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

Case Summary

The sole remaining Defendant applied to strike the Action against her for delay pursuant to either Rule 4.33 or Rule 4.31. The Plaintiff’s Statement of Claim was filed in 2009, and liability for battery was admitted by the remaining Defendant in 2014; the only remaining issue was proof of damages.

Master Schlosser reviewed the steps taken in the Action, and determined that the answers to Undertakings provided in October 2017, as well as the settlement with a group of Defendants in 2018 (which resulted in them being removed from the lawsuit, removing parties and the number of issues) constituted a significant advance in the Action. As such, the Master held that the Action should not be struck pursuant to Rule 4.33, and the Application brought pursuant to Rule 4.33 was dismissed.

With respect to Rule 4.31, Master Schlosser noted that since liability was admitted in 2014, the real question was: “What would a reasonable time be for a [P]laintiff to quantify her damages and bring this lawsuit to a conclusion?” The Master then proceeded to review the progress of the Action as a whole and held that there had been inordinate delay. Master Schlosser next considered whether the delay was excusable, and noted that generally speaking, an acceptable excuse for delay is that it was caused by something outside of the Plaintiff’s control. Here, the primary source of delay was the Plaintiff moving to New Zealand. The delay was compounded by positions taken by various Defendants. Overall, Master Schlosser held that the delay was inexcusable.

Finally, Master Schlosser considered whether the delay had resulted in significant prejudice. The Master noted that prejudice should be presumed where delay is found to be inordinate and inexcusable by operation of Rule 4.31(2). However, Master Schlosser held that the presumption had been rebutted. There was no actual proof of prejudice, and given that the remaining Defendant had admitted to the allegations, there were no unproven allegations hanging over her head. Further, the Master found no actual prejudice arising from the fact that the Plaintiff had settled with the other Defendants and may not be able to call their employees as witnesses given that liability was already established. As such, the Application brought pursuant to Rule 4.31 was dismissed. Master Schlosser further ordered that each party should bear its own Costs.

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