Hargrave
P.
—
I
initially
dealt
with
this
motion
in
writing
pursuant
to
Rule
324,
to
strike
out
the
action
for
want
of
prosecution,
by
granting
that
relief
to
the
defendant
on
June
23,
1995,
the
plaintiff
filing
no
material.
Subsequently,
the
plaintiff
convinced
me
that
I
ought
to
reconsider
the
order
as
the
defendant
had
not
served
the
plaintiff
with
the
required
letter,
under
Rule
324(2),
requesting
the
motion
be
considered
without
personal
appearance,
all
of
which
is
more
fully
set
out
in
reasons
of
August
9,
1995.
As
a
result
of
the
reconsideration
I
allowed
the
plaintiff
to
file
material
in
response
to
the
Crown’s
motion
to
strike
out,
explaining
to
the
plaintiff,
at
a
contemporaneous
hearing
of
an
application
that
I
took
to
be
for
an
oral
hearing
of
the
present
motion,
that
it
was
for
him
to
justify
his
delay
in
prosecuting
the
action.
The
action
to
date
This
action
arises
out
of
the
plaintiffs
1978
through
1982
taxation
years
and
notices
of
assessment
and
reassessment
in
1986,
1987
and
1988.
The
Tax
Court
of
Canada
gave
judgment
on
March
19,
1992.
The
present
statement
of
claim
was
filed
June
16,
1992.
The
defence
was
filed
September
15,
1992,
and
amended
October
9,
1992.
Nothing
further
occurred,
save
requests
by
the
defendant
for
the
plaintiffs
affidavit
of
documents
and
one
written
response
from
the
plaintiff,
in
November
of
1993,
saying
that
he
was
working
on
the
affidavit.
The
plaintiff
has
had
notice
of
the
defendant’s
intent
to
move
to
strike
out
the
statement
of
claim
since
April
of
this
year,
but
has
taken
no
steps
in
the
proceeding
other
than
to
obtain
reconsideration
of
the
June
23,
1995,
order
striking
out
the
action
and
a
motion
heard
October
23,
1995,
as
to
the
procedure
of
dealing
with
the
present
motion.
During
the
interval
from
April
1995,
to
the
present,
I
would
have
expected
a
diligent
and
serious
plaintiff
to
take
steps
to
move
the
action
along.
Consideration
The
three
criteria
to
dismiss
an
action
for
want
of
prosecution
have
been
clearly
set
out
in
many
cases,
for
example
Patex
Snowmobiles
Ltd.
v.
Bombardier
Ltd.
(1991),
48
F.T.R.
221,
37
C.P.R.
(3d)
467,
affirmed
(1993),
48
C.P.R.
(3d)
555,
153
N.R.
235
(F.C.A.)
and
Nichols
v.
Canada
(1990),
36
F.T.R.
77.
The
criteria
are
that:
1.
There
has
been
inordinate
delay;
2.
The
delay
is
inexcusable;
and
3.
The
defendants
have
been
seriously
prejudiced
by
the
delay.
In
initially
striking
out
the
statement
of
claim,
June
23,
1995,
I
had
concluded,
taking
into
account
all
of
the
circumstances,
both
that
there
had
been
inordinate
delay
and
that
the
delay
prejudiced
the
defendant
to
the
extent
that
the
action
ought
to
be
struck
out.
As
to
the
excuse
for
the
delay,
a
large
part
of
the
plaintiffs
affidavit
material,
including
reference
to
his
busy
schedule,
is
either
irrelevant
or
argumentative.
However,
the
plaintiffs
affidavit
contains
an
honest
admission
that
he
has
not
pushed
the
case
and
indicates
that
he
has
suffered
from
chronic
ill-health,
at
least
during
the
period
January
1993
through
May
1995.
In
Chin
v.
Canada
(Minister
of
Employment
and
Immigration)
(1994),
69
F.T.R.
