4.31: Application to deal with delay

Case Summary

An Application was brought to dismiss the Action for long delay pursuant to Rule 4.31. Master Schlosser canvassed the jurisprudence regarding Rule 4.31, and noted that the Court should weigh a number of factors including: the complexity of the lawsuit, the number of parties, the steps taken and the relevant time limits under the Rules for those steps, whether there have been long gaps in the progress of the Action, the Defendants’ involvement in the delay, and whether the case is more of a “documents case” or a “memories case”. Master Schlosser noted that the Plaintiff should not be held responsible for periods attributed to institutional delay and the Court should be alive to whether the time limits for certain steps have changed under the Rules during the lawsuit. Master Schlosser also noted that certain “coarse filters” can be used to assess delay in the first instance. An Action that is 10 years old may be beyond its “best before date” as a general rule; however, the analysis under Rule 4.31 is not a bright line test, and is rather a nuanced analysis.

The Action was 13 years old, but Master Schlosser distinguished it from a number of other decided cases. Master Schlosser noted that, unlike some other cases of that duration, the Action was nearly ready for Trial, and all that remained to be done was mandatory Joint Dispute Resolution and the Defendant’s response to the Plaintiff’s expert reports. Considering all of the circumstances, Master Schlosser concluded that while the delay was inordinate, it was not inexcusable. The Court held that this was “borderline” case and the default position for such cases should be to let them proceed. Individual incidents of delay within the Action could be dealt with by the Trial Judge with Costs awards.

The Application was dismissed.

View CanLII Details