Hunt Mcdonald j

1.2: Purpose and intention of these rules
4.31: Application to deal with delay
4.33: Dismissal for long delay

Case Summary

The Attorney General had commenced an Action for forfeiture of the Applicant’s residence pursuant to the Victim Restitution and Compensation Payment Act, RSA 2001, c V-3.5 (“VRCPA”). A restraint Order was granted on May 6, 2013. Questioning was completed in September 2014, and in June 2017 the matter was set for a disposal hearing to be heard in June 2018. The Defendant, McNair, applied to have the Action dismissed pursuant to either Rule 4.31 or 4.33. The Application was heard on December 15, 2017.

Hunt McDonald J. rejected the Attorney General’s argument that Crown Actions brought pursuant to the VRCPA were not subject to the Rules, noting that s. 51 of the VRCPA expressly states that the Rules apply. Accordingly, this Action was subject to Rules 4.31, 4.33, and foundational Rule 1.2. Hunt McDonald J. emphasized that Rule 1.2 expressly provides that the Rules are to serve as a means for claims to be resolved in a timely way.

Pursuant to Rule 4.31, Hunt McDonald J. stated that the assessment of inordinate and inexcusable delay is context dependent, which considers what a “’reasonable litigant acting in a reasonably diligent manner’ would have done in comparable conditions”. Hunt McDonald J. rejected the Respondent’s submission that a delay is generally not considered inordinate until after 10 years of litigation has passed, holding that there is no minimum time frame for an application under Rule 4.31. In this Application, Hunt McDonald J. held that the forfeiture remedy provided by the VRCPA was an extraordinary one, and that the scheme of the legislation contemplated “disposal hearings to be heard soon after a restraint Order is granted”. Hunt McDonald J. held that the delay was inordinate in the context of this case, and that the Respondent had not rebutted the presumption of prejudice. Further, Hunt McDonald J. held that the Applicant demonstrated actual prejudice due to the impact the restraint Order had on his ability to rely on his home equity to meet financial obligations while his income fluctuated.

Hunt McDonald J. noted that the inquiry under Rule 4.33 is whether there has been a significant advance in a three-year period, which is assessed using the functional approach. Hunt McDonald J. found that the scheduling of the matter for Trial in June 2017 “signalled the parties’ intention to move the action forward to resolution”, and noted that such a step has often been acknowledged as a significant advance in an Action. No Order pursuant to Rule 4.33 was therefore appropriate. Hunt McDonald J. dismissed the Action on the basis of inordinate delay, pursuant to Rule 4.31.

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