This
motion,
heard
August
8,
1994,
to
dismiss
for
want
of
prosecution
under
Rule
440,
or
alternatively,
to
stay
the
action
under
section
50
of
the
Federal
Court
Act
in
the
event
that
Rule
440
does
not
apply,
arises
out
of
a
Tax
Court
of
Canada
Judgment
of
December
17,
1987,
with
which
the
plaintiff
took
issue,
filing
her
statement
of
claim
on
April
27,
1988.
The
initial
Tax
Court
proceedings
arise
out
of
a
reassessment
by
the
Minister
of
National
Revenue
for
the
1982
taxation
year.
Following
the
Tax
Court
hearing
in
1987,
Revenue
Canada
was
tardy
in
making
the
refund
ordered
by
the
Tax
Court.
These
time
elements
have,
understandably,
been
a
source
of
frustration.
However,
events
which
occurred
before
the
issuance
of
the
statement
of
claim
on
April
27,
1988,
are
not
relevant
to
the
present
motion:
Department
of
Transport
v.
Chris
Smaller
(Transport)
Ltd.,
[1989]
1
A.C.
1197
(H.L.).
Background
The
plaintiff,
as
part
of
the
explanation
for
the
delay,
should
the
delay
be
found
inordinate,
submits
that
the
defendant
is
responsible
for
some
of
that
delay.
A
chronology
of
relevant
events,
from
the
issuance
of
the
statement
of
claim
through
to
the
hearing
of
this
motion,
includes:
1.
April
28,
1988:
statement
of
claim
appealing
the
decision
of
Madame
Justice
Kempo
of
the
Canada
Tax
Court
filed;
2.
June
30,
1988:
Defence
filed
by
James
Thomson,
president
of
Ichi
Canada
Ltd.,
at
which
time
the
Registry
Officer
brought
to
Mr.
Thomson's
attention
Rule
300(2)
which
required
a
company
to
be
represented
by
a
solicitor;
3.
September
5,
1989:
plaintiff
filed
notice
of
intention
to
proceed,
and
objected
both
to
the
fact
that
the
defendant
was
not
represented
by
a
solicitor
and
that
the
defence
had
never
been
served
on
the
plaintiff;
4.
September
12,
1989:
plaintiff
filed
notice
of
motion
to
strike
out
the
statement
of
claim
on
the
grounds
that
the
company
was
not
represented
by
a
solicitor,
that
the
defence
had
not
been
served
and
that
these
and
other
factors
constituted
an
abuse
of
process;
5.
October
27,
1989:
defendant
filed
notice
of
appointment
of
Solicitor;
6.
October
30,
1989:
motion
to
strike
out
adjourned
sine
die
on
consent;
7.
November
24,
1989
to
July
24,
1990:
Correspondence
and
telephone
attendances
between
counsel
for
the
parties
in
connection
with
possible
amendment
to
the
defence
with
counsel
for
the
defendant
advising,
July
24,
1990,
that
she
was
still
awaiting
information
from
her
client;
8.
November
14,
1990:
plaintiff
filed
notice
of
intention
to
proceed;
9.
November
19,
1990
and
April
25,
1991:
Correspondence
between
counsel
for
the
parties
in
connection
with
plaintiff's
list
of
documents;
10.
November
25,
1990:
Counsel
for
the
plaintiff
indicated
she
was
ready
to
proceed
to
trial
and
made
inquiries
concerning
available
trial
dates;
11.
November
29,
1990:
plaintiff
filed
list
of
documents;
12.
April
25,1991:
Counsel
for
the
plaintiff
indicated
she
was
ready
to
proceed
to
trial
and
made
inquiries
concerning
available
trial
dates;
13.
May
10,
1991:
plaintiff
filed
notice
of
motion
seeking
various
relief
including
to
strike
out
the
defence,
the
defendant
having
failed
to
provide
an
affidavit
of
documents;
14,
May
24,
1991:
Counsel
for
the
defendant
advised
counsel
for
the
plaintiff
that
he
had
received
the
defendant's
documents;
15.
