Ross J

4.31: Application to deal with delay
4.33: Dismissal for long delay
5.5: When affidavit of records must be served

Case Summary

Ross J. dismissed the Plaintiff’s Action as against all of the Defendants for abuse of process, but also considered whether the Action ought to be struck pursuant to Rule 4.31.

The Plaintiff, a self-represented litigant, was described as being “his own worst enemy” in the Action. The Court noted extensive problems with respect to serving the Plaintiff, as well as the Plaintiff’s lack of compliance with Court Orders and the Rules of Court. Since filing his Statement of Claim, the Plaintiff had done nothing to advance the Action, including serving his Affidavit of Records, which was overdue by nearly one year. Ross J. noted that Rule 4.31 can be used when the three-year time limit in Rule 4.33 has not yet passed.

Ross J. noted that the emphasis on Rule 4.31 is whether the delay causes prejudice to a litigant. Where the delay is inordinate and inexcusable, it is presumed to cause prejudice to the party bringing an Application under Rule 4.31. Such delay is that which “exceeds what is reasonable having regard to the nature of the issues and the circumstances of the case”. Ross J. held that the delay in serving the Affidavit of Records was inordinate, noting that it was highly likely that the Plaintiff had all of the records in his possession, and that nothing suggested an extension was necessary. Ross J. also noted the Plaintiff provided no explanation or evidence regarding the delay, and it was thus inexcusable. Justice Ross also dismissed the Action for delay pursuant to Rule 4.31.

View CanLII Details