Isaac,
C.J.:—This
is
an
appeal
from
the
order
of
a
motions
judge
in
the
Trial
Division
dated
November
8,
1991,
allowing
an
appeal
by
the
respondent
made
pursuant
to
Rule
336(5)
of
the
Federal
Court
Rules
from
an
order
of
the
associate
senior
prothonotary.
By
his
order,
the
motions
judge
set
aside,
with
costs,
the
order
of
the
associate
senior
prothonotary
which
dismissed
the
respondent's
motion
for,
inter
alia,
an
order
staying
the
proceeding
pursuant
to
paragraph
50(1)(b)
of
the
Federal
Court
Act
or,
alternatively,
dismissing
it
for
want
of
prosecution
pursuant
to
Rule
440.
The
order
in
appeal
had
the
effect
of
dismissing
the
appellant's
action
for
want
of
prosecution.
The
sole
ground
of
objection
to
the
order,
alleged
by
the
appellant
in
its
memorandum
of
fact
and
law,
was
that
the
motions
judge
erred
in
dismissing
the
action
for
want
of
prosecution,
but
when
the
appeal
came
on
for
hearing,
the
Court,
of
its
own
motion,
by
order
dated
October
5,
1992,
directed
the
parties
to
submit
argument
on
the
following
question:
Whether
the
Motions
Judge
applied
the
proper
standard
of
review
to
the
discretionary
decision
of
the
Prothonotary
when
he
relied
upon
the
standard
enunciated
by
Hugessen,
J.A.
in
The
Ship
“Jala
Godavari”
et
al.
v.
The
Queen
[(1991),
135
N.R.
316,
40
C.P.R.
(3d)
127
(F.C.A.)]
.
.
.
The
facts
The
respondent,
incorporated
in
1975,
is
a
firm
which,
inter
alia,
specializes
in
buying
and
reviving
failing
businesses.
In
computing
its
business
income
for
the
1979,
1980
and
1981
taxation
years,
it
sought
to
treat
certain
types
of
expenses
as
"active
business
income"
in
order
to
obtain
the
benefit
of
the
small
business
deduction
and
refundable
dividend
provisions
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act").
The
Minister
of
National
Revenue
(the
"Minister")
disagreed.
In
1983,
in
reassessing
the
respondent's
income
tax
returns
for
those
years,
the
Minister
treated
all
of
the
amounts
in
question
as
"Canadian
investment
income",
thus
subjecting
them
to
a
higher
tax
liability.
The
respondent
appealed
the
Minister’s
assessment
to
the
Tax
Court
of
Canada.
The
notice
of
appeal
was
filed
on
February
10,
1984.
The
Court
heard
the
appeal
on
May
31,
1985
and
rendered
its
decision
on
April
24,
1986.
The
decision
of
the
Tax
Court
is
reported
at
[1986]
1
C.T.C.
2528,
86
D.T.C.
1392.
On
the
appeal
to
the
Tax
Court,
the
respondent
conceded
the
Minister's
position
concerning
some
of
the
expenses.
However,
the
Court
decided
in
its
favour
over
the
allocation
of
certain
interest
income.
The
Minister
appealed
that
decision
to
the
Trial
Division
of
this
Court
in
accordance
with
the
provisions
of
the
Income
Tax
Act.!
The
Minister
filed
his
statement
of
claim
in
the
Trial
Division
on
July
29,
1986.
At
the
request
of
the
respondent,
the
Minister
agreed
to
a
delay
in
the
filing
of
the
respondent's
defence
until
the
Supreme
Court
of
Canada
had
delivered
its
decision
in
Ensite
Ltd.
v.
The
Queen,
[1986]
2
S.C.R.
509,
[1986]
2
C.T.C.
459,
86
D.T.C.
6521,
a
case
which
involved
roughly
analogous
facts
and
which
the
respondent
thought
could
affect
its
position
in
this
case.
After
the
Supreme
Court
rendered
its
decision
on
November
6,
1986,
the
Minister
indicated
his
intention
to
proceed
with
the
appeal,
and
the
respondent
said
that
it
would
"endeavour"
to
file
its
defence
by
January,
1987.
On
March
9,
1987,
the
respondent's
solicitor
wrote
to
the
appellant's
solicitor
enclosing
the
statement
of
defence
for
service.
On
March
13,
1987,
the
solicitor
for
the
Minister
wrote
to
the
solicitor
for
the
respondent
suggesting
that
they
exchange
lists
of
documents
and
make
arrangements
for
examinations
for
discovery.
No
further
communication
appears
to
have
passed
between
the
parties
until
March
23,
1988,
when
the
Minister's
solicitor
forwarded
his
list
of
documents
to
the
respondent's
solicitor
and
asked
for
the
respondent's
list
in
return.
The
Minister's
solicitor
also
suggested
that
the
parties
should
attempt
to
agree
on
the
facts
and
thereby
obviate
the
need
for
discoveries,
since
the
facts
were
"hardly
in
dispute”.
On
March
29,
1988,
the
solicitors
agreed
by
telephone
that
the
solicitor
for
the
Minister
would
prepare
a
draft
statement
of
facts.
There
is
no
evidence
that
this
agreement
was
ever
terminated
or
that
the
respondent
did
deliver
its
list
of
documents.
On
May
14,
1990
(over
two
years
after
the
previous
exchange
of
correspondence),
the
solicitor
for
the
Minister
sent
to
solicitor
for
the
respondent
a
copy
of
its
draft
statement
of
agreed
facts
and
asked
for
comments.
The
solicitor
for
the
respondent
did
not
respond.
On
October
24,
1990,
the
solicitor
for
the
Minister
wrote
again,
requesting
a
response.
He
received
none.
On
January
15,
1991,
the
solicitor
for
the
Minister
wrote
a
third
time
as
follows:
A
draft
of
the
statement
of
agreed
facts
was
sent
on
May
14,
1990
for
your
perusal.
I
have
not
had
any
response
from
you
despite
a
reminder
dated
October
24,
1990.
May
I
please
hear
from
you
whether
or
not
you
intend
to
proceed
with
this
appeal.
In
reviewing
your
position
you
might
take
into
account
the
views
of
the
Tax
Court
expressed
in
McCutcheon
Farms
Ltd.
v.
M.N.R.,
[1988]
1
C.T.C.
2349,
88
D.T.C.1208
at
page
2358
(D.T.C.
1214-15)
on
the
reasons
behind
the
Tax
Court's
decision
in
Aqua-Gem
[supra].
To
this
the
respondent's
solicitor
replied
by
serving
on
the
appellant's
solicitor,
a
notice
of
motion
returnable
on
June
10,
1991
in
the
Trial
Division
for
the
relief
mentioned
earlier.
The
motion
was
adjourned
by
the
parties
sine
die
and
was
heard
by
the
associate
senior
prothonotary
in
Toronto
on
September
30,
1991.
The
judgments
below
(a)
Reasons
of
the
Associate
Senior
Prothonotary
On
September
30,
1991,
the
associate
senior
prothonotary
heard
the
motion
and
dismissed
it.
On
October
8,
1991,
he
delivered
written
reasons
for
his
decision.
In
his
reasons,
the
associate
senior
prothonotary
reviewed
the
procedural
history
of
the
action
and
the
correspondence
passing
between
the
solicitors
for
the
parties.
He
then
stated:
The
time
that
has
passed
since
the
occurrence
of
the
facts
giving
rise
to
this
action
(which
is
a
tax
appeal)
is
sufficient
for
any
witness
to
have
forgotten
many
of
the
circumstances.
Defendant's
counsel,
however,
admitted
that
there
was
substantive
evidence
at
the
Trial
in
the
Tax
Court
and
no
doubt
transcripts
of
that
testimony
will
go
far
to
refresh
the
witnesses
[sic]
memory.
The
delay
prior
to
March,
1987
[i.e.,
the
period
prior
to
Aqua-Gem's
filing
its
defence]
was
either
by
agreement
awaiting
the
Supreme
Court
decision
or
by
delay
of
the
defendant.
The
delay
immediately
after
March,
1987
was
in
not
filing
document
lists.
Both
sides
were
required
to
file
such
lists,
neither
did
so.
Over
a
year
later,
in
March,
1988,
the
plaintiff
[i.e.,
Crown]
supplied
a
list.
The
defendant
might
at
that
time
have
moved
or
complained
of
a
fresh
step
being
taken
after
a
year's
delay.
The
defendant
did
not
do
so.
The
parties
communicated
and
on
the
28th
of
March,
1988,
the
plaintiff
agreed
to
draft
a
statement
of
fact
in
the
hope
that
an
agreed
statement
of
facts
might
be
used
to
shorten
proceedings.
The
plaintiff
did
not
supply
the
draft
agreed
statement
of
facts
for
over
two
years.
When
the
plaintiff
finally
supplied
the
draft
in
May
of
1990,
the
defendant
could
have
again
moved
or
complained.
Over
the
next
year,
the
plaintiff
twice
sought
replies
and
received
none.
The
delay
of
two
years
up
until
May,
1990,
as
I
say,
might
well
have
supported
a
successful
motion
to
dismiss
brought
about
at
that
time.
The
defendant,
however,
did
nothing.
Twice
the
defendant
was
reminded.
The
next
step
in
the
proceedings
which
were
apparently
agreed
to
by
the
party's
[sic]
in
March
of
1988
was
for
the
defendant
to
react
to
the
draft
agreed
statement
of
facts
which
it
did
not
do.
Having
apparently
excused
a
one
year
delay
prior
to
March,
1988,
and
a
further
two
year
delay
prior
to
May,
1990,
or
if
it
did
not
excuse
those
delays
to
have
done
nothing
about
either
of
them
until
June
of
1991.
[sic]
The
defendant
cannot
be
heard
to
complain
at
this
late
date
of
the
plaintiff's
failure
to
proceed
expeditiously
at
earlier
times
nor
of
the
plaintiff's
failure
to
react
to
the
defendant's
delays
in
commenting
on
the
agreed
statement
of
facts.
