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

Case Summary

The Defendant brought an Application to dismiss the Action, commenced in 2003, for delay pursuant to both Rules 4.31 and 4.33.

The Plaintiff alleged that following the commencement of the Action, there was an agreement between the parties that the Action be held in abeyance until a second Action was resolved. The Action was advanced between 2011 and 2014. Following Questioning of the Defendant on April 15, 2014, no further activity occurred for nearly three years. Days before April 15, 2017, Plaintiff’s counsel sent an Appointment for Questioning. The Defendant’s counsel rejected the Appointment on the basis that insufficient notice had been provided. The Plaintiff then filed two Applications relating to Trial readiness. The Plaintiff also swore an Affidavit asserting readiness for Trial, presumably waiving the right to further interlocutory steps such as Questioning.

With respect to the delay Application, Master Farrington found neither the unsuccessful attempt to schedule Questioning, nor the Plaintiff’s apparent willingness to forego further Questioning, to be a significant advance in the Action. It was known by all parties that Questioning of the Defendant was of minimal assistance because the Defendant had suffered an intervening brain injury. Moreover, the Applications relating to Trial readiness did not constitute a significant advance, as one had been dismissed and the other had been adjourned. Master Farrington dismissed the Action pursuant to Rule 4.33.

In the alternative, Master Farrington would have also dismissed the Action for inordinate delay under Rule 4.31. The delay Application was filed 14 years after the commencement of the Action. Despite the Plaintiff’s claims that there was an agreement between the parties permitting delay in proceeding with the Action, there was no evidence of a written standstill agreement. The Master stated: “It is one thing to hold a matter in abeyance for practical reasons for a reasonable period of time. It is quite another thing to hold it in abeyance for eight years without something more formal.”

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