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

Case Summary

The Appellants appealed their Applications that had been before an Applications Judge for dismissal of the Action or part of the Action on the basis of delay under Rule 4.31 and 4.33 (the “Dismissal Applications”). The Court also considered a second set of Applications which sought the same relief (the “Second Applications”). Both the Dismissal Applications and Second Applications had been dismissed by the Applications Judge.

On Appeal to a Justice of the Court of King’s Bench, the Court considered the factors under Rule 4.31, and determined that there had been an inordinate delay of seven years. More specifically, the Court noted that there had been no general Questioning, expert reports, and no efforts to enter the Action for Trial in seven years. The Court additionally noted that the Action was not a complex lawsuit and that the timeline was far longer than one for a reasonably similar lawsuit.

Although the Court determined that the delay was inordinate, it found that it was excusable. The Court noted that the period consumed by the Summary Judgment Application and its aftermath, the need to obtain amended Statements of Defence and then schedule Questioning, all without the cooperation of the Defendants, were an adequate excuse for a significant portion of the delay.

Furthermore, the Court found that the Defendants had not suffered the type of significant prejudice that would justify dismissing the Action. The Court noted that each Defendant asserted in Affidavits: frustration with what they asserted was the Plaintiff’s failure to prosecute the Action in a timely and cost-effectively way; inability to move forward with their lives, despite having pleaded guilty and served time in prison; and aspects of their respective family lives were put on hold because of the uncertainty associated with the pending lawsuit. The Court additionally noted that the Defendants were in long term relationships, had families, and had not sought medical attention for stress.

The Court considered Rule 4.33, noting that a deadline cannot be the basis for measuring the relevant period for a significant advance in an Action. The Court found that settling the terms of an Order and filing amended Statements of Defence did not narrow or clarify the issues in the Action.

The Court found that the production of additional Affidavits of Records, each with some new, relevant and material records demanded by the Defendants constituted an advance. The Court specified that one supplementary Affidavit of Records was a significant advance, noting that it included prior and new records, which were in a form with evidentiary significance. The Court accordingly found there had been no period three years without a significant advance.

The Court additionally noted that the amended Pleadings were filed on compulsion of the Respondent and efforts to arrange Questioning without ever settling upon agreed dates, did not constitute participation as contemplated in Rule 4.33(2).

The Court dismissed the Appeals.

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