May
27,
1991:
defendant
filed
notice
to
inspect
documents;
16.
May
31,
1991:
defendant
filed
supplemental
affidavit
of
documents;
17.
August
20,
1991:
James
Thomson,
principle
of
the
defendant,
examined
for
discovery;
18.
August
22,
1991:
examination
for
discovery
of
Chuck
Fong,
of
the
Ministry
of
National
Revenue,
adjourned
when
the
defendant's
solicitor
was
unable
to
give
an
undertaking
that
the
evidence
in
these
proceedings
would
not
be
used
in
collateral
proceedings;
19.
September
19,
1991:
Madame
Justice
Reed
ruled
that
an
implied
undertaking
automatically
arose
so
that
information
obtained
on
discovery
may
be
used
only
for
the
purpose
of
the
litigation
for
which
it
is
obtained;
20.
October
22,
1991:
Chuck
Fong
examined
for
discovery
on
behalf
of
the
plaintiff;
21.
July
7,
1992:
letter
to
counsel
for
the
plaintiff
to
counsel
for
the
defendant
relating
to
waivers
for
the
defendant's
farm
losses
for
1989
and
1990;
22.
August
19,
1992:
letter
from
counsel
for
the
plaintiff
to
counsel
for
the
defendant
requesting
answers
outstanding
from
James
Thomson
discovery;
23.
December
1992:
file
transferred
from
Vancouver
to
the
Department
of
Justice,
Ottawa;
24.
August
11,
1993:
counsel
for
the
defendant
informed
of
the
transfer;
25.
August
25,
1993:
letter
from
counsel
for
the
defendant
to
counsel
for
the
plaintiff
setting
out
that
the
next
step
appeared
to
be
an
exchange
of
the
outstanding
discovery
information
and
suggesting
a
meeting
between
the
defendant's
James
Thomson
and
a
representative
of
Revenue
Canada;
26.
October
1993:
brief
telephone
exchange;
27.
May
24,
1994:
plaintiff’s
counsel
received
answers
to
discovery
questions
from
Chuck
Fong;
28.
July
6,
1994:
letter
from
counsel
for
the
defendant
requesting
that
counsel
for
the
plaintiff
take
steps,
within
two
weeks,
to
set
the
matter
down
for
trial
with
the
alternative
being
an
application
to
dismiss
for
want
of
prosecution;
29.
July
8,
1994:
following
telephone
conversations
between
counsel
for
the
parties,
counsel
for
the
defendant
withdrew
the
two
weeks'
notice
and
advised
she
would
be
applying
to
dismiss
the
action
for
want
of
prosecution;
30.
July
20,
1994:
both
counsel
exchange
responses
to
the
outstanding
examination
for
discovery
questions;
31.
July
28,
1994:
counsel
for
the
plaintiff
sent
a
joint
application
for
trial
to
counsel
for
the
defendant;
32.
July
28,
1994:
defendant
filed
a
motion
to
dismiss
for
want
of
prosecution;
These
are
not
all
of
the
events
that
took
place
over
the
past
six
years,
however
they
indicate
the
general
trend
of
the
litigation.
The
Crown
did
not
move
matters
along
at
a
regular
pace,
however
from
time
to
time
the
ball
was
certainly
in
the
defendant's
court.
James
Thomson,
president
of
the
defendant
company,
set
out
in
his
affidavit
that
the
company
found
it
difficult
to
do
business
and
to
raise
money
economically
by
reason
of
both
the
outstanding
litigation
and,
at
an
earlier
stage,
collection
pressure
from
Revenue
Canada.
However,
to
be
fair,
some
of
the
difficulties
experienced
in
doing
business
were
as
a
result
of
personal
tax
problems
which
concerned
the
defendant’s
bankers,
in
that
Mr.
Thomson
was
apparently
a
guarantor
of
the
defendant
company.
In
addition,
counsel
for
the
plaintiff,
on
cross
examination,
made
substantial
inroads
against
various
assertions
in
Mr.
