The Defendants applied to strike the Plaintiffs’ Claim under Rule 4.31 on the basis of delay and alleged prejudice. Michalyshyn J. reviewed the Rule, and held that the Defendants’ allegations of prejudice did not satisfy the test of significant prejudice under Rule 4.31(1), because they were general in nature and not supported by meaningful details. Further, the Defendants’ allegations of inordinate and inexcusable delay failed to address the whole of the Action except in the most general terms. As the analysis for delay under Rule 4.31(2) is broader than a review of the most recent litigation activities, the Defendants were unable to demonstrate that there was inordinate and inexcusable delay in the whole Action that would amount to a presumption of prejudice under Rule 4.31(2). The Application was dismissed as a result.

Michalyshyn J. considered whether the Defendants had a positive obligation to move the Action along. The Court cited Foundational Rule 1.2, as well as Rule 4.1, both of which emphasize the timely and cost-efficient resolution of claims. The Court also cited Rule 4.2, which specifically sets out the parties’ obligations, including the requirement to “respond in a substantive way and within a reasonable time to any proposal for the conduct of the action”. Although the Plaintiffs also attempted to refer to Rule 4.2(c), the Court held that Rule 4.2(c) is inapplicable, as the case was not a complex case under the Rules. The Court ultimately concluded that although defendants “should not encourage delay hoping that they will be successful in an Application under Rule 4.31 or 4.33”, it is the Plaintiffs who are responsible for moving their Action forward. In this case, the Defendants were entitled to be “recumbent” in the face of the Plaintiffs’ delay, and the Plaintiffs did not demonstrate that the Defendants had contributed to the delay by failing or refusing to cooperate.

Another issue was whether case management affected the analysis for a delay Application. The Court referred to prior case law, and held that case management does not relieve the parties of their obligations under the Rules, particularly Rule 4.1, to manage their dispute and attempt to resolve the Action in a timely and cost-effective way. Case management also does not relieve the Plaintiffs’ of the responsibility to advance the Action. Under certain circumstances, participation in case management may be relevant in determining what substantive steps the parties have taken in an Action, and whether the Defendants have acquiesced to the delay. Whether case management constitutes a significant advance of an Action for the purpose of Rule 4.33 Applications is fact-specific to each case. Case law also indicated that “case management should not necessarily be held against defendants as a sign of acquiescence or waiver”. The Court held that participation in case management does not alter the approach to a delay Application. In the case at bar, despite a case management Order that required the parties to complete certain steps, the Plaintiffs did not fulfil their obligations. The Defendants’ participation in case management, therefore, should not affect their Application for dismissal due to delay.