Hall J

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

Case Summary

The underlying Action on an Appeal from the Decision of Master Prowse initially involved the Plaintiff, CWC Well Services Inc. (“CWC”), and the Defendants, Maple Leaf Consulting Inc. (“MLC”) and Everett M. Gusek (“Gusek”) (collectively, the “Defendants”).

The Plaintiff alleged that, due to the Defendants’ faulty design, a CWC drilling rig collapsed in a windstorm. The Defendants denied the allegations and argued that the collapse occurred due to faulty or improper installation or use of the drilling rig by the Plaintiff. The Defendants brought an Application before Master Prowse to dismiss the Action under Rule 4.33 for delay in prosecution of more than 3 years, and, in the alternative, under Rule 4.31 for inordinate, inexcusable and prejudicial delay (the “Application”). Master Prowse dismissed the Application on both grounds and the Defendants appealed that Decision.

On Appeal, Hall J. noted that the standard of review on an Appeal from the Decision of a Master is correctness and that the Appeal is de novo, meaning an Appeal on the record, unless new evidence is provided, which none was. CWC, in the Application and on Appeal, acknowledged that there was a period of delay of some 4 years where CWC did nothing to advance the underlying Action after being provided with the Defendants’ Affidavits of Records. However, following the delay, the Defendants had consented to a Litigation Plan. The Litigation Plan was signed by both counsel and was filed with the Court.

Subsequently, Counsel for CWC agreed to a number of adjournments requested by the Defendants. Justice Hall noted that none of these Adjournments occurred at the request of the Plaintiff but rather, Plaintiff’s counsel granted them as a matter of courtesy. Justice Hall found that the signing of the Litigation Plan, which entailed agreement to proceed as scheduled therein, constituted proceedings taken since the delay which warranted the Action proceeding pursuant to Rule 4.33(2)(b).

Turning to Rule 4.31, Hall J. found that there had been inordinate and inexcusable delay, however, there is a rebuttable presumption under this Rule. His Lordship found that CWC had rebutted the presumption of prejudice as: a) the lawsuit is about whether the design of the drilling rig was negligent and the design documents continue to be in existence, and b) the only missing documents, which the Defendants claim to be prejudiced by, were lost by the Defendants themselves.

Accordingly, Justice Hall dismissed the Appeal.

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