Giles,
A.S.P.:—The
motion
before
me
in
this
case
on
September
30,
1991,
was
for
a
stay
under
section
50
of
the
Federal
Court
Act
or
in
the
alternative
dismissing
the
action
for
want
of
prosecution.
I
dismissed
the
motion.
Counsel
have
now
asked
for
my
reasons
in
writing.
These
are
those
reasons.
The
statement
of
claim
was
filed
on
July
29,
1986.
A
delay
ensued
while
parties
awaited
a
Supreme
Court
of
Canada
decision
on
similar
facts.
A
statement
of
defence
was
filed
on
March
5,
1987.
On
March
23,
1988,
the
plaintiff
sent
the
defendant
the
plaintiff's
list
of
documents,
asked
for
the
defendant's
list
and
suggested
the
possibility
of
an
agreement
as
to
facts.
It
is
apparent
that
the
parties
communicated
and
that
the
plaintiff's
solicitors
agreed
on
March
28,
1988,
to
furnish
a
draft
agreed
statement
of
facts.
On
May
15,
1990,
the
plaintiff
sent
a
draft
statement
of
agreed
facts
with
covering
letter
dated
May
14,
1990.
On
October
24,
1990,
the
plaintiff
asked
for
a
reply
to
the
letter
of
May
1990.
On
January
15,
1991,
the
plaintiff
again
asked
for
a
reply
to
its
letter
of
the
preceding
May.
In
June
1991,
the
defendant
moved
for
a
stay
in
light
of
the
plaintiff's
delays
in
prosecuting
the
action.
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
substantial
evidence
from
the
witness
at
the
trial
in
the
Tax
Court
and
no
doubt
transcripts
of
that
testimony
will
go
far
to
refresh
the
witness's
memory.
The
delay
prior
to
March
1987
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
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
March
28,
1988,
the
plaintiff
agreed
to
draft
a
statement
of
facts
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
1990,
the
defendant
could
again
have
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
parties
in
March
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
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.
For
these
reasons
I
dismissed
the
defendant's
motion.
Motion
dismissed.
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