4.31: Application to deal with delay
4.33: Dismissal for long delay

Case Summary

The Defendant applied to have the Plaintiffs’ Action dismissed for delay pursuant to Rule 4.31. The Defendant was served with a Statement of Claim in this Action on September 4, 2013 (the “Present Action”). Additionally, the Defendant was also named as a Third Party Defendant in a related Action involving the same Plaintiffs which was dismissed on June 29, 2017 (the “Original Action”). The events giving rise to both Actions occurred in 2007.

Master Robertson reviewed the leading authorities related to Rule 4.31 and stated that the Court must ask “whether there has been a delay”, “whether there has been significant prejudice”, and “whether there is a compelling reason, in the circumstances of the case, to militate in favour of allowing the claim to proceed”.

Master Robertson considered the fact that the events giving rise to the dispute occurred over 10 years ago. Additionally, the Present Action was essentially a “back-up plan” to the Original Action that was dismissed on June 29, 2017. When considering the Action as a whole, Master Robertson found that the only potential advancement in the Present Action was an unsuccessful Summary Dismissal Application by the Defendant. Further, Master Robertson stated that the Plaintiffs could have applied to consolidate the Actions, but did not do so. Finally, Master Robertson noted the policy rationale behind the delay Rules, including the issue of fading memories, which was present in this Action.

Master Robertson observed that there was a “compelling reason” not to dismiss the Claim because much of the delay occurred in the Original Action, as opposed to the Present Action. However, Master Robertson concluded that there had been significant prejudice to the Defendant as a result of the Original Action which he should not have to bear. Further, the Pleadings had not closed and no Questioning was complete in the Present Action. The Action was therefore dismissed for delay under Rule 4.31.

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