Master Schlosser

4.33: Dismissal for long delay

Case Summary

The Defendants applied for dismissal for delay pursuant to Rule 4.33. Master Schlosser found that the Action had “slowed to a stop” on January 22, 2015 with the service of an Affidavit of Records. Master Schlosser noted that, if there were nothing else, the Action would have expired on January 23, 2018.

Master Schlosser noted that on March 9, 2016, the Plaintiff served a Formal Offer to Settle (the “Offer”) and requested dates for Questioning. Unfortunately, the Fort McMurray Wildfire intervened, leaving many homes and businesses destroyed and the city evacuated. The evidence before the Court was that life for the Fort McMurray Plaintiff and his counsel did not return to normal until late July of 2016.

Master Schlosser noted that while it was doubtful the Offer itself could have constituted a significant advance as required by Rule 4.33, as there were no admissions or narrowing of issues, the delay caused by the Fort McMurray Wildfire had to be considered. Master Schlosser concluded that if the nearly three months’ delay caused by the fire were treated as an involuntary suspension of the Plaintiff’s ability to prosecute the lawsuit, the March 14, 2018 Application was premature. Master Schlosser therefore dismissed the Application and granted a procedural Order requiring that Questioning be completed within 90 days.

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