The Defendants, Haxton Holdings Ltd. and Keith D. Haxton, brought an Application under Rule 4.31 for dismissal of the Action, which related to the construction of a restaurant. There were two Actions commenced in early 2016 after the registering of certificates of lis pendens, and on a functional basis, the lawsuits were being advanced in tandem.

After they were commenced in January of 2016, the lawsuits proceeded at a reasonable pace. Questioning took place in August 2017, and answers to Undertakings were completed by June 25, 2018. On April 28, 2018, a potential witness died. The next significant step occurred on June 30, 2020, when the Defendants received a supplementary Affidavit of Records that had been sworn on July 24, 2019. A tolling agreement was put in place on March 17, 2020, when the Covid-19 Pandemic became a factor.

In analyzing the delay under Rule 4.31(1) Master Robertson noted that in seeking dismissal under this Rule, both delay and significant prejudice must be present. In the event both delay and significant prejudice are present, the Court retains discretion to dismiss, or not. The prejudice alleged in this matter was that a witness had died and could no longer be called. Master Robertson identified that under Rule 4.31(1), the significant prejudice must be a result of the delay. Master Robertson found that the significant prejudice alleged to have occurred in this matter was not a result of the delay as the witness had died prior to the delay occurring.

With regards to Rule 4.31(2), Master Robertson addressed whether the delay was inordinate and inexcusable. If the delay is inordinate and inexcusable, then significant prejudice is presumed. However, Master Robertson noted there was reasonable explanations for the delay and that they were not inordinate. The Application under Rule 4.31 was dismissed.

Under Rule 5.10, Defendants’ counsel took issue with the fact that he was not informed of the documents in the supplemental Affidavit of Records. Master Robertson noted that counsel for the contractor should have immediately informed counsel for the Defendants of these documents, and Master Robertson considered this as part of the larger Application under Rule 4.31.