4.31: Application to deal with delay
4.33: Dismissal for long delay
5.20: When questioning is to take place

Case Summary

The Defendants/Applicants applied to dismiss the Action pursuant to Rules 4.31 and 4.33. The Action had been commenced 11 years prior.

After surveying the steps which had taken place in the litigation, Justice Mandziuk turned to the Application under Rule 4.31. His Lordship summarized the analysis to be applied under Rule 4.31. Applicants have the onus to prove, on a balance of probabilities, that the delay has resulted in significant prejudice. If inordinate and excusable delay is established, the delay is presumed to have resulted in significant prejudice. The Respondent may rebut the presumption of significant prejudice based on evidence. However, the decision whether to dismiss for delay is ultimately discretionary.

The Court held that the relevant period for assessing the delay in this case was between the date the Statement of Claim was filed (in 2011) and either the date a previous delay Application was filed (in 2018) or when this delay Application was filed (in 2019). No Questioning had occurred in that time period.

The Court observed that the Plaintiff/Respondent had not progressed the Action at a reasonable pace, and that the delay was considerably in excess of what is reasonable in the context of litigation of this nature. The Court specifically noted that the Plaintiff/Respondent’s failure to amend its Statement of Claim, which it had represented it would do, was a key issue: the Defendants/Applicants delayed scheduling their Questioning based on the expected amendment. Notwithstanding Rule 5.20, which sets out that Questioning by the Defendant should take place any time after a Statement of Defence has been served, the Court stated that the Defendants/Applicants were entitled to wait for the expected amendment in order to avoid the necessity of further Questioning based on the expected amendment.

The Plaintiff/Respondent provided no evidence to establish an explanation or excuse for its delay, but rather blamed the Defendants/Applicants failure to advance their Third Party Claim. The Court held that this was no excuse for the Plaintiff/Respondent’s delay.

The Court further held that the Plaintiff/Respondent had failed to rebut the presumption of significant prejudice which had arisen due to the inordinate and inexcusable delay.

Finally, Mandziuk J. held that there was no compelling reason that would persuade the Court not to exercise its discretion to dismiss the Action. Because the Court dismissed the Action pursuant to Rule 4.31, there was no need to consider the Rule 4.33 Application.

The Court awarded Costs against the Plaintiff/Respondent.

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