.

The Applications Judge agreed there was extensive delay and that trial would not occur until 2027 or 2028. However, the Applications Judge decided the delay was not excessive, since more steps had occurred in this case than in cases of similar age, and the pandemic made timelines hard to judge. Overall, the Applications Judge found the delay not to be inordinate for the purpose of Rule 4.31.

What the Justice Said

Justice Devlin agreed with the Applications Judge that delay occurred in the litigation, but diverged on whether the delay was acceptable. Justice Devlin applied the six-step framework for Rule 4.31 applications from Humphreys v Trebilcock, as expanded in subsequent appellate decisions.

In doing so, Justice Devlin highlighted that the goal is to “determine whether the delay is inordinate, inexcusable, or otherwise has caused significant prejudice to the defendant.” As found in Jordan v De Wet, 2024 ABKB 462, the nature and complexity of the issues and the evidence, in addition to the history of the litigation, define what is considered a reasonable pace in a lawsuit.

Justice Devlin determined that the delay was inordinate, far exceeding what would be reasonable for a fairly straightforward residential construction dispute. The complexity of the case was low to moderate, with a small number of witnesses and clear issues, yet after eight years, the case was not ready for trial.

For example, the tier-one witnesses were never questioned, save for a de bene esse examination of Countryside’s tier-one witness. Some witnesses became unavailable due to illness or death, and expert reports remained outstanding. Justice Devlin noted that it was risible to expect a seriously ill man of advancing age to defend himself through the recall of conversations that occurred over a quarter of a century ago.

Further, Justice Devlin highlighted numerous periods of inactivity, such as long timelines for document production, delayed responses to undertakings, and the Plaintiffs’ cancellations of questionings, which were admitted to be for a collateral tactical advantage.

Justice Devlin criticized the Plaintiffs for failing to advance the litigation, noting that informal settlement discussions and insurance disputes within the matter did not excuse the lack of progress on core litigation steps. He cautioned against engaging in “games over getting on with it.”

Conclusion

Although prejudice is presumed from long delay, Justice Devlin found that prejudice was specifically proven on the facts. Justice Devlin highlighted the erosion of witness memory, the unavailability of key witnesses due to age, illness, or death, and the aggravating factor of tactical decisions. Justice Devlin underscored that the foundational rules of civil procedure require timely and cost-effective resolution, and litigation should be driven by urgency.

Ultimately, in allowing Countryside’s appeal and dismissing the action, Justice Devlin concluded that the delay was inordinate and unreasonable, remained unjustified by the Plaintiffs, and that Countryside suffered real prejudice as a result. Justice Devlin found no compelling reason to allow the action to continue and dismissed the case for long delay. This ruling was underlined by Justice Devlin’s statement that “tacit judicial acceptance of slothful civil suits must end.”

Takeaways

This decision serves as a clear warning to litigants and counsel. Courts expect timely advancement of litigation, and Rule 4.31 provides a powerful tool to enforce that expectation. Tactical delays and reliance on informal discussions cannot justify a failure to take formal steps. Delay undermines fairness and increases prejudice, especially where there are allegations of fraud or other allegations involving moral turpitude. Justice Devlin’s ruling reflects a broader call for a culture shift in civil litigation: decade-long timelines for simple cases are no longer acceptable.

For specific insight into considerations of this case in relation to construction disputes, please Todd Kathol's commentary on this decision.

Disputes can become complex very quickly, so it is advisable to consult a lawyer without delay. Contact John Gilbert or Grant Szelewicki in Calgary, or Jeremy Taylor or Scott Matheson in Edmonton for advice.

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