For
these
reasons
I
dismissed
the
defendant's
motion.
(Appeal
Book
pages
39-40.)
[Emphasis
added.]
(b)
Reasons
of
the
Motions
Judge
The
respondent
appealed
from
the
order
of
the
associate
senior
prothonotary
by
motion
brought
pursuant
to
Rule
336(5)
of
the
Federal
Court
Rules,
according
to
the
practice
of
the
Court.
In
its
notice
of
motion
the
respondent
sought,
inter
alia,
an
order
reversing
the
order
of
the
associate
senior
prothonotary
on
several
grounds,
but
in
essence
it
claimed
that
the
associate
senior
prothonotary
had
erred
in
not
staying
or
dismissing
the
appellant's
action.
I
digress
here
to
observe
that
in
argument
before
us
counsel
for
the
appellant
stated
that
he
took
the
position
before
the
Associate
Senior
Prothonotary
that
despite
the
alternative
claim
for
relief
the
respondent's
motion
was
properly
one
for
dismissal
for
want
of
prosecution
pursuant
to
Rule
440
of
the
Federal
Court
Rules
and
not
for
a
stay
pursuant
to
subsection
50(1)
of
the
Federal
Court
Act,
R.S.C.
1985,
c.
F-7.
It
would
appear
that
the
associate
prothonotary
accepted
that
position
because
he
decided
the
motion
on
that
basis.
After
he
had
reviewed
the
facts,
the
motions
judge
outlined
his
approach
to
the
appeal
in
the
following
terms:
The
first
point
I
wish
to
make
concerns
the
function
of
a
trial
judge
of
this
court
when
hearing
an
appeal
from
a
decision
of
a
prothonotary.
It
is
now
established
that
in
cases
of
this
nature,
a
judge
is
not
only
permitted
to
exercise
his
or
her
own
discretion,
but
is
required
to
do
so.
Furthermore,
there
is
no
obligation
on
the
court
to
accept
the
views
of
the
prothonotary.
This
principle
was
set
out
by
the
Federal
Court
of
Appeal
in
The
Ship
“Jala
Godavari"
v.
The
Queen
(1991),
135
N.R.
316,
40
C.P.R.
(3d)
127,
wherein
Hugessen
J.A.
writing
for
the
court
made
the
following
statement:
In
this
latter
connection
we
would
add
that,
contrary
to
a
view
that
has
sometimes
been
expressed
in
the
Trial
Division,
a
judge
who
hears
an
appeal
from
a
prothonotary
on
a
matter
involving
the
exercise
of
discretion
is
called
upon
to
exercise
his
own
discretion
and
is
not
bound
by
the
prothonotary's
opinion.
He
may,
of
course,
choose
to
give
great
weight
to
the
views
expressed
by
the
prothonotary,
but
the
parties
are,
in
the
final
analysis,
entitled
to
the
discretion
of
a
judge
and
not
that
of
a
subordinate
officer.
(Appeal
book
pages
47-48.)
It
was
this
passage
in
the
reasons
of
the
motions
judge
which
caused
the
Court
to
require
argument
on
the
issue
of
whether
the
proper
standard
of
review
had
been
applied
to
the
order
of
the
associate
senior
prothonotary.
Following
his
description
of
the
scope
of
review,
the
motions
judge
stated
that
he
would
allow
the
appeal.
In
justifying
his
conclusion
he
said:
In
order
to
succeed
on
an
application
to
dismiss
an
action
for
want
of
prosecution,
the
defendant
must
show
that
there
has
been
inordinate
delay
which
is
inexcusable
and
that
it
will
likely
be
prejudiced
by
the
delay.
The
general
rule
is
that
the
longer
the
delay,
the
greater
the
likelihood
of
serious
prejudice
at
the
trial
as
the
passage
of
time
weakens
the
witnesses’
recollection
of
events.
I
am
satisfied
that
the
defendant
has
successfully
shown
these
elements
in
the
present
case.
Indeed,
it
is
not
seriously
contested
here
that
there
has
been
inordinate
delay
on
the
part
of
the
plaintiff.
Giles,
A.S.P.
noted
in
his
reasons
that
"the
time
that
has
passed
since
the
occurrence
of
the
facts
giving
rise
to
this
action
(which
is
a
tax
appeal)
is
sufficient
for
any
witness
to
have
forgotten
many
of
the
circumstances".
Accordingly,
it
is
appropriate
that
the
plaintiff's
action
be
dismissed
for
want
of
prosecution.
The
fact
that
plaintiff's
delay
in
prosecuting
this
case
is
sufficient
to
warrant
an
order
dismissing
the
action
is
not,
under
the
circumstances,
altered
by
any
subsequent
delay
on
the
part
of
the
defendant.
The
implication
that
the
defendant's
lack
of
action
excused
the
plaintiff's
failure
to
prosecute
in
a
reasonable
and
timely
manner
is
simply
not
correct.
I
am
of
the
view
that
the
associate
senior
prothonotary
was
in
error
when
he
refused
to
grant
the
motion
for
want
of
prosecution
solely
on
the
grounds
that
the
defendants
had
not
complained
of
the
plaintiff's
tardiness
or
taken
some
action
at
an
earlier
date.
It
is
clear
on
the
facts
that
the
delay
on
the
plaintiff's
part
has
been
of
such
substantial
proportion
as
to
likely
cause
prejudice
to
the
defendant
at
trial.
(Appeal
Book
page
49.)
[Emphasis
added.]
The
issues
As
reconstituted,
the
following
two
issues
arose
for
determination
in
this
appeal
and
were
fully
canvassed
by
counsel
for
the
parties:
1.
Whether
the
motions
judge
applied
the
proper
standard
of
review
to
the
discretionary
decision
of
the
associate
senior
prothonotary.
2.
Whether
the
motions
judge
erred
in
allowing
the
respondent's
appeal
and
setting
aside
the
order
of
the
associate
senior
prothonotary.
I
will
deal
with
each
issue
in
turn.
1.
Whether
the
motions
judge
applied
the
proper
standard
of
review
to
the
discretionary
decision
of
the
associate
senior
prothonotary.
I
observe
at
the
outset
that
this
issue
is
of
great
importance,
since
it
touches
directly
upon
the
efficient
dispatch
of
the
business
of
the
Court
and
the
proper
utilization
of
judicial
resources.
Simply
stated,
the
competing
considerations
are
whether
all
discretionary
decisions
of
prothonotaries
are
to
be
reviewed
by
hearings
de
novo,
as
the
motions
judge
has
concluded,
based
on
the
decision
in
The
Ship
"Jala
Godavari"
v.
Canada,
supra,
or
whether
they
should
be
reviewed
for
error
only
in
some
or
all
cases.
If
only
in
some,
how
should
such
cases
be
defined?
Resolution
of
this
issue
requires
an
appreciation
of
the
role
of
prothonotaries
and
the
nature
of
the
functions
they
perform
in
this
Court.
It
is
necessary
to
an
understanding
of
that
role
and
those
functions
to
review
their
legislative
underpinnings.
By
section
3
of
the
Federal
Court
Act,
Parliament
continued
in
this
Court,
as
a
superior
court
of
civil
and
criminal
jurisdiction,
the
authority
formerly
exercised
by
the
Exchequer
Court
of
Canada.
As
is
well
known,
the
Exchequer
Court
employed
a
registrar
or
master
to
assist
in
its
work.
The
Act
provides,
in
section
12,
for
the
continuation
of
the
function
performed
by
these
officers,
by
authorizing
the
appointment
of
prothonotaries.
Section
12
defines
the
powers,
duties,
functions
and
status
attaching
to
the
office
of
prothonotary
in
the
following
terms:
12.
(1)
The
Governor
in
Council
may
appoint
as
prothonotaries
of
the
Court
such
fit
and
proper
persons
who
are
barristers
or
advocates
in
a
province
as
are,
in
his
opinion,
necessary
for
the
efficient
performance
of
the
work
of
the
Court
that,
under
the
rules,
is
to
be
performed
by
them.
(2)
The
Governor
in
Council
shall
designate
one
of
the
prothonotaries
to
be
Senior
Prothonotary
and
one
of
the
prothonotaries
to
be
Associate
Senior
Prothonotary.
(3)
The
powers,
duties
and
functions
of
the
prothonotaries
shall
be
determined
by
the
Rules.
(4)
Each
prothonotary
shall
be
paid
a
salary
to
be
fixed
by
the
Governor
in
Council.
(5)
For
the
purpose
of
the
Public
Service
Superannuation
Act,
a
prothonotary
shall
be
deemed
to
be
employed
in
the
Public
Service.
In
the
exercise
of
the
rule-making
authority
given
in
paragraph
46(h)
of
the
Act
to
make
rules
"empowering
a
prothonotary
to
exercise
any
authority
or
jurisdiction,
subject
to
supervision
by
the
Court
even
though
the
authority
or
jurisdiction
may
be
of
a
judicial
nature”,
the
Court
has
promulgated
Rule
336
which
enumerates
the
duties
which
a
prothonotary
may
perform.
For
convenience,
I
reproduce
relevant
portions
of
that
Rule:
336.
