1.2: Purpose and intention of these rules
4.31: Application to deal with delay
13.18: Types of affidavit

Case Summary

This was an Application by the Defendant/Applicant, Cargill Limited (“Cargill”) to dismiss what the Court described as an “ancient wrongful dismissal action” pursuant to Rule 4.31. The Action had been commenced in 2004.

Master Robertson applied the factors enumerated in Rule 4.31 to the facts. The Rule requires an examination of whether delay has caused actual “significant prejudice” or whether the delay has been “inordinate and inexcusable” which results in a presumption of significant prejudice.

There was no dispute that the delay in this case was “inordinate” as the matter had still not been resolved after 15 years. Therefore, Master Robertson focussed on whether the delay had caused actual significant prejudice or whether the delay was inexcusable resulting in a presumption of significant prejudice. However, before doing so, Master Robertson also addressed the Plaintiff/Respondent, Scott’s, objection to Cargill’s Affidavit on the basis that Cargill’s affiant did not have personal knowledge of the matters attested to as required for Applications for final relief by Rule 13.18. Master Robertson agreed that the affiant did not have personal knowledge; however, as the Affidavit consisted largely of descriptions of dates for the steps taken in the Action and letters sent between counsel, Master Robertson ruled that there should not be a dispute over evidence of that nature.

With regards to actual significant prejudice, Master Robertson did not find that Cargill had suffered any. There was some evidence missing regarding Scott’s mitigation efforts, but she had already admitted on Questioning that her efforts were very modest.

With regards to inexcusable delay, the Court clarified that “inexcusable” must be looked at in context. If the delay is substantially caused by the Defendant, the delay is effectively “excused”. In this case, the Defendant’s counsel was completely non-responsive to numerous attempts by Plaintiff’s counsel to move the matter forward. This ran counter to Rule 1.2 which requires counsel to work cooperatively to advance an Action towards resolution. Therefore, even though some of the delay could be attributed to Scott, the Court did not find that the delay was “inexcusable.”

Finally, the Court considered whether it should exercise the Court’s discretion under Rule 4.31 to dismiss a claim even where there is no significant prejudice and the delay was not inexcusable. Master Robertson did not use this discretion “in light of the apparent deliberate attempt to delay the plaintiff’s claim.” The Application was dismissed.

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