The Defendants brought an Application to have the Action dismissed for long delay under Rule 4.31.

Prior to considering the merits of the Application, Justice Mandziuk dispensed with the preliminary evidentiary issue of whether the Affidavit evidence in support of the Application was contrary to Rule 13.18, which requires Affidavit evidence to be based on personal knowledge. Justice Mandziuk noted that having the Defendant’s legal assistant swear the Affidavit in support was appropriate given the nature of an Application under Rule 4.31 relates to the procedural aspect of the litigation process. Justice Mandziuk recognized that the client’s source of information on the litigation process would be the client’s lawyer in any event. Justice Mandziuk concluded that it is unrealistic to require a level of personal knowledge from a corporate client, appointed under Rule 5.4, given the fact the evidence is largely exhibited documents and not the merits of the underlying Action.

Regarding the Application for dismissal for Long Delay, Justice Mandziuk first highlighted that timely litigation is a key objective of Rule 1.2. Justice Mandziuk stated that the Court has discretion not to dismiss a claim under Rule 4.31 even if there has been long delay, and that the Defendant only advanced the claim under Rule 4.31 and not under Rule 4.33. Justice Mandziuk further identified that both parties have an obligation to move the litigation forward under Rules 4.1 and 4.2. After considering the leading jurisprudence, Justice Mandziuk concluded that both parties were responsible for the delay and dismissed the Application.