(1)
Notwithstanding
Rule
326(1),
a
prothonotary
shall
have
power
(a)
to
do
anything
that
he
is
by
these
Rules
authorized
to
do,
(b)
if
he
is
satisfied
that
all
parties
affected
have
consented
thereto,
to
make
any
order
that
the
Trial
Division
may
make
other
than
(i)
an
order
that
is
inconsistent
with
an
order
previously
made
by
the
Court
or
a
judge,
or
(ii)
an
order
fixing
a
date
or
place
of
trial,
(c)
if
he
is
satisfied
that
all
parties
affected
have
consented
thereto,
to
give
a
judgment
disposing
of
an
action,
(d)
to
deliver
any
judgment
and
make
any
order
that
the
Court
may
deliver
or
make
under
Rules
432
to
437,
(e)
to
make
any
order
that
the
Court
might
make
granting
leave
to
issue
a
writ
of
execution
or
extending
the
validity
of
a
writ
of
execution,
(f)
to
hear
and
dispose
of
any
action
in
which
the
amount
involved
does
not
exceed
$5,000
that
has
been
assigned
to
him
by
a
special
direction
of
the
Associate
Chief
Justice,
or
(g)
to
dispose
of
any
interlocutory
application
assigned
to
him
specially
or
to
any
prothonotary,
by
special
or
general
direction
of
the
Chief
Justice
or
of
the
Associate
Chief
Justice,
and,
in
exercising
his
powers,
a
prothonotary
shall,
ordinarily,
sit
in
a
hearing
room
open
to
the
public,
but
except
in
a
matter
under
paragraph
(f),
failure
to
do
so
shall
not
invalidate
anything
done
by
him.
(3)
Every
order
or
decision
made
or
given
by
a
prothonotary
under
this
Rule
is
as
valid
and
binding
on
all
parties
concerned
as
if
it
had
been
made
or
given
by
the
Court.
The
supervision
required
by
Parliament
in
paragraph
46(h)
is
found
in
Rule
336(5),
which
provides
for
a
right
of
appeal
from
all
orders
of
prothonotaries,
and
which
reads:
(5)
Any
person
affected
by
an
order
or
decision
of
a
prothonotary,
other
than
a
judgment
under
Rule
432
to
437
[which
deal
with
default
judgments],
may
appeal
therefrom
to
the
Court
and
such
appeal
shall
be
made
by
an
application
of
which
a
notice
shall
be
given
to
all
interested
parties
setting
forth
the
grounds
of
objection
and
served
within
14
days
after
the
order
or
decision
complained
of,
and
four
clear
days
before
the
day
fixed
for
hearing
the
same,
or
served
within
such
other
time
as
may
be
allowed
by
the
Court
or
a
prothonotary
on
ex
parte
application.
The
appeal
shall
be
filed
not
later
than
two
days
before
the
date
named
for
hearing
(In
this
paragraph,
Court”
means'
Trial
Division”,
if
the
matter
is
in
the
Trial
Division
and
"Court
of
Appeal"
if
the
matter
is
in
the
Court
of
Appeal).
On
October
31,
1985,
the
associate
chief
justice,
acting
under
the
authority
of
Rule
336(1)(g),
issued
a
general
direction
respecting
the
powers
of
prothonotaries
in
relation
to
the
hearing
and
disposition
of
interlocutory
applications
in
the
Trial
Division.
In
that
direction,
the
associate
chief
justice
stated
that
the
senior
prothonotary
and
the
associate
senior
prothonotary
were
empowered
to
hear
and
dispose
of
any
interlocutory
application
in
the
Trial
Division
except
one
falling
within
five
classes
of
matters
specifically
enumerated
therein.
Doubtless,
in
providing
for
the
office
of
the
registrar
or
master
in
the
Exchequer
Court
and
of
the
prothonotary
in
this
Court,
Parliament
was
mindful
of
the
pre-trial
and
post-judgment
support
which
the
master
system
provided
for
superior
court
judges
in
the
judicial
systems
of
England
and
Ontario,
both
of
which
made
extensive
use
of
these
judicial
officers.
In
his
Hamlyn
Lectures
(published
under
the
title
The
Fabric
of
English
Civil
Justice,
London:
Stevens
&
Sons,
1987),
Sir
Jack
Jacob,
Q.C.,
himself
a
former
senior
master
of
the
High
Court
of
Justice
in
England,
sketched
the
historical
development
of
the
master
system
in
England
and
the
manner
of
its
operation.
The
following
passage
at
pages
110-11
is
instructive
of
the
historical
evolution
of
that
system
:
The
most
striking
feature
of
the
English
pre-trial
process
is
that,
save
for
a
few
exceptions,
the
proceedings
are
conducted
not
before
a
judge
but
before
a
junior
judicial
officer,
called
the
Master
or
Registrar.
Before
1837,
the
judges
of
the
three
superior
common
law
courts
themselves
dealt
with
pre-trial
applications,
which
were
then
comparatively
few
in
number
and
in
variety.
In
1837,
Parliament
abolished
a
great
number
of
administrative
and
a
few
quasi-judical
offices
and
in
their
place
created
the
Masters
of
the
three
Common
Law
Courts
to
assist
the
judges
in
their
pre-trial
work.
In
1867,
Parliament
took
the
bold
leap
forward
to
transform
the
position
of
the
Master
from
being
an
assistant
to
the
judge
into
becoming
a
separate,
distinct
and
independent
judicial
officer.
This
was
achieved
by
enabling
the
judges
to
make
rules
of
court
empowering
the
Masters
to
transact
all
such
business
and
exercise
all
such
authority
and
jurisdiction
as
may
be
transacted
and
exercised
by
the
judge
in
Chambers,
except
in
specified
matters
and
proceedings.
Needless
to
say,
the
requisite
rules
of
court
were
immediately
made
and
they
have
continued
with
considerable
expansion
to
this
day.
They
operate
to
confer
on
the
Masters
original
jurisdiction
in
respect
of
the
matters
and
proceedings
that
come
before
them.
For
these
purposes
in
the
High
Court,
the
Master
is
the
equivalent
of
the
judge
in
Chambers
and
his
decision,
order
or
judgment
is
made
or
given
in
his
capacity
as
"the
court”
itself.
The
jurisdiction
of
the
Masters,
which
has
from
time
to
time
since
their
creation
been
greatly
expanded,
is
very
extensive
indeed
and
covers
almost
the
entire
range
of
pre-trial
proceedings,
with
the
important
exception
of
applications
for
an
injunction,
other
than
in
agreed
terms,
and
it
also
extends
to
almost
all
postjudgment
proceedings.
They
have
power
to
make
final
as
well
as
interlocutory
orders
and
to
give
final
judgments
which
are
as
operative
and
enforceable
and
which
must
be
complied
with
as
if
made
of
given
by
a
judge.
There
is
no
doubt
that
the
office
and
functions
of
a
master
in
superior
courts
of
civil
jurisdiction
in
the
common
law
provinces
in
Canada
is
an
inheritance
of
the
colonial
past,
but
from
an
early
date
Canadian
practice
seems
to
have
diverged
from
that
of
England.
So
it
was
that
as
long
ago
as
1866,
in
Sculthorpe
v.
Burn
(1866),
12
Gr.
427,
Mowat,
V.C.
could
say
that,
in
preconfederation
Ontario,
masters
had
been
invested
with
a
"larger
discretion”
than
their
counterparts
in
England.
In
the
early
years
of
confederation,
the
question
of
the
proper
standard
of
review
of
the
discretionary
decisions
of
masters
by
motions
judges
in
provincial
superior
courts
arose
for
consideration.
Two
distinct
lines
of
authority
emerged
and
they
persist
to
the
present
time.
In
Ontario,
in
Adamson
v.
Adamson
(1888),
12
P.R.
469
(H.C.)
at
page
471,
Chancellor
Boyd
accepted
as
settled
that,
"the
rule
is
not
to
interfere
unless
the
order
appealed
from
is
clearly
wrong".
To
the
same
effect
is
Odell
v.
Mulholland
(1891),
14
P.R.
180
(H.C.),
a
case
where
the
master
had
ordered
a
change
of
venue.
Chancellor
Boyd
refused
to
interfere
on
appeal
because
he
had
not
been
persuaded
that
the
master
was
clearly
wrong,
even
though
he
said
that
he
himself
might
have
decided
the
case
differently
if
it
had
come
before
him
in
the
first
instance.
This
was
the
Ontario
standard
until
the
decision
of
Barlow,
J.
in
Quality
Steels
(London)
Ltd.
v.
Atlas
Steels
Ltd.,
[1949]
O.W.N.
110
(H.C.)
at
pages
111-12,
where
he
purported
to
adopt
the
English
standard,
quoting
the
following
passage
from
the
speech
of
Lord
Atkin
in
Evans
v.
Bartlam,
[1937]
A.C.
473,
[1937]
2
All
E.R.
646
(H.L.)
at
page
478
(A.C.):
As
to
the
limits
of
the
discretion,
if
any,
it
may
be
necessary
to
say
a
word
or
two
later.
I
only
stay
to
mention
a
contention
of
the
respondent
that
the
Master
having
exercised
his
discretion
the
judge
in
Chambers
should
not
reverse
him
unless
it
was
made
evident
that
the
Master
has
exercised
his
discretion
on
wrong
principles.
I
wish
to
state
my
conviction
that
where
there
is
a
discretionary
jurisdiction
given
to
the
Court
or
a
judge
the
judge
in
Chambers
is
in
no
way
fettered
by
the
previous
exercise
of
the
Master's
discretion.
His
own
discretion
is
intended
by
the
rules
to
determine
the
parties’
rights:
and
he
is
entitled
to
exercise
it
as
though
the
matter
came
before
him
for
the
first
time.
He
will,
of
course,
give
the
weight
it
deserves
to
the
previous
decision
of
the
Master:
but
he
is
in
no
way
bound
by
it.
In
Marlene
Investments
Ltd.
v.
McBride
(1979),
23
O.R.
(2d)
125,
13
C.P.C.
221
(H.C.),
however,
Southey,
J.
reinstated
the
rule
as
formulated
by
Chancellor
Boyd
in
Adamson
and
Odell,
both
supra,
remarking
that
Barlow,
J.
had
overlooked
these
cases
when
he
decided
Quality
Steels,
supra.
Southey,
J.
added
that
different
considerations
would
apply
in
circumstances
where
the
orders
of
a
master
raised
questions
vital
to
the
final
issue
of
a
case.
In
those
instances
he
concluded
that
a
reviewing
judge
would
be
required
to
exercise
an
independent
discretion,
if
the
master's
decision
was
questioned
on
appeal.
