4.31: Application to deal with delay
9.15: Setting aside, varying and discharging judgments and orders

Case Summary

The Applicant, Darren Hunter and his corporation (collectively, “Hunter”) sought to dismiss the Action by the Respondent, Recycling Works Solutions Inc. (“RWSI”) under Rule 4.31 for the second time. Alternatively, Hunter sought to set aside the interlocutory Injunction that had been extant for over nine years under Rule 9.15. The Court had previously directed the Parties to agree to a litigation plan, and gave both Parties leave to apply for a procedural Order to set a litigation plan if they could not agree, however, neither Party proceeded to do so.

Justice Marion considered the law surrounding Rule 4.31, stating that there had been a long and inordinate delay in this Action. When considering if the delay was inexcusable, the Court found that Hunter was jointly responsible for the delay through its conduct over the years. The Court also noted that Hunter was obligated to bring the matter forward to set a litigation plan. Justice Marion concluded that Hunter had not discharged their onus to show that the fading memories during relevant periods of delay had caused or will cause Hunter significant prejudice. Therefore, the Court did not need to consider whether there was a compelling reason to dismiss the Action.

In considering setting aside the Injunction, Justice Marion noted that Hunter had not filed any evidence in support if its Application, and there was still a serious issue to be tried in this Action. The Court considered the previous Decision that granted the Injunction Order and noted that Hunter’s subsequent conduct since the Injunction Order had caused irreparable harm to RWSI. Therefore, Hunter’s Application to dismiss the Action or to set aside the Injunction Order was dismissed. To avoid further delay, the Court also ordered a procedural Order to move the matter forward. 

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