1.2: Purpose and intention of these rules
4.31: Application to deal with delay
5.34: Service of expert’s report
8.4: Trial date: scheduled by court clerk

Case Summary

Several of the Defendants brought Applications to have two Actions dismissed as against them for inordinate and inexcusable delay pursuant to Rule 4.31.

The Court noted that Applications to deal with delay are considered in the context of the Foundational Rules which impose obligations on all parties to advance the Action. As such, the objective of Rule 4.31 is to promote timely, cost-effective, fair and just resolution of claims by providing a remedy when delay in prosecuting a Claim has resulted in presumed or actual significant prejudice to a party. The Court considered the progress during eight years since the Action was commenced and found that there was delay in prosecuting the Actions.

Further, the Court noted that the Actions were still far from being scheduled Trial. Rule 8.4 identifies the steps that must be completed before a Trial date is scheduled; several of these steps had not been undertaken in the case. Rule 5.34 specifically provides that a clerk cannot schedule a Trial date unless expert reports had been exchanged; none had been exchanged in this matter. Additionally, there was no Litigation Plan in place to ensure the completion of all the required steps.

The Court found that there was inordinate delay, noting that, by the time the Actions would be ready to be set down for Trial they would have been ongoing for 12 years and the Trial itself would occur at least 20 years after the events at issue. The Plaintiffs were unable to provide an excuse for such delay and, as a result the Applicants were entitled to rely on the presumption of significant prejudice under Rule 4.31(2). The Actions were dismissed as against the Applicants.

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