For
this
addition
to
the
rule
he
relied
upon
the
following
passage
from
the
speech
of
Lord
Wright
in
Evans
v.
Bartlam,
supra,
at
page
484
(A.C.):
The
Masters
admirably
exercise
their
discretion
in
routine
matters
of
pleading,
discovery,
interrogatories,
venue,
mode
of
trial,
and
other
interlocutory
directions,
without
any
appeal
being
necessary.
But
such
matters
may
on
occasion
raise
questions
most
vital
to
the
final
issue
of
the
case.
The
decision
of
such
questions
is
properly
for
the
judge
who
will
no
doubt
consider
carefully
the
order
of
the
Master.
If
a
further
appeal
is
taken
to
the
Court
of
Appeal
it
is
the
judge's
discretion
which
that
Court
has
either
to
support
or
vary
or
reverse.
Like
the
present
case,
Marlene
Investments,
supra,
Was
an
appeal
from
an
interlocutory
order
of
a
master
dismissing
an
application
by
the
defendants
to
dismiss
an
action
for
want
of
prosecution
(under
the
appropriate
Ontario
Rule).
Southey,
J.
applied
the
rule
laid
down
in
Adamson
and
Odell
and
having
found
no
error
in
the
master's
decision,
dismissed
the
appeal.
The
Ontario
rule
as
restated
in
Marlene
Investments
was
approved
and
refined
by
the
Ontario
Court
of
Appeal
in
Stoicevski
v.
Casement
(1983),
43
O.R.
(2d)
436.
In
Stoicevski,
a
local
judge
of
the
Supreme
Court,
acting
as
master,
had
refused
to
allow
an
amendment
to
a
statement
of
defence
in
an
action
arising
out
of
a
motor
vehicle
accident
on
the
ground
that
the
proposed
amendment
raised
matters
which
would
have
required
the
plaintiff
to
plead
a
fresh
cause
of
action
against
third
parties.
Since
the
limitation
period
had
expired
by
the
time
the
amendment
was
sought,
the
local
judge
concluded
that
the
plaintiff
would
be
unanswerably
prejudiced
by
the
amendment
in
a
manner
not
compensable
in
costs.
The
Divisional
Court
reversed.
In
allowing
the
appeal
and
restoring
the
order
of
the
local
judge,
Lacourciére,
J.A.,
writing
for
the
Court,
stated
at
pages
438-39:
One
of
the
arguments
presented
.
.
.
and
adopted
by
White,
J.
in
his
dissenting
judgment
in
the
Divisional
Court,
was
that
the
learned
local
judge
arrived
at
his
decision
in
the
exercise
of
his
judicial
discretion
and
consequently
his
order
ought
not
to
have
been
disturbed
by
the
Divisional
Court
unless
it
was
clearly
wrong.
I
agree
that
this
test
(adopted
by
Southey,
J.
in
Marlene
Investments
Ltd
v.
McBride
[supra]
.
.
.
following
the
language
of
Chancellor
Boyd
in
Adamson
v.
Adamson
[supra]
.
.
.
is
the
appropriate
one
where
an
appeal
is
taken
from
an
interlocutory
order
involving
matters
such
as
a
change
of
venue,
a
jury
notice
or
a
routine
amendment
to
a
pleading.
However,
it
was
recognized
by
Southey,
J.
in
Marleen
[sic]
Investments,
supra,
that
some
interlocutory
rulings
which
raise
questions
vital
to
the
final
issue
of
the
case
require
a
rehearing
in
which
the
judge's
discretion
may
properly
be
substituted
for
that
of
the
master
or
local
judge.
The
present
appeal
clearly
falls
within
the
latter
category.
An
amendment
which
may
have
the
effect
of
reducing
the
plaintiff's
quantum
of
recovery
of
damages
is
clearly
vital
to
the
final
issue.
[Emphasis
added.]
The
following
are
some
examples
of
decisions
of
masters
in
Ontario
which
have
been
held
to
raise
questions
vital
to
the
final
issue
of
a
case:
a
decision
that
a
limitation
period
barred
the
adding
of
defendants
(Branche
v.
MacArthur
(1986),
30
D.L.R.
(4th)
301,
56
O.R.
(2d)
71
(Ont.
Div.
Ct.));
an
order
requiring
the
plaintiff
to
post
security
for
costs
which
would
have
effectively
precluded
the
action
from
being
heard
(John
Wink
Ltd.
v.
Sico
Inc.
(1987),
15
C.P.C.
(2d)
187,
57
O.R.
(2d)
705
(H.C.));
a
decision
to
consider
a
group
of
plaintiffs
collectively
rather
than
individually
in
determining
whether
they
should
post
security
for
costs
(Das
v.
Coles
(1989),
71
O.R.
(2d)
57
(H.C.));
and,
a
refusal
to
set
aside
the
noting
of
pleadings
closed,
the
effect
of
which
was
that
a
defendant
was
deemed
to
admit
the
truth
of
a
plaintiff's
pleadings
(Hart
v.
Kowall
(1990),
70
O.R.
(2d)
306,
74
D.L.R.
(4th)
126
(Ont.
Div.
Ct.)).
In
each
of
these
cases,
the
motions
judge
heard
the
matter
de
novo
and
exercised
his
or
her
own
discretion.
In
contrast,
motions
judges
in
Ontario
have
refused
to
engage
in
de
novo
review
of
an
order
to
divide
examinations
for
discovery
(L.C.D.H.
Audio
Visual
Ltd.
v.
I.S.T.S.
Verbatim
Ltd.
(1986),
54
O.R.
(2d)
425,
8
C.P.C.
(2d)
141
(H.C.));
and
an
order
dismissing
a
motion
to
strike
out
a
portion
of
a
claim
for
punitive
damages
(Fazzari
v.
Pellizzari
(1988),
28
O.A.C.
38
(Div.
Ct.)).
A
reading
of
these
cases
suggests
that
the
critical
question
is
whether
the
decision
of
the
master
will
preclude
a
hearing
of
the
case
on
its
merits.
If
so,
it
will
be
considered
to
raise
a
question
vital
to
the
final
issue
of
the
case
and
de
novo
review
is
appropriate.
But
if
not,
a
motions
judge
will
defer
to
the
master's
discretion
unless,
to
borrow
the
language
of
Chancellor
Boyd,
or
he
or
she
is
clearly
wrong".
The
standard
of
review
in
Nova
Scotia,
when
masters
were
employed
there
,
was
similar
to
the
early
Ontario
Rule.
In
King
v.
Drysdale
(1892),
24
N.S.R.
308
(C.A.),
Townshend,
J.
(as
he
then
was)
stated
at
page
317
that
the
Court's
duty
on
review
of
a
master's
discretionary
order
was
"only
to
see
if
the
Master
had
acted
on
a
wrong
principle
or
had
committed
some
manifest
error".
Similarly,
in
Starratt
v.
White
(1913),
47
N.S.R.
162,11
D.L.R.
488
(C.A.)
Townshend,
C.J.
stated
at
pages
163-64
in
an
appeal
from
the
decision
of
a
master
allowing
certain
interrogatories:
This
appeal
is
of
a
class
which
should
be
discouraged,
involving,
as
it
does,
only
a
question
whether
the
County
Court
judge,
acting
as
a
Master
of
this
Court,
properly
exercised
his
discretion
in
a
point
of
practice.
All
authorities
agree
that
unless
he
has
erred
in
principle,
the
Court
will
not
interfere
on
appeal.
Twenty-five
years
after
Alberta
joined
confederation,
the
Supreme
Court
of
Alberta
developed
a
different
standard
of
review
of
discretionary
orders
made
by
masters.
In
Alberta
Wheat
Pool
v.
Nahajowicz,
[1930]
1
W.W.R.
483,
a
case
involving
an
order
by
a
master
that
the
plaintiff
deliver
particulars
of
his
claim
to
the
defendant,
Harvey,
C.J.,
speaking
for
the
Appellate
Division,
stated
at
page
484:
As
to
the
last
ground
it
has
been
pointed
out
more
than
once
that
the
Master
is
not
a
Judge
but
an
officer
of
the
Court
exercising
certain
delegated
functions
and
the
rule
about
discretionary
orders
by
a
Judge
does
not
apply
to
his
orders.
This
standard
of
review
was
applied
in
Wright
v.
Disposal
Services
Ltd.
(1977),
4
Alta
L.R.
(2d)
173,
80
D.L.R.
(3d)
671
(S.C.),
where
Laycraft,
J.
(as
he
then
was)
stated
at
page
177
(Alta
L.R.):
It
was
urged
upon
me
during
argument
that
as
the
master
had
exercised
his
discretion
[the
case
involved
an
application
to
extend
the
time
for
serving
a
statement
of
claim],
I
should
follow
the
practice
of
appellate
courts
and
not
interfere
with
that
discretion
even
if
I
disagreed
with
the
result,
unless
it
was
plainly
based
on
wrong
principle.
/n
my
opinion,
however,
the
rule
followed
by
the
Appellate
Division
in
an
appeal
from
a
trial
judge
involving
an
exercise
of
discretion
does
not
apply
to
an
appeal
from
the
decision
of
a
master
in
chambers.
While
that
decision
is
entitled
to
the
greatest
respect,
the
discretionary
jurisdiction
possessed
by
a
superior
court
judge
cannot
be
fettered
in
any
way
by
the
previous
decision
of
the
master.
[Emphasis
added.]
In
reaching
that
conclusion,
Laycraft,
J.
adopted
the
English
standard,
as
expressed
in
the
speech
of
Lord
Atkin
in
Evans
v.
Bartlam,
supra.
In
West
Edmonton
Mall
Shopping
Centre
Ltd.
v.
274099
Alberta
Ltd.
(1990),
75
Alta
L.R.
389,
114
A.R.
57
(C.A.),
Côté,
J.A.,
writing
for
the
Court,
may
even
have
suggested
an
enlarged
standard
when
he
stated
at
page
389
(Alta.