Thomson's
affidavit
evidence,
including
as
to
business
prejudice.
Analysis
There
are
two
preliminary
matters
to
be
dealt
with.
First,
the
plaintiff
submits
that
the
defendant
did
not
give
proper
notice
of
the
want
of
prosecution
motion
and
second,
the
weight
of
the
defendant's
affidavit
evidence.
I.
Notice
under
Rule
440(2)
Rule
440(2)
requires
service
of
two
weeks’
written
notice
to
the
plaintiff
that
II
.
unless
the
plaintiff
takes
the
necessary
steps
to
bring
the
action
on
for
trial.
.
."
an
application
for
dismissal
for
want
of
prosecution
will
be
made.
The
plaintiff
contends
that
the
defendant
did
not
give
proper
notice.
On
July
6,
1994,
the
solicitor
for
the
defendant
sent
notice
by
facsimile
to
the
solicitor
for
the
plaintiff.
On
July
8,
seemingly
without
any
explanation,
the
solicitor
for
the
defendant
wrote
to
the
solicitor
for
the
plaintiff
to
say,
in
part:
I
have
instructions
to
advise
you
therefore
that
the
defendant
will
be
applying
to
the
Court
to
dismiss
this
action
for
want
of
prosecution.
Please
let
me
know
whether
anyone
else
from
the
Department
of
Justice
will
be
available
on
Monday,
July
18,
1994.
In
effect,
the
defendant's
solicitor
withdrew
the
notice
to
the
plaintiff
to
set
down
the
action
in
favour
of
summarily
proceeding
with
this
motion.
It
may
be
that
the
solicitor
for
the
defendant
was
inexperienced
and
improperly
acceded
to
instructions
from
her
client.
Counsel
for
the
defendant
was
left
in
an
embarrassing
position
by
the
actions
of
her
instructing
solicitor.
The
solicitor
for
the
plaintiff,
in
a
reply
of
July
11,
was
obviously
upset.
However,
overall,
his
client
has
not
been
prejudiced
and
while
the
procedure
by
which
notice
was
given
was
at
least
questionable,
I
am
not
about
to
decide
the
point
and
possibly
put
the
defendant
into
a
position
to
bring
the
motion
again,
properly,
and
require
everyone
to
go
through
the
exercise
again.
Rather,
a
more
constructive
approach
is
to
deal
with
the
motion
on
the
merits
so
that
both
sides
know
where
they
stand.
Il.
Affidavit
Evidence
I
have
some
difficulty
with
the
defendant's
affidavit
evidence.
As
I
noted
earlier
the
plaintiff's
counsel
made
substantial
inroads
during
the
cross-examination
of
Mr.
Thomson
on
his
affidavit.
The
affidavit
has
been
rather
casually
drafted.
On
several
occasions
during
the
cross-examination
Mr.
Thomson
acknowledged
that
he
had
failed
to
review
or
had
not
read
material
in
or
attached
to
the
affidavit.
The
cross-examination
turned
up
a
number
of
points
on
which
Mr.
Thomson
acknowledged
the
affidavit
was'-
incorrect.
All
of
this
goes
to
the
weight
of
Mr.
Thomson's
evidence.
In
addition,
where
there
is
a
difference
in
views
I
have
accepted
the
plaintiff’s
evidence.
111.
Dismissal
for
Want
of
Prosecution
Counsel
for
both
parties
acknowledge
that
examinations
for
discovery
have
been
completed.
The
parties
are
now
in
a
position
to
apply
for
a
trial
date.
While
one
of
the
purposes
of
the
two-week
notice
provision,
under
Rule
440(2)
may
be
to
focus
the
attention
of
the
plaintiff
on
the
delays
and
to
give
the
plaintiff
an
opportunity
to
rectify
any
delay,
that
is
not
a
complete
answer.
