4.31: Application to deal with delay
4.33: Dismissal for long delay

Case Summary

The Appellant sought to Appeal an Order of Applications Judge Farrington by which he refused to stay or dismiss the Action or enforcement thereof, and granted an Application to set Judgment amounts. The Appellant argued that delay justified dismissal of the claim against it, or a stay of the Judgment until the case could be concluded.

The Action involved a debt claim for an unpaid loan, secured by personal guarantees of various Defendants. Summary Judgement was granted in August of 2015 against the Appellant. No further steps were taken against the Appellant until June 2020, though steps were taken involving other Parties. At that point, an Application for Judgment Calculation was filed. In response, the Appellant filed an Application to, among other things, dismiss the Action for long delay, pursuant to Rules 4.31 and 4.33.

The lower Court ultimately dismissed the Application and set the Judgment amount against the Appellant. The Appellant filed a Notice of Appeal, but did not seek a Stay of the Order pending Appeal. The Appeal centred on whether the Action should be dismissed for long delay. The Respondent argued that the delay Rules were not available because there was already Judgment against the Appellant.

Justice Marion closely examined the wording of Rule 4.33. He held that an “Action” for the purposes of Rule 4.33, ends when the claim in the Action has been finally determined against a Defendant such that there is no substantive lis or justiciable issue between the Parties on the merits. At that point, the Parties become “judgment creditor” and “judgment debtor”, rather than Parties to the Action. As the value of the Judgment remained outstanding during the delay period, Rule 4.33 continued to be available. However, since substantial steps were taken by other Parties to the Action during the delay period, the decision to dismiss the long delay Application was upheld.

Justice Marion then considered whether a remedy was available under Rule 4.31. He distinguished Rule 4.31 from Rule 4.33, stating that Rule 4.31 generally applies wherever delay in the “action as a whole” has caused significant prejudice to a Party. He found that, in this case, there was delay, but the Appellant failed to discharge the onus of establishing that the delay was inordinate or inexcusable.

Lastly, Marion J. considered whether the Judgment against the Appellant should be stayed pending the outcome of the claims against the other Defendants, pursuant to Rule 4.31. He held that the possibility of other Defendants raising defences not available to the Appellant was not a reason to stay the Judgment. Further, the Appellant would not suffer irreparable harm if the Stay was not granted. Justice Marion therefore upheld the Application Judge’s Decision to dismiss the Application.

View CanLII Details