77,
Madame
Justice
Reed
gave
her
views
on
what
is
perhaps
an
issue
analogous
to
excuse
for
delay,
acceptable
reasons
for
extension
of
time
page
80:
[8]
On
what
grounds
then
do
I
grant
an
extension
of
time.
I
have
already
indicated
that,
in
general,
I
am
not
receptive
to
requests
which
are
based
solely
on
the
work
load
counsel
has
undertaken.
When
an
application
for
an
extension
of
time
comes
before
me,
I
look
for
some
reason
for
the
delay
which
is
beyond
the
control
of
counsel
or
the
application,
for
example,
illness
or
some
other
unexpected
or
unanticipated
event.
My
concern,
in
considering
Mr.
Ingram’s
justification
for
the
delay,
ongoing
ill-health,
is
that
at
some
point
the
plaintiff
in
ill-health,
even
the
plaintiff
who
acts
for
himself,
must
get
on
with
the
action.
Mr.
Ingram
says
he
wishes
to
get
on
with
the
action.
However,
he
has
had
some
six
months,
since
first
receiving
notification
of
this
motion
to
strike
out
for
want
of
prosecution
and
during
that
grace
period
he
has
done
nothing
to
pursue
the
matter.
I
would
have
expected
a
plaintiff
in
Mr.
Ingram’s
position
to
exhibit
some
diligence,
for
example,
producing
the
list
of
documents
that
the
Crown
has
been
requesting
for
some
time
and
setting
examinations
for
discovery.
Mr.
Ingram
says
that
he
wishes
a
trial
date
to
be
set
so
that
he
may
get
on
with
the
action.
However,
it
is
for
the
plaintiff
to
move
the
action
along
by
taking
the
necessary
steps
to
proceed
to
the
stage
where
an
application
for
trial
may
be
made.
In
the
case
where
a
plaintiff
acts
for
himself
or
herself,
that
plaintiff
should
have
at
least
a
passing
acquaintance
with
the
Court
rules
and
the
procedure,
particularly
in
the
sense
of
learning
the
steps
to
be
taken
to
bring
an
action
to
trial.
Mr.
Ingram
seems
not
to
have
made
the
effort
to
do
so.
Indeed,
the
plaintiffs
lack
of
action
lends
credence
to
the
defendant’s
interpretation
of
a
comment
by
Mr.
Ingram
that
he
“had
outlasted
most
of
the
players”
and
that
“I
intend
to
outlast
the
rest”.
Depending
upon
the
interpretation
one
places
on
these
words,
they
might
be
described
as
an
abuse
of
process
and
invite
the
striking
out
of
the
action.
The
plaintiff,
in
affidavit
material,
explains
that
the
words
were
taken
out
of
context.
The
plaintiff
says
that
during
the
course
of
these
proceedings
he
has
tried
to
negotiate
a
settlement
and
believed
that
this
negotiation
was
part
of
proceeding
with
the
action.
However,
from
the
material
it
would
seem
that
the
two
sides
were
so
far
apart
that
any
negotiation
was
an
illusion
on
the
part
of
Mr.
Ingram
and
not
an
excuse
for
the
delay.
To
have
an
action
struck
out,
so
as
to
deny
a
day
in
court,
is
a
serious
matter.
It
is
a
premature
final
resolution
which
ought
not
to
be
applied
lightly.
In
this
particular
instance
I
am
inclined
to
accept
as
an
excuse
Mr.
Ingram’s
past
chronic
ill-health
and
to
take
at
face
value
his
assertion
that
he
now
wishes
to
get
on
with
the
matter.
However,
so
as
not
to
further
prejudice
the
defendant,
the
Order
will
include
terms
as
to
lump
sum
costs
to
reflect
Column
IV
of
the
new
Tariff
B,
payable
by
the
plaintiff
to
the
defendant
forthwith,
filing
of
the
plaintiff’s
affidavit
as
to
documents
within
thirty
days
and
completion
of
examinations
for
discovery
and
any
resulting
undertakings
within
one
hundred
twenty
days.
Motion
to
strike
out
denied.
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