Rather
I
must
consider
first;
whether
there
has
been
an
inordinate
delay;
second,
if
there
has
been
inordinate
delay,
is
there
a
credible
excuse
and
in
this
the
plaintiff
is
faced
with
the
burden
of
displacing
the
natural
inference
that
it
is
inexcusable;
and
third,
has
the
defendant
been
seriously
prejudiced
by
the
delay,
either
between
themselves
and
the
plaintiff,
or
between
themselves
and
third
parties,
with
a
general
rule
that
the
longer
the
delay,
the
greater
the
possibility
of
prejudice
at
the
trial:
see
Allen
v.
Sir
Alfred
McAlpine
&
Sons
Ltd.,
[1968]
2
Q.B.
229
at
pages
268-69,
and
Canada
v.
Aqua-Gem
Investments
Ltd.,
[1993]
1
C.T.C.
186,
93
D.T.C.
5080
(F.C.A.),
where
this
test
is
set
out
in
full.
There
are
two
issues
to
be
resolved,
in
applying
the
test
for
dismissal
for
want
of
prosecution.
First,
under
the
circumstances,
is
it
still
possible
to
have
a
fair
trial
after
the
delay:
Nichols
v.
Canada
(1990),
36
F.T.R.
77
at
page
78.
Second
and
alternately,
the
prejudice
does
not
have
to
be
the
inability
to
have
a
fair
trial,
but
rather
may
be
a
business
prejudice
such
as
might
be
caused
to
a
small
business
with
a
large
claim
hanging
over
it,
not,
except
in
exceptional
cases,
merely
from
the
anxiety
of
a
pending
proceeding,
but
rather
from
some
form
of
a
financial
burden
such
as
a
limit
on
ability
to
raise
money:
Department
of
Transport
v.
Chris
Smaller
Ltd.,
supra,
at
page
1208
and
following.
A.
Delay
In
considering
delay
I
should
look
at
the
total
elapsed
time,
however
I
should
not
consider
the
time
that
has
elapsed
between
the
accrual
of
the
cause
of
action
and
commencement
of
proceedings:
see
Department
of
Transport
v.
Chris
Smaller
Ltd.,
supra,
generally,
and
particularly
at
page
1206.
In
this
instance,
just
over
six
years
have
gone
by
since
the
action
was
commenced.
The
defendant
points
out
that
there
was
a
gap
in
proceedings,
albeit
with
some
intervening
correspondence,
between
October
1991,
the
date
of
the
discovery
of
Mr.
Fong,
and
the
present
motion,
a
delay
of
just
under
three
years
and
this,
coupled
with
the
six
years
that
it
has
taken
to
get
the
case
to
a
stage
where
the
parties
might
apply
for
a
trial
date,
is
inordinate
delay.
The
plaintiff
submits
that
the
first
eighteen
months
the
defendant
had
no
solicitor
and
brought
that
delay
upon
themselves.
Further,
there
was
another
delay,
of
just
over
half
a
year,
while
the
lawyer
for
the
defendants
was
still
awaiting
information
from
her
client.
Then
the
plaintiff
had
to
bring
on
a
motion
to
force
production
of
documents
in
May
of
1991.
As
a
result,
during
much
of
the
first
three
years,
the
plaintiff
had
to
take
steps
to
move
along
a
reluctant
defendant.
However,
it
is
not
for
the
defendant
to
move
along
an
action:
I
do
not
agree
that
in
all
cases
a
defendant
must
attempt
to
spur
the
plaintiff
on
or
lose
his
right
to
successfully
apply
for
dismissal
of
the
action
for
want
of
prosecution.
.
.
.
I
do
not
wish
to
be
taken
as
endeavouring
to
discourage
solicitors
or
defendants
from
giving
notice
or
collaborating
with
solicitors
for
plaintiffs
before
embarking
upon
a
motion
for
dismissal
of
the
action.
I
simply
wish
to
make
it
clear
that
their
failure
to
do
so
will
not
necessarily
preclude
them
from
succeeding
on
a
motion
if
one
is
brought:
Farrar
v.
McMullen,
[1971]
1
O.R.
709
at
page
711.
