master mason

4.31: Application to deal with delay
4.33: Dismissal for long delay
8.7: Confirmation of trial date

Case Summary

The Plaintiff sued multiple Defendants for breach of contract involving the sale of a residential lot. One of the Defendants, Amden, applied for dismissal of the Action under Rules 4.31 and 4.33.

The parties submitted a Form 37, Request to Schedule a Trial Date on August 28, 2015, less than three years before Amden’s Application. Amden argued that the Request to Schedule a Trial Date was not a significant advance in the Action because the trial dates were cancelled by the Court when the parties failed to file a Form 39, Confirmation of Readiness for Trial. Master Mason employed a functional approach and determined that the filing of a Form 37 was a significant advance in the Action because it required the parties to consider the issues in the litigation and the evidence necessary to establish their respective positions. Master Mason dismissed the Application for Dismissal for long delay pursuant to Rule 4.33.

When considering Amden’s Application for Dismissal for delay pursuant to Rule 4.31, Master Mason noted that although given the nature of the particular Action taking over five years to reach the current point was excessive, Amden had contributed to the delay. Furthermore, Amden did not provide evidence of prejudice so the presumption of prejudice was rebutted. Further, Amden had confirmed that the matter was ready for Trial, and document production and Questioning was complete. Finally, Amden’s affiant in a prior Summary Judgment Application confirmed in Questioning that records upon which the claims revolved were still available, and that his memory of the facts had not been “negatively impacted by the passage of time”. Master Mason dismissed the Application to dismiss for delay pursuant to Rule 4.31.

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