1.2: Purpose and intention of these rules
3.44: When third party claim may be filed
3.45: Form of third party claim
3.68: Court options to deal with significant deficiencies
4.33: Dismissal for long delay

Case Summary

The Defendant, McMullen, sought leave to bring a Third Party Claim against several individuals and law firms (the “Proposed Third Parties”). The Case Management Justice denied the leave Application for several reasons including: the Defendant failed to file and serve the Third Party Claims under Rule 3.45(c)(i) within six months of filing his Statement of Defence; the Court found there had been inordinate delay by the Defendant, and there were no credible or reasonable excuses for the delay; and there was no reasonable likelihood of success.

The Defendant attempted to explain the inordinate delay by arguing he “was disinclined to take steps which may have the effect of resetting the three year ‘drop dead’ clock” pursuant to Rule 4.33, but the Court found that the reasons for the delay vis-à-vis the Plaintiff in respect of Rule 4.33 do not have relevance to the delay vis-à-vis the Proposed Third Parties.

The Defendant also tried to claim contribution from the Proposed Third Parties under Rule 3.44 but failed to allege a duty owed by the Proposed Third Parties to himself. The Court confirmed that a Third Party Claim cannot be used to enforce duties owed by the Proposed Third Parties to the Plaintiff.

The Court found the Defendant’s failure to proceed in a timely basis was an abuse of process  under Rule 1.2 and determined it had no likelihood of success under Rule 3.68. Rooke A.C.J. dismissed the Application.

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