However
the
defendant's
conduct,
which
I
have
considered
when
dealing
with
prejudice,
is
certainly
always
relevant:
Aqua-Gem,
supra,
at
page
204
(D.T.C.
297).
The
delay,
looking
at
the
proceedings
overall,
has
been
inordinate.
B.
Excuse
for
Delay
The
plaintiff,
during
the
cross-examination
of
James
Thomson,
suggested
that
the
five-page
letter
of
July
11,
1994,
from
the
plaintiff's
solicitor
to
the
defendant's
solicitor,
provides
an
answer
to
the
delay.
Among
other
things,
the
letter
catalogues
delays
on
the
defendant's
part.
However,
the
letter
does
not
provide
any
credible
excuses.
I
have
considered
the
plaintiff's
affidavit
material.
Among
the
factors
set
out
in
that
affidavit
is
the
transfer
of
the
file
from
the
Vancouver
Department
of
Justice
to
the
Department
of
Justice
in
Ottawa.
Nothing
in
the
affidavit
provides
a
credible
reason
for
the
delay.
The
defendant
may
have
contributed
to
the
delay
and
to
its
own
ultimate
prejudice,
however
the
plaintiff
should
have
taken
steps
to
keep
proceedings
on
schedule.
The
delay
is
inexcusable.
C.
Prejudice
I
have
determined
that
there
has
been
delay
without
a
credible
excuse.
I
now
turn
to
consider
whether
the
defendant
has
been
prejudiced,
either
as
to
its
ability
to
have
a
fair
trial,
or
in
its
ability
to
carry
on
business.
The
defendant
says,
by
the
affidavit
evidence
of
James
Thomson,
that
it
is
prejudiced
in
that
it
has
lost
contact
with
potential
witnesses
and
that
another
potential
witness,
one
of
the
defendant's
horse
trainers,
died
in
1993.
However
when
Mr.
Thomson
was
examined
on
his
affidavit
he
conceded
that
he
had
taken
no
steps
to
try
to
locate
those
witnesses
to
see
if
in
fact
they
were
lost,
or
if
their
memories
had
faded.
He
also
conceded
that
the
defendant
could
possibly
get
along
without
the
deceased
trainer
as
a
witness.
Indeed,
none
of
the
trainers
were
called
as
witnesses
in
the
Tax
Court
proceedings.
I
am
not
prepared
to
say
that
the
mere
passage
of
time
would
likely
have
dimmed
the
recollections
of
witnesses.
There
must
be
something
more
specific.
Turning
to
the
second
branch
of
the
test,
prejudice
in
its
ability
to
carry
on
business,
the
defendant
raises
a
number
of
points.
First,
there
is
a
general
allegation
as
to
lack
of
accounting
which
has
affected
the
defendant's
tax
position
after
1982.
Just
what
are
the
mechanics
of
this
are
unclear,
both
in
the
affidavit
and
in
the
cross-examination
on
the
affidavit.
The
defendant
has
not
satisfied
me,
in
this
respect,
as
to
prejudice.
Second,
if
the
defendant
is
unsuccessful
it
will
have
to
repay
the
plaintiff
some
$33,000
and,
in
addition,
pay
just
over
$108,000
in
interest.
The
defendant
says
this
is
prejudicial
and
refers
to
a
case
involving
a
guarantee,
Bank
of
Montreal
v.
Csincsik
(1992),
9
C.P.C.
(3d)
137
(Master
Bolton
in
B.C.
Supreme
Court
chambers).
In
that
case
the
guarantor
was
at
risk
of
being
called
upon
to
pay
contractual
interest
at
17
per
cent,
as
against
current
interest
in
the
seven
per
cent
range.
In
the
present
instance,
the
interest
calculation
is
at
comtemporaneous
floating
rates.
The
defendant
has
the
use
of
the
refund
money
from
May
of
1988
to
date.
