shelley j

4.31: Application to deal with delay

Case Summary

Four of the Defendants and the Third Parties (the “Applicants”) applied to have the Action dismissed for inordinate and inexcusable delay pursuant to Rule 4.31. The events at issue in the Action occurred in 1998 and 1999, the Statement of Claim was filed in March 2003, and the Application was heard in November 2016.

Justice Shelley stated that inordinate delay is a delay that exceeds what is reasonable given the issues and particular circumstances in the specific case. If an Applicant establishes inordinate delay, then the onus shifts to the Respondent to show that the delay was excusable. Where the delay is found to be inordinate and inexcusable, the presumption of significant prejudice is engaged and the Respondent then has to onus to prove that there was no significant prejudice. Further, Shelley J. noted that several authorities suggest that 10 years is an appropriate benchmark to use when assessing whether delay is inordinate.

While determining whether there had been inordinate delay in the Action, Justice Shelley considered the Respondents’ argument that they should not be penalized for delays which occurred before they were assigned an interest in the Action. Justice Shelley stated that it is well-established in law that an assignee takes no better position than the assignor. Shelley J. considered the Action as a whole, not only the time following the assignment to the Respondents. Justice Shelley noted that while there was no hard and fast “ten year” rule in assessing inordinate delay, the length of time since the Action was commenced as well as the number and length of the various periods of delay are highly relevant to the analysis of inordinate delay. Justice Shelley also rejected the Respondents’ arguments about their unsuccessful attempts to schedule settlement meetings in an effort to excuse the delay. With respect to prejudice, Shelley J. noted that the weakening of witness’ memories or the death of a witness does not need to relate to a period of specific delay before it can constitute prejudice.

Justice Shelley concluded that there had been inordinate and inexcusable delay and found that the Applicants had suffered actual prejudice. As a result, the Application was granted and the Action was dismissed as against the Applicants.

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