4075447 CANADA INC v WM FARES & ASSOCIATES INCABCA 150

BIELBY, ANTONIO AND FEEHAN JJA

4.31: Application to deal with delay

Case Summary

This was an Appeal of a Decision of a Chambers Justice to dismiss an Action for inordinate and inexcusable delay pursuant to Rule 4.31. The Chambers Justice had dismissed an Appeal from a Master’s Order. 

The Appellant argued that the Chambers Justice had erred in (1) not considering the Rules during the period that required alternative dispute resolution and during which the parties discussed and tried to schedule mediation, (2) dismissing the Action “when the [A]ppellant was ready, willing and able to proceed to trial”, (3) failing to consider the delay by the Respondents, and, (4) failing to find that the Master erred in deciding that the presumption of prejudice was not rebutted and that there was prejudice.

The Court of Appeal determined that the use of the word “may” in Rule 4.31 meant that the there was a degree of judicial discretion in the Rule. The Appellant did not allege that the lower Court had made an error in law when applying the Rule but that the lower Court had erred by not comparing certain facts in the case to other precedents or that it did so erroneously. The Court of Appeal explained that there was no merit to this argument of the Appellant, as Rule 4.31 asks the Court to look at the Action as a whole, that delay cases are largely decided on their facts, and that it was rarely possible to compare the outcome of one delay case with another.

The Appellant relied on the mandatory alternative dispute resolution rule that was in effect during much of the litigation as an excuse for delay, however, the Court of Appeal explained that it was still open to the lower Courts to find that steps taken for litigation did not need to stop during the years in which the mediation process was discussed, and notably, none of the parties ever participated in mediation, they only discussed it.

The Appellant also argued that it had shown evidence that it was ready for Trial and that there was a ceiling of roughly 10 years for a matter to be Trial ready. The Court noted that there was evidence that undermined the Appellant’s assertion that it was ready for Trial. Further, the Court explained that there is no “10 year ceiling” and that many cases are dismissed for delay that have been ongoing for less than 10 years.

The Appellants also argued that that the Respondents contributed to the delay by not conducting their Questioning and that the lower Courts failed to give that fact proper weight. There was, however, a litigation plan in which the Respondents’ Questioning would follow the Appellant’s Questioning, but that Appellants never completed their Questioning.

The Court of Appeal determined that the lower Court did not err in presuming and finding actual prejudice caused by the delay. A major factor was that the Appellants did not lead any evidence to rebut that presumption. The Court of Appeal determined that even if the Appellant’s arguments were true, it would not result in a “palpable and overring error”, and that absent such an error they could not upset findings of fact or factual inferences. The Appeal was dismissed.

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