tilleman J

1.2: Purpose and intention of these rules
4.1: Responsibilities of parties to manage litigation
4.10: Assistance by the Court
4.31: Application to deal with delay
4.32: Agreement about delay
4.33: Dismissal for long delay
4.7: Monitoring and adjusting dates

Case Summary

The Plaintiff, Barlot appealed a Master’s Order dismissing Barlot’s Action for delay pursuant to Rules 4.31 and 4.33. The parties entered a litigation plan by consent on November 21, 2013, pursuant to which: (1) assessments by medical experts were to be scheduled by January 15, 2014; (2) the Defendants were to serve any rebuttal expert reports within two months of receipt of the Plaintiff’s expert reports; and (3) the parties were to set the matter down for Trial by June 30, 2014. Though the Plaintiff wrote to the Defendants on January 15, 2014 about the medical assessments, and subsequently about expert reports, and a Formal Offer was served on October 27, 2014, no expert reports were served until after the Defendants’ Application for delay.

Justice Tilleman noted that Rules 1.2 and 4.1 inform the interpretation of Rules 4.31 and 4.33, and Rule 4.33 acts as a “limitations period”. His Lordship considered Rule 4.33 and the leading authorities related to the Rule, and determined that the steps taken subsequent to entering the litigation plan did not constitute a significant step. Justice Tilleman held that the January 15, 2014 correspondence could not constitute a significant step as, at best, it signalled a tentative satisfaction of the commitment to schedule expert reports. The Formal Offer did not constitute a significant step, as it contained no legal or factual details and was not a constructive step toward advancing the Action. His Lordship noted that the test was a “significant” advance, not a mere advance, and it was correct that the Action was dismissed pursuant to Rule 4.33.

The Plaintiff argued that the Consent Order obtained to enforce the litigation plan on November 21, 2013 constituted an “agreement about delay” pursuant to Rule 4.32. Justice Tilleman noted that Rule 4.32 allows parties to agree to delay, but the agreement must be served and must set out the nature and extent of the delay. The requisites for an agreement for delay was not followed in this case.

Justice Tilleman agreed that the Action should be dismissed pursuant to Rule 4.31, and noted that delay is a relative concept. For the purposes of Rule 4.31, the delay must be inordinate in comparison with delay which might ordinarily and reasonably occur in litigation. Tilleman J. noted the rebuttable presumption that inordinate delay, when proven, causes significant prejudice and that Rule 4.31 is a discretionary rule, aimed at allowing a judge to consider the Action comprehensively to determine whether it should continue.

The Defendant argued that not only was there inexcusable delay, but that significant prejudice had been suffered. Justice Tilleman again noted Rule 4.1 and stated that it is the responsibility of Plaintiff’s counsel to make use of whatever resources it has to manage the risk of delay, noting that Applications under Rule 4.7 or 4.10 may have been available but were not used. Consequently, Justice Tilleman dismissed the Appeal in its entirety.

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