4.31: Application to deal with delay
13.18: Types of affidavit

Case Summary

This was an Application to deal with delay pursuant to Rule 4.31. The Applicants argued inordinate and inexcusable delay and addressed the issue of significant prejudice. The Court noted that it is incumbent upon Rule 4.31 Applicants to identify and stipulate what significant prejudice they have suffered because of a Plaintiff’s delay, or to state why they cannot do that.

Master Schlosser emphasized that, under Rule 4.31, the Court does not have the power to dismiss for delay in the absence of significant prejudice. The Court confirmed that if delay is inordinate and inexcusable then an Applicant enjoys the presumption of significant prejudice, which can be rebutted by the Respondent. The Court noted that significant prejudice includes: substantive prejudice, fading memory of witnesses, unavailability of records, increased difficulty in enforcing a judgment, and interest, expense or income lost. The Court added that the prejudice should be of a type that cannot be cured with Costs, a provision about interest, or a procedural Order.

The Court observed that Rule 4.31 is discretionary; the Court has the discretion not to dismiss the Action, even if prejudice is demonstrated or presumed. The Court also reviewed Rule 13.18(3), noting that it requires that the evidence in support of a Rule 4.31 Application be firsthand. Indeed, while it is open to a Respondent to rely on hearsay in its response, this option is not open to an Applicant.

In dismissing the delay Application the Court observed that the Applicants were not able to provide firsthand evidence, but instead relied on hearsay. The Court further noted that the Applicants provided no evidence that any material witness was unavailable or would be non-cooperative, adding that the Applicants’ arguments about faded memories of witnesses was merely speculative.

In sum, Master Schlosser determined that there had been long delay, but that the blame for the delay had been on all parties. The Court found that significant prejudice had not been established and Master Schlosser noted that he was not persuaded that the lawsuits could not still be determined on their merits. The Court ordered the parties tender a proposed litigation plan so that the matter may be set down for trial.

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