L.R.):
The
disposition
of
any
appeal
[from
the
decision
of
a
Master]
depends
upon
the
correctness
of
the
formal
judgment
appealed
from,
not
the
correctness
of
the
reasons
for
judgment.
Furthermore,
in
Alberta
an
appeal
from
a
master
to
a
judge
is
de
novo.
The
judge
exercises
any
discretion
anew.
New
evidence
may
be
put
before
him
for
that
reason,
and
because
he
has
original
jurisdiction
as
well.
He
is
not
just
an
appellate
tribunal.
After
considering
both
positions,
MacDonald,
J.
of
the
Supreme
Court
of
British
Columbia
adopted
the
Ontario
standard
as
laid
down
in
Stoicevski,
supra,
in
Abermin
Corp.
v.
Granges
Exploration
Ltd.
(1990),
45
B.C.L.R.
(2d)
188,
42
C.P.C.
(2d)
25.
Abermin
was
an
appeal
from
the
order
of
a
master
granting
a
motion
to
adjourn
applications
to
fix
security
for
costs.
The
master
had
granted
the
order
on
condition
that
examinations
for
discovery
then
scheduled
should
not
proceed
until
the
disposition
of
the
applications.
Confronted
by
seemingly
conflicting
decisions
in
the
Supreme
Court
of
British
Columbia
as
to
the
appropriate
standard,
MacDonald,
J.
looked
for
guidance
in
“other
provincial
jurisdictions
which
have
been
operating
under
the
same
constitutional
limitations
for
some
years"
(page
192).
He
considered
the
Alberta
standard
as
expressed
in
Wright
v.
Disposal
Services
Ltd.,
supra,
and
the
Ontario
standard
as
expressed
both
in
Marlene
Investments
Ltd.,
and
Stoicevski,
supra,
and
concluded
at
page
193
(B.C.L.R.):
The
decision
in
Stoicevski
v.
Casement
represents
a
realistic
compromise
between
the
various
policy
considerations
which
bear
upon
the
scope
of
review
which
should
be
permitted.
.
.
.
An
appeal
from
a
master's
order
in
a
purely
interlocutory
matter
should
not
be
entertained
unless
the
decision
was
clearly
wrong.
However,
where
the
ruling
of
the
master
raises
questions
which
are
vital
to
the
final
issue
in
the
case,
or
results
in
one
of
those
final
orders
which
a
master
is
permitted
to
make,
a
rehearing
is
the
appropriate
form
of
appeal.
Unless
an
order
for
the
production
of
fresh
evidence
is
made,
that
rehearing
will
proceed
on
the
basis
of
the
material
which
was
before
the
master.
In
those
latter
situations,
even
where
the
exercise
of
discretion
is
involved,
the
judge
appealed
to
may
quite
properly
substitute
his
own
view
for
that
of
the
master.
Since
both
Alberta
and
Ontario
now
seem
to
have
adopted
the
positions
taken
by
different
Law
Lords
in
Evans
v.
Bartlam,
supra,
it
might
be
useful
to
review
the
facts
in
that
case
briefly.
Evans
v.
Bartlam
was
a
case
where
a
master
refused
to
set
aside
a
judgment
which
had
been
noted
in
default
for
failure
to
file
an
appearance.
It
was
apparent
that
the
defendant
had
a
defence
to
the
claim
(see
the
speech
of
Lord
Wright
at
page
489),
but
by
refusing
him
leave
to
reopen,
the
master
was
effectively
precluding
him
from
ever
raising
it.
The
motions
judge,
exercising
his
own
discretion,
reversed
the
master’s
decision.
A
majority
of
the
Court
of
Appeal
reversed
the
decision
of
the
motions
judge.
Before
the
House
of
Lords,
the
issue
was
the
correctness
of
the
decision
of
the
Court
of
Appeal,
but
in
delivering
their
speeches,
Lords
Atkin
and
Wright
made
the
observations
concerning
the
review
of
discretionary
orders
of
masters
already
quoted.
The
House
of
Lords
held
that
the
motions
judge
was
not
in
error
in
substituting
his
discretion
for
that
of
the
master,
thus
affording
the
defendant
an
opportunity
to
file
a
defence
and
allowing
the
substantive
rights
of
both
parties
to
be
determined
at
a
trial
in
the
ordinary
way.
In
the
province
of
Quebec,
the
Code
of
Civil
Procedure
provides
several
avenues
of
review
of
orders
made
by
prothonotaries.
See
Audet,
Les
officiers
de
Justice
:
Des
origines
de
la
colonie
jusqu'à
nos
jours
(Montreal:
Wilson
&
Lafleur,
1986),
pages
199-204.
Some
orders
are
reviewable
by
a
hearing
de
novo
in
a
proceeding
before
a
Superior
Court
judge
known
as
revision.
See,
for
example,
Code
of
Civil
Procedure,
Articles
42
and
44.1,
and
Lacaud
v.
Leblanc,
[1983]
C.S.
555.
Others
are
reviewable
in
appeals
to
the
Court
of
Appeal,
in
which
case
they
are
treated
like
final
judgments
of
the
Superior
Court.
See
Code
of
Civil
Procedure,
Articles
41
and
511,
and
Audet,
page
202.
Others,
still,
are
reviewable
in
special
proceedings
for
retraction
and
annulment.
See
Audet,
pages
201-204.
Although
in
Abermin,
supra,
MacDonald,
J.
considered
the
seemingly
conflicting
lines
of
authority
as
reflecting
different
policy
considerations,
it
is
my
view
that
a
more
plausible
explanation
of
the
difference
between
the
Ontario
and
Alberta
standards
may
be
that
they
are
based
upon
different
constitutional
approaches
to
the
office
of
master.
In
Ontario,
the
approach
was
expressed
by
Middleton,
J.A.
in
Re
Solloway
Mills
&
Co.
in
liquidation,
[1935]
O.R.
37
(C.A.),
at
page
43
as
follows:
The
contention
that
the
Province
has
no
power
to
appoint
Masters
or
to
authorize
an
enquiry
before
any
of
the
Court's
officers,
because
they
are
executing
a
judicial
and
not
a
ministerial
power,
is
plausible
but
ill
founded.
Section
96
of
the
British
North
America
Act,
1867,
30-31
Viet.,
ch.
3,
requires
the
appointment
of
Judges
of
the
Superior
and
County
Courts
by
the
Governor
General
of
Canada,
but
this
does
not
prohibit
the
Province
from
appointing
an
officer
of
the
Court
who
may
exercise
some
judicial
functions.
In
contrast,
in
Wright
v.
Disposal
Services
Ltd.,
supra,
at
page
177,
Laycraft,
J.
justified
de
novo
review
on
the
basis
that:
The
superior
court
judge
possesses
that
jurisdiction
by
virtue
of
his
federal
appointment
under
the
powers
given
to
the
federal
Crown
by
the
B.N.A.
Act.
His
status
resulting
from
that
appointment
cannot
be
diminished
by
the
decision
of
the
Master
appointed
by
the
provincial
Crown.
Even
if
I
am
correct
in
my
assessment
of
the
reasons
for
the
differing
approaches,
it
is
not
necessary
in
this
appeal
to
decide
which
of
these
constitutional
positions
is
correct,
since
the
constitutional
infirmity
to
which
the
Alberta
master's
appointment
is
said
to
be
subject
does
not
extend
to
the
appointment
of
a
prothonotary
to
this
Court.
That
Parliament
has
constitutional
authority
by
virtue
of
section
101
of
the
Constitution
Act,
1867
to
appoint
both
prothonotaries
and
judges
of
this
Court
cannot
be
doubted.
That
was
the
conclusion
of
Jerome,
A.C.J.
in
/scar
Ltd.
v.
Karl
Hertel
GmbH,
[1989]
3
F.C.
479
(F.C.T.D.).
It
is
a
conclusion
with
which
I
am,
respectfully,
in
complete
agreement.
I
am
also
in
agreement
with
the
associate
chief
justice
where
he
said
at
page
484:
It
is
clear
from
paragraph
46(1)(h)
of
the
[Federal
Court]
Act
that
Parliament
did
not
intend
prothonotaries
to
act
simply
as
procedural
officers
of
the
Court.
On
the
contrary,
it
is
clear
from
that
section
that
Parliament
intended
prothonotaries
to
have
jurisdiction
of
a
judicial
nature.
What,
then,
should
the
standard
of
review
of
discretionary
orders
of
prothonotaries
of
this
Court
be?
It
is
of
paramount
importance
that
any
standard
adopted
must
recognize
Parliament's
intention,
embodied
in
section
12
of
the
Act,
that
the
office
of
prothonotary
is
designed
to
aid
in
"the
efficient
performance
of
the
work
of
the
Court".
Sir
Jack
Jacob
captured
the
essence
of
this
intent
in
the
following
passage
of
his
Hamlyn
Lectures:
They
fulfil
many
important
and
even
crucial
functions
in
the
English
judicial
system.
They
provide
a
more
speedy,
economical
and
convenient
machinery
for
pre-trial
and
post-judgment
applications;
they
perform
the
greater
volume
and
variety
of
the
judicial
work
at
the
stages
of
pre-trial
and
post-judgment
proceedings
which
would
otherwise
require
to
be
performed
by
a
Judge,
so
conserving
"judge-power"
for
more
important
work
and
making
more
efficient
use
of”
"judgetime".
.
.
.
I
reiterate
at
the
outset
that
Rule
336(5),
by
providing
for
a
right
of
appeal
from
all
orders
made
by
prothonotaries,
was
intended
to
satisfy
the
requirement
for
supervision
of
those
orders
as
required
by
paragraph
46(h)
of
the
Act.
A
question
was
raised
in
argument
as
to
whether
the
order
of
the
associate
senior
prothonotary
was
interlocutory
or
final.
In
my
view,
this
question
does
not
assist
us
in
determining
the
standard
of
review.