In
addition,
there
is
an
apparent
error
in
the
interest
calculation,
filed
as
an
affidavit
exhibit
by
the
defendant,
in
that
interest
is
calculated
from
April
of
1983,
rather
than
from
the
date
of
the
tax
refund
at
dispute
in
these
proceedings,
May
1989.
The
outcome
in
the
Csincsik
case
may
have
been
influenced
by
a
hard
and
unfair
interest
rate.
Counsel
for
the
defendant
submits
that
although
the
defendant
has
had
the
use
of
the
tax
refund
since
1989,
that
is
not
an
answer
to
the
fact
that
the
defendant
Will
have
to
pay
interest
on
that
money
if
it
loses
the
present
appeal:
Fritz
v.
M.N.R.,
[1993]
1
C.T.C.
370,
93
D.T.C.
5132,
at
page
372.
In
the
Fritz
case,
interest
was
just
one
of
several
prejudicial
aspects.
The
time
during
which
interest
was
payable,
in
the
Fritz
case,
was
several
years
longer.
In
the
present
instance
the
defendant,
knowing
that
the
appeal
was
in
progress,
could
have
left
the
1989
refund
with
Revenue
Canada.
Finally,
there
must
be
a
balancing
of
interests:
while
it
is
not
up
to
the
defendant
to
move
the
action
along,
the
defendant
contributed
tothe
delays,
including
by
failing
for
1'/2
years,
to
appoint
a
solicitor;
failing
to
give
his
solicitor
instructions
during
a
seven
month
period
when
the
plaintiff
was
awaitin
advice
from
the
defendant's
solicitor
as
to
whether
the
defence
would
be
amended;
delaying
some
six
months
in
producing
documents
and
in
ignoring
the
outstanding
examination
for
discovery
undertaking
for
about
three
years.
These
are
not
the
actions
of
a
defendant
being
prejudiced
by
delay.
Indeed,
in
Ricci
et
al.
v.
Ricci
Fashion
International
Ltd.
(1985),
1
C.P.R.
(3d)
142,
the
Court
was
not
prepared
to
dismiss
for
want
of
prosecution
where
the
defendants
were
in
default
in
certain
undertakings
from
an
earlier
discovery.
I
am
not
convinced
the
defendant
has
been
prejudiced
by
reason
of
having
to
pay
interest
in
this
instance.
Mr.
Thomson's
affidavit
evidence
is
that
these
proceedings
cost
the
defendant
an
extra
$6,000
per
year
in
bank
charges.
When
cross-examined
on
the
affidavit,
he
acknowledged
that
the
extra
bank
charges
were
for
about
three
years
from
1987
to
1990.
The
plaintiff's
affidavit
material
notes
that
the
Minister
of
National
Revenue
properly
took
collection
actions
in
1987
as
a
result
of
collection
proceedings
either
before
the
Tax
Court
decision
or
for
other
years.
Counsel
for
the
defendant
also
made
reference
to
Revenue
Canada
collection
proceedings
against
James
Thomson
personally,
which
made
it
difficult
for
the
company
to
operate:
this
is
a
separate
matter
and
is
not
relevant.
The
defendant
may
have
had
difficulties
in
doing
business.
However
there
is
still
the
discretion
to
decide
”.
.
.whether
or
not
on
balance
justice
demands
the
action
should
be
dismissed.":
Allen
v.
Sir
Alfred
McAlpine
&
Sons
Ltd.,
[1969]
1
All
E.R.
543,
at
page
562
(C.A.).
In
the
present
instance
the
defendant
is
not
without
blame.
In
Rae
Import
Corp.
v.
Federal
Pacific
Lakes
Line
(1984),
46
C.P.C.
30,
Jerome
A.C.J.,
was
faced
with
this
sort
of
situation.
He
referred
to
an
unreported
decision
in
Greening
&
Cable
Co.
v.
Poseidon
Lines
at
page
32:
Besides,
one
cannot
but
realize
that
the
defendants
and
their
solicitors
deserve
some
blame
for
the
incessant
procrastination
that
is
to
be
deplored
here
and
that,
until
1976
at
least,
they
have
more
or
less
condoned
the
attitude
of
the
plaintiffs.
