TAKACS v INTERNATIONAL UNION OF OPERATING ENGINEERS

The Plaintiff appealed the Chamber Judge’s Decision dismissing its claim for long delay pursuant to Rule 4.33.

Two years and 11 months after the Defendant filed its Affidavit of Records, the Plaintiff filed an Application to set the matter down for Trial, which was ultimately adjourned at the request of the Defendant due to the unavailability of legal counsel. At the next appearance, the Defendant argued that because the parties had yet to complete Alternative Dispute Resolution in accordance with Rule 8.5(1)(a) the matter could not be set for Trial. The Defendant also advised of their intention to bring a rule 4.33 Application, and as a result, the Court did not make a procedural Order to direct the matter to Trial.  At the Chambers appearance addressing the 4.33 Application, the Chambers Judge found that the application of Rule 4.33 was mandatory and did not allow for the exercise of discretion. The Application for dismissal for long delay was granted.

On Appeal, the Plaintiff argued that the adjournment of the initial Application to set this matter to Trial should be considered in the context of Rule 4.33. Specifically, the Plaintiff argued that the Chambers Judge erred by failing to consider that the self-represented Plaintiff was not at fault for the initial adjournment and that had the initial Hearing to set the matter for Trial proceeded, a procedural Order likely would have been directed. The Court agreed, granting the Appeal and reinstating the Plaintiff’s claim.