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

Case Summary

The Applicant applied to dismiss the Plaintiff’s claim for delay pursuant to Rules 4.33 and 4.31. The Applicant died in 2018 and his wife had been appointed as his litigation representative.

The Court first considered the Rule 4.33 Application. Rule 4.33 requires the Court to dismiss an Action on Application if three or more years have passed without a significant advance. The Court determined that a 2017 Procedural Order to compel Undertaking responses provided for an exchange of information that would assist both sides and significantly advanced the Action. The Court also noted that the Applicant’s estate acquiesced to the Plaintiff’s 2020 Application to appoint a litigation representative. As such, the Court dismissed the Rule 4.33 Application.

The Court then considered the Rule 4.31 Application. Rule 4.31 allows the Court to dismiss an Action on Application if the Court determines that delay has resulted in significant prejudice to a party. The Applicant’s litigation representative provided an Affidavit stating that the Action primarily depended on witness memories and that she had been prejudiced by the Applicant’s death. The Court disagreed that the Action primarily depended on witness memories, noting that the Applicant’s litigation representative had provided insufficient particulars of the prejudice suffered. Master Schlosser also determined that the delay was not attributable to the Plaintiff, nor was the delay inordinate.

As a result, the Court dismissed the Rule 4.31 Application. The Court noted that prejudice is not presumed under Rule 4.31(2) where the delay is neither inordinate nor inexcusable. As the Applicant’s litigation representative did not provide sufficient evidence of actual prejudice, there was no basis to dismiss the Action pursuant to Rule 4.31(a).

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