Hargrave
P.:—This
action
arises
out
of
a
1979/1980
land
transaction
participated
in
jointly
by
the
plaintiff
and
eight
other
individuals.
The
plaintiff
appealed
the
Revenue
Canada
assessment
to
the
Tax
Court
of
Canada
in
September
of
1984
and
after
a
history
of
delays,
at
least
the
majority
of
which
seemed
to
be
on
the
part
of
the
plaintiff,
Her
Honour
Judge
Lamar
heard
the
matter
and
dismissed
it
from
the
bench
in
June
1991.
The
present
action
was
commenced
November
1991,
with
a
defence
being
filed
in
January
1992.
The
defendant
provided
an
affidavit
of
documents
in
August
1992.
Despite
a
number
of
request,
over
some
two
and
a
half
years,
the
plaintiff
has
not
provided
his
affidavit
of
documents.
Both
from
the
material
filed
by
the
defendant,
which
includes
exchanges
of
correspondence
between
the
plaintiff
and
the
Department
of
Justice
and
from
the
written
representation
of
the
plaintiff,
filed
November
17,
it
appears
that
the
plaintiff
has
been
trying
to
bargain
a
settlement
either
through
his
member
of
Parliament
or
through
the
Deputy
Minister
of
Revenue
and
that
the
present
action
may
well
be
a
delaying
tactic.
Indeed,
the
plaintiff
says
that
he
is
concerned
that
if
these
proceedings
are
dismissed,
Revenue
Canada
will
immediately
start
the
collection
process,
which
will
put
him
in
a
difficult
situation.
However
the
plaintiff,
in
his
written
representations,
says
that
"If
Court
so
desires
I
will
be
willing
to
proceed
with
the
action
immediately
without
waiting
for
a
response
from
Deputy
Minister,
Revenue
Canada."
The
test
for
dismissal
for
want
of
prosecution,
which
has
been
used
many,
times
in
this
Court,
is
that
set
out
in
Allen
v.
Sir
Alfred
McAlpine
&
Sons
Ltd.,
[1968]
2
Q.B.
229,
[1968]
1
All
E.R.
543,
at
page
268
(All
E.R.
561),
which
was
neatly
summarized
by
Mr.
Justice
Dubé
in
Nichols
v.
Canada
(1990),
36
F.T.R.
77
at
page
78:
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.
In
addition
I
have
kept
in
mind
that
delay
may
be
cumulative.
However,
whether
or
not
I
take
the
cumulative
approach
and
include
the
delays
during
the
Tax
Court
proceedings,
or
merely
consider
the
delays
in
the
present
proceedings,
there
has
been
inordinate
delay.
The
plaintiff
offers
no
excuse
for
the
delays
other
than
he
has
been
trying
to
negotiate
a
settlement;
that
he
hopes
that
Revenue
Canada
will
provide
someone
new
for
him
to
negotiate
with;
and
that
delays
have
been
circumstantial,
but
not
intentional
or
inexcusable.
There
has
been
nothing
to
prevent
the
plaintiff
from
both
pursuing
the
present
action
at
a
reasonable
pace
and
trying
to
negotiate
a
settlement
through
political
means
or
otherwise.
The
plaintiff
has
given
no
reasonable
excuse
for
the
delay.
The
onus
is
on
the
defendant
to
show
likely
serious
prejudice
as
a
result
of
the
delay.
Counsel
for
the
defendant
says
there
has
been
prejudice
in
that
the
1979/80
transaction,
which
gave
rise
to
these
proceedings,
involved
the
purchase
and
sale
of
land
held
jointly
by
the
plaintiff
and
eight
other
individuals
and
that
the
time
that
has
passed
since
the
transaction
and
the
number
of
parties
involved
make
it
likely
that
the
Crown
will
be
prejudiced
by
the
plaintiff’s
delay.
In
Canada
v.
Aqua-Gem
Investments
Ltd.,
[1993]
1
C.T.C.
186,
93
D.T.C.
5080,
one
of
the
questions
the
Court
of
Appeal
dealt
with
was
whether
delay,
by
itself,
could
be
prejudicial.
Three
of
the
appellate
judges
decided,
in
effect,
that
the
length
of
delay
could,
by
itself,
raise
a
presumption
of
prejudice.
The
Chief
Justice
found
that
no
prejudice
had
been
shown.
Robertson
J.A.,
also
dissenting,
was
sceptical
of
the
fading
memory
rationale
as
the
sole
basis
on
which
to
rest
a
decision
to
dismiss
for
want
of
prosecution.
In
Aqua-Gem
the
parties,
up
to
the
dismissal,
had
been
litigating
for
some
eight
years.
However
the
events
giving
rise
to
the
Aqua-Gem
litiga-
tion
went
back
some
thirteen
years,
a
slightly
shorter
overall
period
than
is
the
case
here,
where
the
events,
giving
rise
to
the
present
appeal,
occurred
some
fifteen
years
ago.
As
an
added
factor,
in
the
present
case,
the
plaintiff
had
eight
joint
venturers
in
the
purchase
and
sale
of
the
land.
Nine
memories
of
an
event,
that
began
with
the
purchase
of
land
in
1979
and
a
sale
not
long
after,
may
well
have
faded
into
nine
disparate
recollections.
I
am
of
the
view
that
there
has
been
enough
delay
to
raise
a
presumption
of
prejudice
and
that
nothing
in
the
plaintiffs
material
is
sufficient
to
rebut
that
presumption.
However,
in
the
event
that
I
am
wrong,
I
should
also
consider
the
second
ground
for
dismissal
put
forward
by
the
defendant,
that
the
delay
has
been
intentional
and
contumelious.