For
these
reasons,
I
have
finally
come
to
the
conclusion
that,
however
inexcusable
and
inordinate
the
delay,
a
last
chance
should
be
given
to
the
plaintiffs.
In
the
Rae
Import
case
the
judge
was
satisfied
that
”.
.
.
both
sides
were
content
to
allow
the
matter
to
unfold
at
a
leisurely
pace
until
this
motion
was
brought
on"
(page
33).
In
the
present
instance
the
defendant
contributed
to
its
problems
by
various
delays.
I
am
not
convinced
that
there
has
been
real
prejudice.
The
motion
is
dismissed.
IV.
Stay
of
Proceedings
In
the
motion
and
during
argument
counsel
for
the
defendant
submitted
that
should
I
find
both
unexcused
delay
and
prejudice,
but
could
not
dismiss
the
action
for
want
of
prosecution
by
reason
of
recent
steps
taken
by
the
plaintiff
to
prosecute
the
action,
the
action
should
then
be
stayed:
see
for
example
Fritz,
supra.
In
that
the
defendant's
motion
for
dismissal
for
want
of
prosecution
has
been
denied,
not
for
a
failure
to
come
within
Rule
440,
but
rather
on
its
merits,
I
do
not
need
to
consider
the
alternative.
Costs
and
proceeding
with
the
action
In
Rae
Import
Corp,
supra,
Associate
Chief
Justice
Jerome
considered
a
motion
to
dismiss
the
action
for
delay.
He
commented
upon
his
reluctance
to
deprive
plaintiffs
of
their
substantive
rights
on
procedural
grounds
at
page
31:
It
must
never
appear
that
the
Court
accepts
or
encourages
such
delays
and
yet
in
complex
litigation,
they
can
scarcely
be
considered
exceptional.
Where
they
do
occur,
it
is
almost
invariably
attributable
to
solicitors
rather
than
clients,
and
more
often
than
not,
the
result
of
acquiescence
on
the
part
of
both
counsel.
There
will,
of
course,
be
those
rare
examples
when
the
delays
are
inordinate,
where
they
are
caused
by
the
plaintiff
alone
and
where
their
effect
is
to
deprive
the
defendant
of
the
proper
opportunity
to
present
his
case
before
the
Court.
In
such
circumstances,
it
may
be
necessary
to
foreclose
the
right
of
the
plaintiff
to
go
to
trial
by
dismissal
for
want
of
prosecution.
In
their
absence,
it
seems
far
more
appropriate
to
compensate
by
way
of
costs,
and
where
possible
to
expedite
the
trial,
than
to
risk
final
determination
‘of
issues
because
of
procedural
developments
for
which
the
parties
may
not
be
directly
responsible.
In
the
present
instance,
it
would
appear
that
the
slow
pace
of
the
proceeding
came
about
through
inactivity
on
the
part
of
both
sets
of
clients
and
their
lawyers.
As
to
the
motion
itself,
it
was
brought
about
by
a
delay
on
the
part
of
the
plaintiff,
however
the
plaintiff
made
substantial
inroads
in
cross
examination
of
James
Thomson
on
his
affidavit.
The
defendant
did
not
succeed
on
its
motion.
However
one
result
of
the
motion
appears
to
have
been
the
completion
of
examinations
for
discovery
in
very
short
order.
By
reason
of
what
I
would
view
as
mixed
success,
I
am
not
prepared
to
either
award
costs
in
favour
of
the
plaintiff
or
to
compensate
the
defendant.
Each
side
will
bear
their
own
costs
of
the
motion.
The
parties
have
acknowledged
that
discoveries
have
been
completed.
There
is
nothing
to
stop
them
from
proceeding
to
trial.
I
have
therefore
ordered
that
the.
parties
either
file
a
joint
application
for
trial
within
ten
days,
or
unilateral
applications
for
trial,
pursuant
to
Rule
483(5),
within
15
days.
Order
accordingly.
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