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

Case Summary

The Applicant applied to dismiss an Action for long delay pursuant to Rules 4.31 and 4.33.

Rule 4.33 provides that the Court must dismiss an Action against an Applicant if three or more years pass without a significant advance in the Action. Master Schlosser determined that the Action was advanced by the Defendants’ Affidavit of Records served on June 17, 2016. The next potentially significant step in the litigation was an Application for a procedural Order and a litigation plan, which was scheduled for June 13, 2019. However, this Application was adjourned at the request of the Applicant.

The Applicant argued that a procedural Order was not a significant step and that scheduling an event does not constitute an advance unless the event actually takes place. Master Schlosser held that the Court must consider the position the parties would have been in on June 13, 2019, if the procedural Application went ahead. The Court noted that a procedural Order becomes necessary when a lawsuit is not advancing as it should. Master Schlosser held that the procedural Application likely would have been successful and would have constituted a significant advance if it proceeded as scheduled. Thus, the Court dismissed the 4.33 Application.

Master Schlosser also dismissed the Rule 4.31 Application. Rule 4.31(1)(a) allows the Court to dismiss an Action if the Court determines that delay has resulted in significant prejudice to a party. The Court noted that the first major delay occurred when one of the Defendants was unavailable for Questioning because he was outside of Canada. The Court determined that the second major delay appeared attributable to the Plaintiff but was excusable. The Court held that because there was not both inordinate delay and inexcusable delay, prejudice was not presumed. The Court rejected the Applicants’ prejudice claims and dismissed the Application.

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