In
Birket
v.
James,
[1978]
A.C.
297,
[1977]
2
All
E.R.
801
(H.L.),
Lord
Diplock
noted
that
the
power
to
dismiss
an
action
might
be
exercised
where
the
Court
is
satisfied
(at
page
318
(All
E.R.
805)):
...that
the
default
has
been
intentional
and
contumelious,
e.g.
disobedience
to
a
preemptory
order
of
the
Court
or
conduct
amounting
to
an
abuse
of
the
process
of
the
Court…
as
an
alternative
to
inexcusable
delay
and
prejudice.
Usually
contumelious
delay
is
thought
of
in
terms
of
a
default
in
compliance
with
a
court
order.
However,
in
Wallersteiner
v.
Moir
[1974],
1
W.L.R.
991,
[1974]
3
All
E.R.
217
(C.A.),
the
plaintiff
had
commenced
an
action
for
liable
and
through
long
delays
had
used
the
writ
to
gag
any
discussion
by
his
critics
by
conducting
the
action
as
if
it
were
a
war
of
attrition.
All
three
Court
of
Appeal
judges
found
that
these
tactics
were
an
abuse
of
process.
Lord
Scarman
said
that
the
plaintiff
"had
imposed
upon
the
proceedings
a
delay
that
was
inordinate
and
inexcusable,
which
is
properly
described
as
an
’intentional
and
contumelious
default’"
(page
1029
(All
E.R.
231)).
Lord
Denning
wrote
of
the
plaintiff:
To
my
mind
his
action
was
an
abuse
of
the
process
of
the
court.
His
defaults
in
the
course
of
the
proceedings
were
all
of
a
pattern.
They
were
"intentional
and
contumelious,"
to
use
Diplock
L.J.’s
words
in
Allen
v.
Sir
Alfred
McAlpine
&
Sons
Ltd.…
Doctor
Wallersteiner
was
using
the
process
of
the
Court
—
not
to
get
justice
—
but
to
thwart
it.
When
the
court
meets
with
such
abuse,
it
has
a
means
to
cope
with
it.
It
will
strike
out
the
action
which
he
has
brought;
and
it
will
give
such
judgment
as
the
nature
of
the
case
permits.
In
the
present
instance
I
have
considered
aspects
of
the
plaintiff’s
conduct
during
the
Tax
Court
proceedings
and
during
these
proceedings,
together
with
his
written
representations.
First,
in
the
Tax
Court,
it
took
from
close
of
pleadings
in
October
of
1984
until
a
hearing
date
in
June
of
1991
to
bring
the
matter
to
a
conclusion.
A
synopsis
prepared
by
the
defendant
refers
to
a
number
of
adjournments
at
the
plaintiff’s
request,
an
adjourned
motion
to
dismiss
for
want
of
prosecution
and
the
threat
of
another
motion
to
dismiss
for
want
of
prosecution,
interspersed
with
negotiations
which
seemed
to
go
nowhere.
At
the
end
of
the
day
Her
Honour
Judge
Lamar
dismissed
the
action
from
the
bench.
During
the
course
of
these
proceedings
the
defendant
has
tried
a
number
of
times
to
obtain
documents
from
the
plaintiff,
without
success.
There
have
been
some
settlement
negotiations.
However
the
plaintiff
seems
possessed
with
the
idea
of
an
out-of-court
solution
with
the
Minister
of
National
Revenue
through
an
Edmonton
member
of
parliament.
As
a
result,
in
just
over
three
years
the
action
has
proceeded
only
as
far
as
completion
of
pleadings
and
production
of
documents
by
the
Crown,
with
the
plaintiff,
as
late
as
November
7,
1994,
trying
to
have
the
motion
to
strike
out
the
action
delayed
pending
a
response
to
a
September
1994
letter
to
the
Deputy
Minister
of
National
Revenue.
Finally,
in
response
to
a
direction,
the
plaintiff,
on
November
17,
1994,
filed
written
representations
on
the
present
motion.
The
plaintiff
begins
by
saying
that
he
is
hopeful
that
Revenue
Canada
will
give
him
someone
new
to
negotiate
with.
He
adds
that
the
Justice
Department
is
putting
pressure
on
him
to
accept
a
compromise
proposal
by
bringing
the
motion
to
dismiss
the
action.
He
says
he
would
be
willing
to
proceed
immediately
if
the
Court
desires
it.
He
submits
that
the
delays
have
been
circumstantial
and
not
intentional
and
inexcusable.
He
concludes
that
5.
I,
am
concerned
that
if
the
request
is
granted
to
defendant,
Revenue
Canada
will
immediately
start
collection
process,
which
may
put
me
and
my
family
ina
very
difficult
situation.
It
is
rather
late
in
the
day
for
the
plaintiff
to
say
he
is
willing
to
proceed
if
the
Court
so
desires.
In
this
instance,
it
is
not
for
the
Court
to
press
an
unwilling
plaintiff
to
get
on
with
his
action.
The
manner
in
which
the
plaintiff
has
conducted
this
appeal
of
the
Tax
Court
ruling
has
all
of
the
earmarks
of
a
delaying
tactic
either
to
gain
time
for
a
political
solution
or
to
delay
the
final
collection
of
tax
owed.
The
plaintiff
appears
to
be
using
the
process
of
the
Court
not
so
much
to
appeal
the
Tax
Court
ruling,
but
rather
to
thwart
collection.
As
such,
the
action
is
an
abuse
of
process
and
falls
within
the
definition
of
an
intentional
and
contumelious
default.
On
this
ground
I
would
also
strike
out
the
plaintiff’s
action.
Application
allowed;
action
struck
out.
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