The Plaintiff in this Action, Schreiber, attempted to resume the Action following his extradition from Canada and imprisonment in Germany for a period of years. The Defendant Attorney General then applied to dismiss the Action due to delay pursuant to Rule 4.33 or, in the alternative, Rule 4.31. Schreiber responded by arguing that he should not be held responsible for delay resulting from his imprisonment and that doing so would interfere with his Charter right to due process.

The Court began by confirming that the delay Rules must be read in conjunction with Rule 1.2 which states that the purpose of the Rules is to provide fair and just resolutions in a timely and cost-effective manner. Moreover, the Court noted that this Action straddled the transition from the old Rules to the new Rules, and that Rule 15.6 allows the Court to suspend or modify the applicability of the current Rules to avoid an undue difficulty or injustice arising from the transition. However, the Court also noted that the now-expired transitional Rule 15.4 clarified that the delay period for Actions predating the current Rules would be either three years from the coming into force of the current Rules, or five years as previously stated in the former Rules, whichever occurred first. Therefore, Schreiber had three years from the coming into force of the current Rules to advance the Action even if there had been a previous delay not exceeding a further two years.

Rule 4.33 requires a Court to dismiss an Action that has not been significantly advanced for three or more years, and in this case both parties conceded that a delay of more than three years had occurred. Therefore, there was no need for the Court to consider Rule 4.31 which allows the Court to dismiss an Action for delay of an unspecific period where the delay has caused significant prejudice. The key issue for the Court to determine was whether Schreiber’s incarceration amounted to an exception to mandatory dismissal under Rule 4.33. Schreiber argued that dismissing the Action would offend his right to due process which he also argued is codified in the Rules, as Rule 1.4 allows the Court to set aside any process mandated by the Rules that is an abuse of process.

The Court rejected Schreiber’s arguments, reiterating again that Rule 4.33 is mandatory after three or more years have passed without a significant advance. The Court’s assessment under Rule 4.33 does not include an inquiry into prejudice or the reason for the delay. The obligation is on the Plaintiff to advance the Action and the Defendant is under no obligation to assist with that apart from refraining from deliberately obstructing the process. It was Schreiber’s responsibility to either advance the Action or to obtain an agreement or a Court Order suspending the passage of time. Schreiber had done neither of these things, and therefore, the Court dismissed the Action pursuant to Rule 4.33.