4.31: Application to deal with delay
4.33: Dismissal for long delay
15.15: Coming into force
15.4: Dismissal for long delay: bridging provision
15.6: Resolution of difficulty or doubt

Case Summary

The Crown applied to the Court of Queen’s Bench to dismiss the Plaintiff’s Action for long delay and inordinate delay, pursuant to Rules 4.31 and 4.33. At the time the Application was filed, Rule 15.4 was still in force as the bridging provision for Rule 4.33. The Chamber’s Judge granted the Application, and held that the five-year period set out in Rule 15.4(1) applied instead of the three-year period in Rule 4.33(1). By operation of Rule 15.15(3), the bridging provision remained in effect until October 31, 2013. The Plaintiff appealed.

The Court of Appeal held that Rule 15.4 governed the Application, as the Rule stated “on application”, and the Crown had filed the Application when it was in force. Any Application brought within the time of the bridging provision continued to be governed by Rule 15.4, even if adjudication took place after Rule 15.4 was repealed. The Court held this determination was justified by Rule 15.6(b), a provision which allows the Court to make modifications of any Rule for transitional purposes.

The last significant step to advance the Action was service of the Crown’s Affidavit of Records, which occurred more than 5 years prior to the Crown’s Application. The Court of Appeal held that the Plaintiff’s Application for Advance Costs, which remained unresolved, did not significantly advance the Action. This was a step to protect funding, not a step to move the litigation along. Further, the Court of Appeal held that none of the exceptions set out in Rule 15.4(2) applied, and therefore the Chamber’s Judge was correct in dismissing the Action for long delay. The Plaintiff’s Appeal was dismissed.

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