The Defendants had filed an Application to dismiss the action for delay pursuant to Rule 4.31. The Case Management Judge had denied the Application, and the Defendants appealed.

The Statement of Claim was filed by the Royal Bank of Canada in 2009. At the time that the 4.31 Application was brought, 10 years had passed since the Action was commenced and the matter was still not scheduled for Trial. As such, the Defendants argued that the delay was inordinate and inexcusable, causing significant prejudice to the Defendants, and that the Action should be struck pursuant to Rule 4.31.

The Court of Appeal emphasized that “significant prejudice” is a precondition to dismissal for delay pursuant to Rule 4.31. The Court of Appeal noted there was no test for measuring inordinate delay, and rather that each case has different considerations and circumstances, meaning there is no presumptive time period which gives cause to strike an Action for delay. Rather, the Court of Appeal emphasized that the degree of prejudice is more important than the “raw passage of time”. Although areas of delay and prejudice were noted by the Court of Appeal, the Court of Appeal decided not to allow the Appeal as the Case Management Judge had made no error that invited appellate intervention.

The Appeal was dismissed, but the Court of Appeal ordered that Costs of the Appeal be in the cause.