1.2: Purpose and intention of these rules
1.3: General authority of the Court to provide remedies
1.4: Procedural orders
1.5: Rule contravention, non-compliance and irregularities
1.6: Changes to these rules
4.31: Application to deal with delay
4.33: Dismissal for long delay

Case Summary

The Plaintiff commenced an Action against the Defendant for damages arising from bullying suffered by the Plaintiff over the course of his school years. The Defendant brought an Application to dismiss the Plaintiff’s Action for want of prosecution and delay, pursuant to Rules 4.31 and 4.33. The Plaintiff’s Next Friend acknowledged that nothing had been done to significantly advance the Action in the past three years, but argued the Court should exercise its discretion to allow continuation of the Action due to the Plaintiff’s psychological issues interfering with his ability to advance the Action. The Plaintiff also argued that correspondence between counsel constituted a Stay of Proceedings. The Plaintiff referred to a number of the Foundational Rules in support of the argument that the Court had discretion despite the mandatory language of Rule 4.33.

The Defendant argued that the Court had no discretion to refuse to dismiss the Plaintiff’s Claim, as the language in Rule 4.33(1) is mandatory. The Defendant also argued that the Action should be dismissed pursuant to Rule 4.31: continuation of the Action would result in serious prejudice to the Defendant, particularly due to witnesses moving and passing away, and the Defendant’s diminishing institutional memory of the matters over time.

The Court referred to a number of cases which confirmed that Rule 4.33 was intended to be a “bright line rule”: the Rule is absolute and mandatory, and there is no discretion to refuse a dismissal where the delay has been established under the Rule. The Court held that this mandatory requirement is also consistent with the purpose of the Rules. Goss J. then considered whether the Court could alter or amend Rule 4.33(1) pursuant to its power under Rule 1.6, which states that the Court of Queen’s Bench or Court of Appeal may alter and amend any of the Rules or make additional Rules. Noting that the Court must be careful when invoking this power, Goss J. held that Rule 4.33 does not invite the exercise of such power, given its mandatory and directive language and the clear exceptions provided in the Rule.

Goss J. noted that the Court may alleviate the effect of some Rules where there is sufficient evidence to suggest it is appropriate to do so in the circumstances. However, there was insufficient evidence of the Plaintiff’s psychological issues and inability to participate in the Action to warrant amending, altering or adding to Rule 4.33(1). Goss J. further noted that an agreement to delay under Rule 4.33(1)(a) needs to be express and demonstrate a mutual intention among the parties. The correspondence between counsel failed to establish such an agreement. The Court granted the Defendant’s Application to dismiss the Action.

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