Rule
336(1)(g)
vests
in
the
prothonotary
authority
to
dispose
of
any
interlocutory
application
assigned
to
him
specially
.
.
.
by
special
or
general
direction
of
the
Chief
Justice
or
of
the
Associate
Chief
Justice”
[emphasis
added].
Once
it
is
determined
that
the
prothonotary
was
acting
within
jurisdiction,
then,
the
question
then
becomes
by
what
standard
his
decision
is
to
be
reviewed.
In
this
case,
there
is
no
question
that
the
application
as
a
result
of
which
the
order
was
made
was
interlocutory.
It
was
accordingly
an
application
which
the
associate
senior
prothonotary
had
jurisdiction
to
hear
by
virtue
of
Rule
336(1)(g)
and
the
general
direction
of
the
associate
chief
justice
to
which
I
have
already
referred.
The
question
remaining
to
be
answered,
then,
is
what
is
the
appropriate
standard
of
review
of
the
discretionary
order
which
the
associate
senior
prothonotary
made
in
disposing
of
that
application.
Until
the
decision
of
this
Court
in
The
Ship
"Jala
Godavari",
it
had
been
held
consistently
and
accepted
as
settled
law
in
the
Trial
Division
of
this
Court
that
an
appeal
from
a
discretionary
order
of
a
prothonotary
should
be
treated
in
the
same
manner
as
an
appeal
from
a
discretionary
order
of
a
motions
judge,
reviewable
for
error
rather
than
as
a
rehearing
on
the
merits.
In
Reading
&
Bates
Construction
Co.
v.
Baker
Energy
Resources
Corp.
(1988),
25
F.T.R.
226,
22
C.I.P.R.
240,
at
pages
228-29,
McNair,
J.
described
the
approach
as
follows:
Rule
336(5)
of
the
Federal
Court
Rules
provides
for
appeals
from
an
order
or
decision
of
a
prothonotary,
and
it
is
unnecessary
to
set
it
out
verbatim.
Suffice
it
to
say,
the
rule
has
been
the
subject
of
some
judicial
consideration.
In
my
view,
the
law
was
correctly
stated
by
Mr.
Justice
Collier
in
Reading
&
Bates
Construction
Co.
v.
Baker
Energy
Resources
Corp.
(1987),
12
C.I.P.R.
260,
at
pages
261-62
as
follows:
.
.
.
an
appeal
from
the
decision
of
a
Prothonotary
is
not
a
trial
de
novo
It
is
not
the
function
of
the
Trial
Division,
sitting
on
appeal
from
Prothonotaries,
to
substitute
its
discretion
for
that
of
the
Prothonotary.
It
must
be
shown
the
Prothonotary
was
wrong,
in
that
he
exercised
his
powers
on
a
wrong
principle,
or
on
a
complete
misapprehension
of
the
facts,
or
for
some
other
compelling
reason
requiring
interference
by
a
judge
sitting
in
an
appellate
position.
Ample
support
for
this
principle
may
be
found
in
the
case
of
Algonquin
Mercantile
Corp.
v.
Dart
Industries
Canada
Ltd.
(1984),
5
C.I.P.R.
40,
3
C.P.R.
(3d)
143
(F.C.A.)
wherein
the
Court
held
that
the
order
under
appeal,
being
discretionary,
should
be
overruled
only
if
the
motions
judge
was
clearly
wrong
on
the
facts,
or
proceeded
on
an
erroneous
principle
of
law,
or
his
decision
resulted
in
some
injustice
to
the
appellant.
None
of
these
circumstances
were
existent
in
the
case
on
appeal.
It
seems
to
me
that
it
is
now
authoritatively
settled
as
a
rule
of
practice
that
an
appeal
from
a
discretionary
order,
whether
it
be
that
of
a
prothonotary
or
a
motions
judge,
should
be
treated
as
an
appeal
rather
than
a
rehearing
on
the
merits,
and
the
order
appealed
from
should
be
interfered
with
only
when
it
can
be
demonstrated
that
such
order
was
clearly
wrong
in
law
or
on
the
facts.
[Emphasis
added.]
In
The
Ship
"Jala
Godavari",
however,
Hugessen,
J.A.,
writing
for
the
Court,
laid
down
a
different
standard
at
page
128:
[C]ontrary
to
a
view
that
has
sometimes
been
expressed
in
the
Trial
Division,
a
judge
who
hears
an
appeal
from
a
prothonotary
on
a
matter
involving
the
exercise
of
discretion
is
called
upon
to
exercise
his
own
discretion
and
is
not
bound
by
the
prothonotary's
opinion.
He
may,
of
course,
choose
to
give
weight
to
the
views
expressed
by
the
prothonotary,
but
the
parties
are,
in
the
final
analysis,
entitled
to
the
discretion
of
a
judge
and
not
that
of
a
subordinate
officer.
[Original
emphasis.]
The
standard
of
review
laid
down
in
The
Ship
"Jala
Godavari"
was
followed
in
Munsingwear
Inc.
v.
Prouvost
S.A.,
[1992]
2
F.C.
541
(C.A.);
Canastrand
Industries
Ltd.
v.
The
"Lara
S"
(unreported),
Action
No.
T-940-89,
May
14,
1992
(F.C.T.D.)
and
Ruhrkohle
Handel
Inter
GmbH
v.
Fednav
Ltd.,
[1992]
3
F.C.
99,
36
C.P.R.
(3d)
521
(C.A.).
Before
us,
counsel
for
the
appellant
contended,
both
in
written
and
oral
submissions,
that
the
motions
judge
had
applied
a
standard
of
review
that
was
inappropriate
to
the
circumstances
of
this
case.
He
argued
this
way:
the
order
which
the
associate
senior
prothonotary
made
in
this
case
was
an
interlocutory
order
made
upon
an
interlocutory
application;
that
order
did
not
decide
any
question
vital
to
the
final
issue
in
the
case,
and,
as
such
it
was
reviewable
only
for
error;
the
motions
judge
was
therefore
wrong
in
applying
the
standard
enunciated
in
The
Ship
"Jala
Godavari"
and
exercising
his
own
discretion.
In
this
connection,
counsel
for
the
appellant
urged
upon
us
that
the
proper
standard
of
review
of
discretionary
orders
of
prothonotaries
was
that
which
was
laid
down
in
Stoicevski,
supra,
and
adopted
in
Abermin
Corp.
v.
Granges
Exploration
Ltd.,
supra.
Counsel
for
the
respondent
submitted
in
paragraph
15
of
his
supplementary
memorandum
of
fact
and
law
that
such
a
standard
may
well
be
desirable
"as
a
means
of
balancing
the
competing
interests
of
judicial
due
process
in
vital
matters
and
administrative
expedition
in
routine
matters".
He
contended,
however,
that
in
this
case,
the
motions
judge
had
applied
the
proper
standard.
First,
he
said,
"the
Motions
Judge
explicitly
invoked
the
hearing
de
novo
standard
enunciated
by
Hugessen,
J.A.
(in
The
Ship
“Jala
Godavari")
and
applied
it”
[Respondent's
Supplementary
Memorandum
of
Fact
and
Law,
paragraph
11].
Secondly,
he
said,
that
"the
Motions
Judge
also
implicitly
applied
the
appellate
review
standard
"when
he
concluded
that
the
associate
senior
prothonotary
erred
in
principle
in
finding
that
the
respondent's
tardiness
in
moving
for
dismissal
of
the
action
had
excused
the
appellant's
failure
to
prosecute
the
action”
[Respondent's
Supplementary
Memorandum
of
Fact
and
Law,
paragraph
12].
Counsel
also
contended
that
the
de
novo
standard
“is
the
proper
standard
to
apply
in
cases
such
as
the
present,
where
the
motion
is
vital
to
the
ultimate
outcome
of
the
claim”
[Respondent's
Supplementary
Memorandum
of
Fact
and
Law,
paragraph
13].
I
am
in
agreement
with
counsel
for
the
appellant
that
the
proper
standard
of
review
of
discretionary
orders
of
prothonotaries
in
this
Court
should
be
the
same
as
that
which
was
laid
down
in
Stoicevski
for
masters
in
Ontario.
I
am
of
the
opinion
that
such
orders
ought
to
be
disturbed
on
appeal
only
where
it
has
been
made
to
appear
that
(a)
they
are
clearly
wrong,
in
the
sense
that
the
exercise
of
discretion
by
the
prothonotary
was
based
upon
a
wrong
principle
or
upon
a
misapprehension
of
the
facts,
or
(b)
in
making
them,
the
prothonotary
improperly
exercised
his
discretion
on
a
question
vital
to
the
final
issue
of
the
case.
In
each
of
these
classes
of
cases,
the
motions
judge
will
not
be
bound
by
the
opinion
of
the
prothonotary;
but
will
hear
the
matter
de
novo
and
exercise
his
or
her
own
discretion.
As
counsel
for
the
respondent
himself
has
submitted,
in
paragraph
15
of
his
supplementary
memorandum
of
fact
and
law,
this
standard
balances
judicial
due
process
on
questions
vital
to
the
final
issue
of
a
case
with
administrative
expedition
in
routine
matters.
Moreover,
such
a
standard
is
consistent
with
the
Parliamentary
intention
embodied
in
section
12
of
the
Act,
that
the
office
of
prothonotary
is
intended
to
promote"
the
efficient
performance
of
the
work
of
the
Court”.
In
my
respectful
view
it
cannot
reasonably
be
said
that
a
standard
of
review
which
subjects
all
impugned
decisions
of
prothonotaries
to
hearings
de
novo
regardless
of
the
issues
involved
in
the
decision
or
whether
they
decide
the
substantive
rights
of
the
parties
is
consistent
with
the
statutory
objective.
Such
a
standard
conserves
neither"
judge
power”
nor"judge
time”.
In
every
case,
it
would
oblige
the
motions
judge
to
rehear
the
matter.
