In This Case: The Prejudicial Delay Rule, Pt. 2

By Ian Carruthers and Noel Harper 

DISCLAIMER: This blog is intended to inform the reader about how the law was applied in a particular case. It should not be taken as advice regarding the outcome of any other case, even one that may have similar facts. The Court’s decision will depend on the facts of each case. Please call 1-844-210-9511 or visit carrutherslaw.ca if you would like to know more about your specific case. 

Welcome back from the Thanksgiving long weekend – we hope it was one of rest and good times with friends and family. We have returned with our second example of how Rule 4.31, the prejudicial delay rule, might apply to a court case. This time around, the plaintiff brought an action against the defendant for injuries caused during a hockey game. Here is the chronology of the case as it unfolded: 

The plaintiff issued a statement of claim on February 22, 2012, and the defendant’s statement of defence was filed on April 5. On May 17, the plaintiff served an affidavit of records on the defendant, who subsequently served a blank affidavit of records on the plaintiff on October 5.  

Both individuals were questioned on February 4, 2013, on which date the defendant amended his statement of defence. More than two years later, on March 9, 2015, counsel for the plaintiff provided answers to undertakings given at the February 2013 questioning and made a without-prejudice offer to settle. Counsel followed up on this offer on June 15, 2015, asking for a response from the defendant. On June 18, defendant’s counsel responded that they were given no instructions to settle.  

On December 15, plaintiff’s counsel sent a notice to the defendant to admit facts and information necessary to complete a Form 37. Defendant’s counsel replied on December 17 and suggested a Judicial Dispute Resolution (JDR), while giving no information for the Form 37.  

On January 21, 2016, plaintiff’s counsel sent over four possible dates for a JDR. On March 7, defendant’s counsel indicated that a JDR might not be appropriate after all and confirmed that their client would not agree to one on April 4, suggesting binding arbitration.  

The plaintiff’s counsel became ill between late 2016 and early 2017 and took time off work. In January 2018, approximately two years after any action had taken place in the litigation, the plaintiff’s file was transferred to a new lawyer at the same firm.  

On January 25, 2018, plaintiff’s new counsel asked defendant’s counsel about entering into a litigation plan. It was rejected on February 16, and as such, plaintiff’s counsel applied for the court to impose one. On February 26, the defendant cross-applied under Rule 4.31 and Rule 4.33 for orders dismissing the action. 

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Should the action be dismissed for delay pursuant to Rule 4.31?

Come back on Friday for the solution and a brief explanation of the case in question.