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

Case Summary

The Defendant Applicants applied to Provincial Court seeking dismissal of a Civil Claim against them on the grounds that sufficient time had passed since the last step had occurred which advanced the Action. The Applicants submitted that there had been a long, inordinate and inexcusable delay by the Respondent. The Respondent commenced an Action on or about February 25, 2010, and the Applicants had filed Dispute Notes on June 18 and June 23, 2010 respectively. The Respondent e-mailed counsel for the Applicants on June 24, 2012 requesting that a Dispute Note be filed for the individual Defendant, Mr. Steed. Counsel for the Applicant replied the day afterwards and attached a copy of both previously filed Dispute Notes.

Judge Higa referred to and relied on Rules 4.31 and 4.33 of the Rules of Court. Judge Higa noted that nearly 4 years had passed from the issuance of the Civil Claim against the Applicants, and approximately 3 ½ years had passed since the filing of the Applicants’ Dispute Notes. The Respondent had taken no further steps to advance the Action, save the e-mail issued to demand that a Dispute Note be filed. Judge Higa held that simply requesting the filed Dispute Note was not sufficient to allow the Action to continue. Judge Higa dismissed the Respondent’s Civil Claim pursuant to Rule 4.33.

Although Judge Higa did not find it necessary to apply Rule 4.31, he observed that Rule 4.31 allows a Court to dismiss a Claim when satisfied that a delay has resulted in significant prejudice to a party. Judge Higa opined that the prejudice to the Applicants would be significant and that the amount of time that had passed was clearly inordinate and inexcusable delay. Judge Higa held that the Applicants had satisfied the requirements showing significant prejudice caused by the Respondent’s delay.


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