Multibond Inc. v. Duracoat Powder Manufacturing Inc.
T-1703-94
McGillis J.
4/10/99
11 pp.
Appeal from decision dismissing action for delay-Action for trade mark infringement brought by plaintiff (appellant) in July 1994-Defendant filing statement of defence in September 1994-No steps taken by plaintiff to pursue action-On September 10, 1998, Court issued notice of status review, requiring plaintiff to show cause why action should not be dismissed for delay-Defendant bringing motion, under r. 167, to dismiss action by reason of plaintiff's undue delay in prosecuting it-Lafrenière P. granting motion to dismiss action-Plaintiff failing to provide reasonable explanation to justify inordinate delay of four years-Whether action should be dismissed by reason of delay-New r. 167 providing for dismissal on ground of undue delay in prosecuting action-Burden on plaintiff to satisfy Court proceeding should continue despite delay-On status review in which Court has required plaintiff to show cause under r. 382(2)(a), only relevant consideration whether plaintiff has justified delay, proposed plan for moving case forward-Giles A.S.P. erred by requiring defendant to bring motion under r. 167 to dismiss action on ground of undue delay, by failing to exercise discretion in manner permitted by r. 382(2)(a)-In considering motion to dismiss action for want of prosecution under previous Federal Court Rules, Court consistently applied following test: whether inordinate delay, whether delay inexcusable, whether defendant likely to be seriously prejudiced by delay-Such criteria continued to apply to motion to dismiss action for undue delay under r. 167-Plaintiff failing, on status review, to provide reasonable explanation to justify inordinate delay-A.S.P. should have summarily dismissed action for delay-Matter should be treated as status review-Considerations relevant to exercise of discretion on status review should apply-Plaintiff should not be permitted to continue with action, given failure to provide reasonable explanation to justify inordinate four-year delay-Defendant likely to suffer serious prejudice by reason of plaintiff's inordinate, unjustified delay-Appeal dismissed-Federal Court Rules, 1998, SOR/98-106, rr. 167, 382.