Furthermore,
it
would
reduce
the
office
of
a
prothonotary
to
that
of
a
preliminary
rest
stop"
along
the
procedural
route
to
a
motions
judge.
I
do
not
think
that
Parliament
could
have
intended
this
result.
On
this
analysis,
it
is
my
view
that
the
standard
of
review
laid
down
in
The
Ship
"Jala
Godavari"
is
incomplete.
It
follows
from
this
that
the
motions
judge
did
not
apply
the
proper
standard
of
review
to
the
discretionary
order
of
the
discretionary
order
of
the
associate
senior
prothonotary
in
this
case.
Although
on
the
basis
of
the
Canadian
and
English
authorities
set
out
above,
it
is
in
my
view
clear
that
the
authority
of
the
prothonotaries
of
this
Court
should
not
be
limited
in
any
way
suggested
in
The
Ship
“Jala
Godavari",
there
is
a
decision
on
point
from
the
Supreme
Court
of
New
South
Wales
which
I
feel
to
also
be
of
some
interest.
Do
Carmo
v.
Ford
Excavations,
[1981]
1
N.S.W.L.R.
409
(aff’d
[1981]
1
N.S.W.L.R.
410
(C.A.),
overruled
in
part
on
different
grounds
[1981]
2
N.S.W.L.R.
235,
varied
on
different
grounds
(1984),
58
A.L.J.R.
287
(Aus.H.C.)),
involved
the
very
same
question
at
issue
here,
viz,
the
way
in
which
the
decision
of
a
master
ought
to
be
regarded
on
appeal.
After
a
very
thorough
review
of
the
law,
Cross,
J.
concluded
that
in
New
South
Wales,
unlike
in
England
or
certain
other
Australian
states,
a
master
was
the
Court,
rather
than
merely
an
officer
of
the
Court,
and
his
decisions
were
therefore
to
be
treated
as
judicial
decisions
of
first
instance.
While
this
is
not
as
clearly
the
case
with
this
Court,
I
think
that
Cross,
J.'s
observations
at
page
420
about
the
value
of
masters
in
the
efficient
operation
of
the
judicial
process
bear
repeating
in
the
present
situation:
[P]art
of
the
scheme
of
the
Supreme
Court
Act
and
rules
was
to
set
up
a
body
of
judicial
officers
who
were,
or
who
would
quickly
become,
expert
in
the
practice
and
procedure
of
the
court
and
who
could
readily
and
expertly
decide
practice
and
procedural
problems.
Provided
they
exercised
their
discretion
judicially
—
as
normally
they
would
—
that
was
to
be
the
end
of
the
matter.
2.
Whether
the
motions
judge
erred
in
allowing
the
respondent's
appeal
and
setting
aside
the
order
of
the
associate
senior
prothonotary.
If
the
motions
judge
had
applied
the
appropriate
standard
of
review,
he
would
have
inquired
whether
the
order
of
the
associate
senior
prothonotary
was
Clearly
wrong
in
the
sense
that
I
have
indicated,
or
whether
it
involved
the
improper
exercise
of
discretion
on
a
question
vital
to
the
final
issue
of
the
case.
As
I
have
already
explained,
the
motions
judge
did
neither.
He
relied
instead
on
the
incomplete
standard
laid
down
in
The
Ship
"Jala
Godavari"
and
exercised
his
own
discretion
without
first
determining
whether
he
could
properly
do
so.
In
these
circumstances,
it
becomes
necessary
to
review
the
reasons
of
the
associate
senior
prothonotary
in
light
of
the
standard
I
have
proposed
as
appropriate
to
determine
whether
the
motions
judge
was
justified
in
reversing
the
order
in
appeal
before
him.
I
begin
with
the
first
branch
of
the
standard,
i.e.
whether
the
order
of
the
associate
senior
prothonotary
was
clearly
wrong.
I
note
that
there
was
no
allegation
here
that
the
associate
senior
prothonotary
misapprehended
the
facts.
I
will
therefore
say
no
more
about
it.
The
error
alleged
by
the
respondent
and
accepted
by
the
motions
judge
was
that
the
associate
senior
prothonotary
based
his
decision
on
a
wrong
principle
when
he
took
into
account
the
conduct
of
the
respondent
in
the
litigation.
It
is
useful
to
recall
here
the
dispositive
reasons
of
the
associate
senior
prothonotary.
After
he
had
detailed
the
conduct
of
both
solicitors
throughout
the
litigation,
he
noted:
Having
apparently
excused
a
one-year
delay
prior
to
March,
1988,
and
a
further
two-year
delay
prior
to
May,
1990,
or
if
it
did
not
excuse
those
delays
to
have
done
nothing
about
either
of
them
until
June
of
1991,
the
defendant
cannot
be
heard
to
complain
at
this
late
date
of
the
plaintiff's
failure
to
proceed
expeditiously
at
earlier
times
nor
of
the
plaintiff's
failure
to
react
to
the
defendant's
delays
in
commenting
on
the
agreed
statement
of
facts.
Indeed,
it
was
largely
because
he
had
taken
this
conduct
into
account
that
the
motions
judge
found
him
to
have
been
in
error.
In
my
view,
in
taking
such
conduct
into
account,
the
associate
senior
prothonotary
was
acting
in
accordance
with
well-settled
principles
which
have
been
accepted
by
this
Court.
See
Norton
Co.
v.
Lionite
Abrasives
Ltd.
(1976),
32
C.P.R.
(2d)
270
(F.C.T.D.);
Minnesota
Mining
&
Manufacturing
Co.
v.
Loran
Inc.,
[1984]
1
F.C.
380,
73
C.P.R.
(2d)
176
(T.D.);
and
McGregor
v.
Canada
(1988),
20
F.T.R.
122.
It
is
true,
as
the
Ontario
Court
of
Appeal
held
in
Farrar
v.
McMullen,
[1971]
1
O.R.
709
(and
as
was
referred
to
by
the
motions
judge),
that
a
demand
for
action
by
the
defendant
is
not
a
condition
precedent
to
an
application
for
dismissal
on
the
basis
of
want
of
prosecution
in
every
case,
but
in
my
view,
there
can
be
no
doubt
that
the
level
of
litigious
activity
or
inactivity
on
the
part
of
the
defendant
is
a
relevant
factor
to
be
taken
into
account
in
determining
whether
a
delay
has
been
inordinate
or
inexcusable,
and
whether
a
party
has
been
seriously
prejudiced
by
it.
It
is,
as
Farrar
suggests,
one
of
the
circumstances
to
be
considered.
In
arriving
at
his
conclusion,
the
associate
senior
prothonotary
did
no
more.
The
English
courts,
too,
have
considered
the
conduct
of
the
parties
to
be
relevant
in
similar
circumstances.
In
Allen
v.
Sir
Alfred
McAlpine
&
Sons
Ltd.,
[1968]
2
Q.B.
229,
[1968]
1
All
E.R.
543
(C.A.),
for
example
(upon
which
counsel
for
the
respondent
placed
much
reliance),
each
member
of
the
Court
of
Appeal
considered
the
defendant's
conduct
to
be
of
importance.
Diplock,
L.J.
(as
he
then
was)
made
this
point
quite
clearly
when
he
said
at
page
556
(All
E.R.):
Since
the
power
to
dismiss
an
action
for
want
of
prosecution
is
only
exercisable
on
the
application
of
the
defendant
his
previous
conduct
in
the
action
is
always
relevant.
So
far
as
he
himself
has
been
responsible
for
any
unnecessary
delay,
he
obviously
cannot
rely
on
it.
Moreover,
if
after
the
plaintiff
has
been
guilty
of
unreasonable
delay
the
defendant
so
conducts
himself
as
to
induce
the
plaintiff
to
incur
further
costs
in
the
reasonable
belief
that
the
defendant
intends
to
exercise
his
right
to
proceed
to
trial
notwithstanding
the
plaintiff's
delay,
he
cannot
obtain
dismissal
of
the
action
unless
the
plaintiff
has
thereafter
been
guilty
of
further
unreasonable
delay.
In
light
of
the
principles
laid
down
in
these
cases,
I
am
of
the
view
that
the
associate
senior
prothonotary
did
not
act
on
a
wrong
principle
and
that
his
order
was
not
clearly
wrong.
I
turn
now
to
the
second
branch
of
the
standard,
namely,
whether
the
order
of
the
associate
senior
prothonotary
raised
questions
vital
to
the
final
issue
of
the
case.
It
was
the
contention
of
counsel
for
the
respondent
in
paragraph
13
of
his
supplementary
memorandum
of
fact
and
law
that
the
motion
before
the
associate
senior
prothonotary
was"
vital
to
the
outcome
of
the
claim”.
For
that
reason,
he
submitted
that
the
motions
judge
was
justified
in
refusing
deference
of
the
discretion
of
the
associate
senior
prothonotary
and
exercising
his
own.
This
contention
is
not
well-founded,
in
my
opinion.
The
order
which
the
associate
senior
prothonotary
made
was
interlocutory:
it
did
not
decide
the
substantive
rights
of
the
parties
or
any
issue
vital
to
the
final
issue
of
the
litigation.
Its
sole
effect
was
that
the
appellant
was
entitled
to
proceed
to
trial
in
accordance
with
the
rules
and
practice
of
this
Court.
As
such,
it
decided
a
matter
that
was
wholly
collateral
to
the
issues
in
dispute
between
the
parties
in
the
litigation.
As
the
pleadings
clearly
show,
delay
in
prosecution
was
not
an
issue
in
dispute
in
the
action.
In
my
view,
therefore,
it
cannot
reasonably
be
said
that
the
order
made
by
the
associate
senior
prothonotary
raised
questions
vital
to
the
final
issue
of
the
case.
The
test
to
be
applied
in
deciding
whether
to
dismiss
an
action
for
want
of
prosecution
was
set
out
in
the
decision
of
Dubé,
J.
in
Nichols
v.
Canada
(1990),
36
F.T.R.
77
(F.C.T.D.).
