Ex-employee’s claim alleging shareholder oppression will proceed to trial
In a proceeding alleging wrongful dismissal and shareholder oppression against a former employer, the Alberta Court of Appeal saw no justification to interfere with a chambers judge’s decision that refused to dismiss an ex-employee’s claim based on delay.
In Ranger v Precision Geomatics Inc, 2025 ABCA 357, the ex-employee filed a claim in 2012 alleging wrongful dismissal and shareholder oppression against his former employer. He served the claim on Feb. 20, 2013.
On Jan. 21, 2021, the parties signed a Form 37 certificate of trial readiness, which they filed with the court. On Nov. 25, 2022, the employer applied to dismiss the claim for delay under r 4.31 or summarily dismiss the claim under r 7.3 of the Alberta Rules of Court, Alta Reg 124/2010.
On Mar. 26, 2024, an application judge granted the employer’s application to dismiss the action for delay. The application judge ruled that the employee inordinately and inexcusably delayed pursuing his claim, which presumptively resulted in significant prejudice to the employer.
The application judge added that the employee failed to disprove this presumption or give a compelling reason not to dismiss the action under r 4.31. The employee appealed the application judge’s decision.
Last Jan. 24, regarding the issue of inordinate delay, Justice M. Kraus of the Alberta Court of King’s Bench considered this a “borderline” case, but ultimately deemed the delay inordinate because the employee did not seriously oppose such a characterization.
However, the chambers judge found the delay excusable. He attributed some delay to the employee’s personal circumstances during the proceedings and attributed around 48 months of the delay to the employer.
The chambers judge described the employer’s filing of a Form 37 – which certified the case as ready for trial on Jan. 21, 2021 – as a waiver of its right to complain about delay after that point. He added that the employer failed to show any significant prejudice due to the delay.
Claim to proceed
The Court of Appeal of Alberta dismissed the appeal. The appeal court held that the employer failed to identify palpable or overriding errors in the chambers judge’s reasons or any basis to interfere with his exercise of discretion to permit the case to proceed to trial.
First, the appeal court saw no palpable and overriding errors in the chambers judge’s treatment of the employee’s personal circumstances in his explanations for the delay. The appeal court said the chambers judge justifiably used his discretion in:
- considering the employee’s personal circumstances in deeming the delay excusable
- weighing the evidence of the COVID-19 pandemic’s effects on the employee’s ability to fund the litigation
- focusing on the employee’s financial challenges from 2019 onward
- finding it reasonable for the employee to prioritize pursuing work contracts, which helped him finance the proceedings, over pursuing the litigation
The appeal court agreed that the employee’s job search troubles, financial situation amid the pandemic, and consequent inability to afford legal fees at some points during the proceedings were all relevant considerations. The appeal court added that the chambers judge had reasons, apart from the employee’s personal circumstances, to deem the delay excusable.
Second, the appeal court saw no errors in the chambers judge’s finding that the employer also had obligations to advance the litigation and contributed to the delay by failing to meet some of those obligations on time.
The appeal court rejected the employer’s argument that the chambers judge erred by focusing on the delay attributable to the defence, while failing to consider the 24 months’ delay attributable to the employee after the filing of the Form 37.
The appeal court stated that the chambers judge’s finding that the employer caused some delay did not mean that he was ignoring the employee’s contributions to much of the delay.
The appeal court also disagreed with the employer’s argument that the chambers judge erred in his treatment of the evidence concerning the breach of the litigation plan.
The appeal court said the evidence supported the chambers judge’s findings that:
- The employee diligently tried to schedule the questioning of the employer’s corporate representative
- Both parties breached the litigation plan because the questioning of both sides occurred after Dec. 14, 2017, the deadline for the parties to finish questioning
Third, the appeal court acknowledged that no pre-determined litigation activities automatically led to an inferred waiver because the issue of whether a party’s conduct amounted to acquiescence to the delay was a contextual question.
However, the appeal court explained that a party taking steps suggesting that they approved of the action moving forward could not then rely on the delay to dismiss that action.
The appeal court accepted that the chambers judge’s decision included insufficient contextual analysis of the Form 37’s impact on the issue of whether the employer waived the delay. However, the appeal court held that the chambers judge:
- comprehended the pertinent contextual factors
- appropriately assessed how the waiver issue impacted the question of whether the delay was excusable
- evaluated the action’s complete context
- gave a detailed timeline and examination of the parties’ actions and contributions to the delay
- specifically addressed the significance of the completed Form 37, which confirmed that the parties were ready and willing to go to trial
- relied on the Form 37 waiver as one of numerous factors to deem the delay excusable
