PRACTICE |
Dismissal of Proceedings |
Undue Delay |
Seitz v. Canada
T-806-94
2002 FCT 456, Hargrave P.
22/4/02
11 pp.
Case management conference to explain why eight-year-old action, on which nothing substantive happening since examinations for discovery in 1997, should not be dismissed for delay--Action challenging Minister's decision duty owed on importation of goods to Canada--Two approaches to dismissal for delay, want of prosecution--Classic test set out in Nichols v. Canada (1990), 36 F.T.R. 77 (F.C.T.D.): whether inordinate delay, whether delay inexcusable, whether defendants likely to be seriously prejudiced by delay-- Although Nichols decided before 1998 changes to Federal Court Rules, Ruggles v. Fording Coal Ltd. (1998), 152 F.T.R. 96 (F.C.T.D.) holding classic test applied under post-1998 Rules, reflecting r. 167 concept of dismissal for undue delay-- Reasons given by defendant for delay: illness, both plaintiff's own and in family, and death in family--While inordinate delay, and delay not explained, only view of counsel for defendant as to difficulty in now finding witnesses--After such long delay, prejudice often presumed--Second approach more apt in case of lay litigant--Employed in Grovit v. Doctor, [1997] 1 W.L.R. 640 (H.L.): if lay litigant engaging in wholesale disregard for time limits provided in rules of court, breach should be looked at not only from viewpoint of prejudice to litigants, but also in light of abuse, prejudice to due administration of justice--In Arbuthnot Latham Bank Ld. v. Trafalgar Holdings Ltd., [1998] 1 W.L.R. 1426 (C.A.), Court of Appeal of view such abuse of process separate ground for striking out action, not requiring defendant to demonstrate prejudice--Lack of reasonable plan to bringing action to conclusion indicating plaintiff having no real interest in doing so--Action, as conducted, constituting abuse-- Unfair to defendant, to Court whose resources limited, to taxpayers who must pay Court's bills, to other litigants who look to Court for reasonably quick resolution of disputes-- Action dismissed--Federal Court Rules, 1998, SOR/98-106, r. 167.