Date: 19980818
Docket: T-1948-95
BETWEEN:
HAROLD RUGGLES
Plaintiff
- and -
| FORDING COAL LIMITED and JUDY PAULHUS |
Defendants
AND BETWEEN:
FORDING COAL LIMITED
Plaintiff by Counterclaim
(Defendant)
- and -
HAROLD RUGGLES
Defendant by Counterclaim
(Plaintiff)
REASONS FOR ORDER
GIBSON, J.:
[1] The Defendants apply under Rule 167 of the Federal Court Rules, 19981 (the "new Rules") for an order dismissing the Plaintiff's action on the ground that there has been undue delay by the Plaintiff in prosecuting his action. Rule 167 reads as follows:
| 167. The Court may, at any time, on the motion of a party who is not in default of any requirement of these Rules, dismiss a proceeding or impose other sanctions on the ground that there has been undue delay by a plaintiff, applicant or appellant in prosecuting the proceeding. |
The statement of claim initiating this action was filed on September 15, 1995 and was served on counsel for the Defendants on September 26, 1995. The statement of defence and counterclaim was filed and served on counsel for the Plaintiff on October 25, 1995. The reply and defence to counterclaim was filed on October 30, 1995 and served on counsel for the Defendants and the Plaintiff by Counterclaim on November 3, 1995.
[2] Counsel for the Defendants heard nothing further from the Plaintiff until July
of 1997 when counsel received notice pursuant to former Rule 331 A of the Federal Court Rules2 (the "former Rules") of the Plaintiff's intention to proceed with this action. A notice of change of the Plaintiff's solicitors was filed in August of 1997. The Plaintiff's affidavit of documents was filed in January, 1998 and served on the Defendants' solicitor in March of 1998. The Defendants' affidavit of documents was filed on April 15, 1998 and served on the Plaintiff on April 16, 1998. Since that time, the solicitor for the Plaintiff has attempted to make arrangements for examinations for discovery of the Defendants.
[3] Under the former Rules, an application such as the one now before the
Court would have been made under Rule 440 on the basis of "want of prosecution". Under that rule, the test for "want of prosecution" was described by Mr. Justice Dubé in Nichols v. Canada et al.3 in the following terms:
| The classic test to be applied in these matters is threefold: first, whether there has been inordinate delay; secondly, is the delay inexcusable; and thirdly, whether the defendants are likely to be seriously prejudiced by the delay. |
This "classic test" was quoted with approval by the Federal Court of Appeal in Canada v. Aqua-Gem Investments Ltd.4
[4] In Hagwilget Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al.5, Prothonotary Hargrave applied the "classic test" and wrote at page 274:
| A decision to dismiss for want of prosecution ought not to be taken lightly. It is a very stern measure indeed to deprive a party of their day in court. However, in any litigation a plaintiff has duties and a defendant has rights. A duty on the part of a plaintiff is to move the action forward at a proper pace; a defendant has a right to expect a trial of an action without undue delay, so that the defendant may not be prejudiced by being unable to put forward its best case and then, win or lose, certainty and an opportunity to get on with business within a reasonable time. |
| [emphasis added] |
It is worthy of note that in the context of a motion for dismissal for want of prosecution under the former Rules, in applying the "classic test", Prothonotary Hargrave adopted the concept of "undue delay" which is central to Rule 167 of the new Rules.
[5] Before me, counsel for the Plaintiff urged that the "classic test" should continue to apply under Rule 167 of the new Rules and that, against that test, while there had been delay, it was not inordinate, it was excusable on the basis that the Plaintiff twice found it necessary to change solicitors and experienced grave personal difficulties, and there was no evidence of serious prejudice to the Defendants.
[6] Counsel for the Defendants urged that the concept of "undue delay" is
significantly different from the concept of "want of prosecution" and that therefore the "classic test" should no longer apply. Alternatively, counsel urged that, if the "classic test" were to be adopted, on the facts of this matter, there had been inordinate delay, insufficient excuse had been advanced for such delay and the Defendants would be seriously prejudiced.
[7] I am satisfied that Rule 167 of the new Rules, by adopting the terminology
of "undue delay", reflects the "classic test". "Undue delay" is not unlike "inordinate delay" but at the same time implies through the term "undue" the concept of inexcusable delay that results in serious prejudice.
[8] Against the "classic test" then, when applied to the facts of this matter, I
am not satisfied that "undue delay" has been established. In particular, no evidence was presented before me to establish that the Defendants would be seriously prejudiced by the delay in the prosecution of this matter.
[9] I adopt the balancing of interests approach that is reflected in the quotation from Prothonotary Hargrave's reasons in Hagwilget Indian Band v. Canada (Minister of Indian Affairs and Northern Development) quoted above and conclude that, on the facts of this matter, the balance of interests does not warrant dismissing the Plaintiff's action.
[10] That being said, Rule 167 of the new Rules clearly authorizes the Court to "...impose other sanctions on the ground that there has been undue delay by the Plaintiff...". While I do not regard requiring the Plaintiff to move under Rule 384 of the new Rules to have this action managed as a specially managed proceeding to be another sanction, I do regard it as an appropriate condition on the dismissal of the Defendants' motion to ensure that, through the process of case management, now that this action has again come to life, it will proceed with the benefit of case management to secure the just, most expeditious and least expensive determination of the action on its merits6. I have therefore imposed as a condition of dismissing the
Defendants' motion that the Plaintiff apply pursuant to Rule 384 within ten days from the date of my order.
Judge
Ottawa, Ontario
August 18, 1998
__________________
2 C.R.C. [1978], c. 663 (as amended)