Relying
upon
the
judgment
of
Salmon,
L.J.
(as
he
then
was)
in
Allen
v.
Sir
Alfred
McAlpine
&
Sons
Ltd.,
supra,
at
page
268
(Q.B.),
Dubé,
J.
stated
at
page
78:
The
classic
test
to
be
applied
in
these
matters
is
threefold:
first,
whether
there
has
been
an
inordinate
delay;
secondly,
is
the
delay
inexcusable;
and
thirdly,
whether
the
defendants
are
likely
to
be
seriously
prejudiced
by
the
delay.
In
Birkett
v.
James,
[1977]
2
All
E.R.
801,
[1978]
A.C.
297
(H.L.),
the
House
of
Lords
affirmed
the
principles
set
out
in
Allen
and
expounded
upon
the
grounds
for
dismissal
for
want
of
prosecution.
Lord
Diplock
(who,
as
I
have
noted,
delivered
one
of
the
judgments
in
Allen)
said
that
Allen
had
set
out
the
following
principles.
The
power
to
strike
out
a
claim
for
want
of
prosecution,
he
said
at
page
318
(A.C.):
.
.
.
should
be
exercised
only
where
the
Court
is
satisfied
either
(1)
that
the
default
had
been
intentional
and
contumelious,
e.g.
disobedience
to
a
peremptory
order
of
the
court
or
conduct
amounting
to
an
abuse
of
the
process
of
the
court;
or
(2)
(a)
that
there
has
been
inordinate
and
inexcusable
delay
on
the
part
of
the
plaintiff
or
his
lawyers,
and
(b)
that
such
delay
will
give
rise
to
a
substantial
risk
that
it
is
not
possible
to
have
a
fair
trial
of
the
issues
in
the
action
or
is
such
as
is
likely
to
cause
or
to
have
caused
serious
prejudice
to
the
defendants
either
as
between
themselves
and
the
plaintiff
or
between
each
other
or
between
them
and
a
third
party.
More
recently,
in
Department
of
Transport
v.
Chris
Smaller
(Transport)
Ltd.,
[1989]
A.C.
1197
(H.L.),
Lord
Griffiths,
in
aspeech
in
which
all
other
members
of
the
House
concurred,
reaffirmed
the
same
point.
At
pages
1207-8,
he
said:
The
principles
in
Allen
v.
McAlpine
and
Birkett
v.
James
are
now
well
understood
and
I
have
not
been
persuaded
that
a
case
has
been
made
out
to
abandon
the
need
to
show
that
the
post
writ
delay
will
either
make
a
fair
trial
impossible
or
prejudice
the
defendant.
See
also:
Walkley
v.
Precision
Forgings
Ltd.,
[1979]
1
W.L.R.
606,
[1979]
2
All
E.R.
548
(H.L.),
Bremer
Vulkan
Schiffbau
und
Maschinenfabrik
v.
South
Indian
Shipping
Corp.,
[1981]
A.C.
909,
[1981]
1
All
E.R.
289
(H.L.)
and
Paul
Wilson
&
Co.
A/S
v.
Partenreederei
Hannah
Blumenthal,
[1983]
1
A.C.
854
(H.L.).
A
review
of
the
decision
of
the
associate
senior
prothonotary
makes
it
abundantly
clear
that
he
considered
each
element
of
this
test
in
reaching
his
conclusion,
albeit
in
different
language.
Accordingly,
for
all
of
these
reasons,
it
is
my
view
that
the
motions
judge
erred
in
allowing
the
respondent's
appeal
and
setting
aside
the
order
of
the
associate
senior
prothonotary.
In
Birkett
v.
James,
their
Lordships
also
made
an
important
observation
on
the
consequences
of
an
order
to
dismiss
for
want
of
prosecution,
which
I
think
is
critical
to
a
proper
understanding
of
the
nature
of
an
order
to
dismiss
a
proceeding
for
want
of
prosecution.
In
most
circumstances,
the
House
noted,
such
an
order
is
not
a
bar
to
further
action.
[Exceptional
cases
apart"
(chief
of
which
would
include
the
expiry
of
a
limitation
period),
Lord
Diplock
said
at
page
321
(A.C.):
.
.
.
where
all
that
the
plaintiff
has
done
has
been
to
let
the
previous
action
go
to
sleep,
the
court
in
my
opinion
would
have
no
power
to
prevent
him
starting
a
fresh
action
within
the
limitation
period
and
proceeding
with
it
with
all
proper
diligence
notwithstanding
that
his
previous
action
had
been
dismissed
for
want
of
prosecution.
Similarly,
Lord
Salmon,
who
had
also
delivered
one
of
the
judgments
in
Allen,
said
that"
[t]he
fact
that
the
plaintiff
or
his
solicitor
has
behaved
badly
in
the
first
action
does
not
make
him
into
a
vexatious
litigant
barred
from
bringing
any
further
proceedings
without
permission
of
the
courts"
(page
328
(A.C.)).
See
also
the
speech
of
Lord
Edmund-Davies
at
page
334
(A.C.).
These
things
being
the
case,
Lord
Diplock
made
an
important
observation
which
I
think
should
be
borne
in
mind
whenever
a
motion
to
dismiss
is
being
contemplated:
Crucial
to
the
question
whether
an
action
ought
to
be
dismissed
for
want
of
prosecution
before
the
expiry
of
the
limitation
period
is
the
answer
to
a
question
that
lies
beyondit,
viz.,
whether
a
plaintiff
whose
action
has
been
dismissed
may
issue
a
fresh
writ
for
the
same
cause
of
action.
If
he
does
so
within
the
limitation
period,
the
effect
of
dismissing
the
previous
action
can
only
be
to
prolong
the
time
which
must
elapse
before
the
trial
can
take
place
beyond
the
date
when
it
could
have
been
held
if
the
previous
action
had
remained
on
foot.
Upon
issuing
the
new
writ
the
plaintiff
would
have
the
benefit
of
additional
time
for
repeating
such
procedural
steps
as
he
had
already
completed
before
the
action
was
dismissed.
This
can
only
aggravate;
it
can
never
mitigate
the
prejudice
to
the
defendant
from
delay.
[Emphasis
added.]
In
Department
of
Transport
v.
Chris
Smaller
(Transport)
Ltd.,
supra,
Lord
Griffiths,
speaking
for
the
House,
made
a
similar
observation
on
the
appropriateness
of
an
order
to
dismiss
after
the
expiry
of
a
limitation
period.
At
page
1207
(A.C.),
he
said:
However,
[counsel
for
the
appellants]
submits
that
once
the
limitation
period
has
expired
so
that
the
plaintiff
cannot
commence
a
fresh
action,
inordinate
and
inexcusable
delay
in
the
conduct
of
the
litigation
should
be
a
ground
for
striking
out
even
though
there
can
be
a
fair
trial
of
the
issues
and
the
defendant
has
suffered
no
prejudice
from
the
delay.
What
would
be
the
purpose
of
striking
out
in
such
circumstances?
If
there
can
be
a
fair
trial
and
the
defendant
has
suffered
no
prejudice,
it
clearly
cannot
be
to
do
justice
between
the
parties
before
the
court;
as
between
the
plaintiff
and
defendant
such
an
order
is
manifestly
an
injustice
to
the
plaintiff.
The
only
possible
purpose
of
such
an
order
would
be
as
a
disciplinary
measure
which
by
punishing
the
plaintiff
will
have
a
beneficent
effect
upon
the
administration
of
justice
by
deterring
others
from
similar
delays.
I
have
no
faith
that
the
exercise
of
the
power
in
these
circumstances
would
produce
any
greater
impact
on
delay
in
litigation
than
the
present
principles.
Given
the
absence
of
a
showing
of
prejudice
by
the
respondent
here,
I
find
the
sentiments
there
expressed
appropriate
in
the
circumstances
of
this
case.
Before
parting
with
the
matter,
there
is
one
other
important
aspect
of
this
case
which
I
should
like
to
mention.
It
is
clear
to
me
from
a
review
of
the
record
in
this
appeal
that
counsel
had
agreed
to
by-pass
the
Federal
Court
Rules,
by
proceeding
by
agreed
statement
of
facts
and
waiving
certain
procedural
steps,
such
as
delivery
of
lists
of
documents
and
examinations
for
discovery.
In
my
view
this
agreement
was
a
relevant
circumstance
to
consider
in
assessing
the
conduct
of
the
solicitors
for
both
parties.
There
is
no
evidence
that
the
respondent
had
repudiated
the
agreement.
The
reasons
of
the
motions
judge
are
devoid
of
any
hint
that
he
was
alive
to
this
contextual
fact;
and
it
may
well
be
that,
absent
repudiation
or
some
other
warning,
the
appellants
solicitor
was
induced
to
act
on
the
assumption
that
respondent
intended
to
continue
the
litigation.
There
is
no
doubt,
as
the
associate
senior
prothonotary
found
and
as
the
record
discloses,
that
the
appellant’s
solicitor
was
dilatory
in
delivering
the
agreed
statement
of
facts.
However,
when
it
was
delivered,
respondent's
counsel
deliberately
refused
to
react
for
well
over
one
year.
When
he
did
react,
it
was
by
notice
of
motion
under
Rule
440(1),
but
without
even
complying
with
the
provisions
of
Rule
440(2)
which
require
that
prior
warning
be
given
before
a
motion
under
Rule
440(1)
is
launched.
Fortunately
for
the
respondent,
in
argument
before
us
appellant's
counsel
informed
us
that
he
was
not
invoking
non-compliance
with
Rule
440(2)
as
a
ground
of
error
since
it
was
his
position
throughout
that
counsel
for
the
parties
had
agreed
to
by-pass
the
rules.
I
would,
therefore,
allow
the
appeal
with
costs,
both
here
and
below,
set
aside
the
order
of
the
motions
judge
dated
November
8,
1991
and
restore
the
order
of
the
associate
senior
prothonotary
dated
September
30,
1991.
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