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

Case Summary

This was an Appeal of a Chambers Judge’s Decision which dismissed an Application by the Appellant, Schulz, to dismiss this Action commenced by the Respondent, Arbeau, for delay pursuant to Rules 4.31 and Rule 4.33.

The Panel first addressed Rule 4.33, noting that the Rule requires the Court to dismiss an Action if three or more years have passed without a “significant advance.” An exception can be made where a moving party has continued to participate in an Action to such an extent that the Court determines it should continue. The Panel also confirmed that a “significant advance” has to be evaluated in context; the focus should be on substance over form.

The Chambers Judge dismissed Schulz’s dismissal Application on the basis that Schulz’s provision of Undertaking responses was a “significant advance” and also that Schulz’s response to a Notice to Disclose showed his further participation in the Action such that it should continue.

The Panel found no reviewable error in these findings by the lower Court and therefore dismissed the Appeal in regards to Rule 4.33.

However, the Panel found that additional consideration was necessary with regards to Rule 4.31. Rule 4.31 gives the Court discretion to dismiss an Action where delay has resulted in “significant prejudice.” Furthermore, significant prejudice is presumed where the delay is shown to be “inordinate and inexcusable,” thereby placing the onus on the non-moving party to rebut the presumption.

In this case, the Chambers Judge ruled that the Court did not need to assess whether the delay in this case was “inordinate and inexcusable” because Schulz had not shown significant prejudice. As the Panel noted, that is not the proper analysis. The Court is to assess the delay first and then determine whether there is a presumption of significant prejudice because the delay has been inordinate and inexcusable, or, whether there is actual evidence of significance prejudice where the delay has not been inordinate and inexcusable.

The Panel then conducted its own assessment of the Rule 4.31. The Court concluded that, despite the lower Court’s error in applying the Rule, the Appeal should still be dismissed. Though there had been delay in this case, it had not been “inordinate.” Significant progress had been made towards Trial despite periodic delays. Moreover, there was no evidence of actual significant prejudice suffered by Schulz. The Appeal was dismissed.

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