Her Majesty the Queen v. Aqua-Gem Investments Limited, [1991] 2 CTC 277, 91 DTC 5641

Rouleau, J.: —This motion by the defendant is for an order pursuant to Rule 336(5) of the Federal Court Rules reversing the decision of the Associate Senior Prothonotary dated September 30, 1991, wherein he refused to grant the defendant's motion for an order dismissing the plaintiff's action for want of prosecution.

The history of this action, and more importantly, the procrastination on the part of both sides, is neatly set out in the impugned decision of Giles, A.S.P. in the following manner:

The Statement of Claim was filed on July 29th, 1986. A delay ensued while parties awaited a Supreme Court of Canada decision on similar facts. A Statement of Defence was filed on March 5th, 1987. On March 23rd, 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 28th, 1988, to furnish a draft Agreed Statement of Facts.

On the 15th of May, 1990, the plaintiff sent a draft Statement of Agreed Facts with covering letter dated the 14th of May, 1990. On the 15th of January, 1991, the plaintiff again asked for a reply to its letter of the preceding May. In June of 1991, the defendant moved for a stay in light of the plaintiff's delays in prosecuting the action.

Giles, A.S.P. dismissed the motion on the grounds that the defendant's own delay throughout the litigation did not allow it to complain of the plaintiff's failure to proceed expeditiously. He agreed that the plaintiff's two-year delay in furnishing an agreed statement of facts would have supported a successful motion to dismiss for want of prosecution had such an application been made in a reasonably timely fashion. However, in his view the defendant's subsequent failure to take any action for an inordinate length of time, precluded the grant of an order dismissing the plaintiff's action for want of prosecution.

The defendant argued before me that the Associate Senior Prothonotary erred in principle when he held that although the plaintiff's lack of action prior to May 1990 might well have supported a motion to dismiss at that time, the defendant's subsequent silence excused the plaintiff's delay.

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 (A-112-91, October 18, 1991), 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.

I am granting the defendant's motion and allowing its appeal from the decision of the Associate Senior Prothonotary. In order to succeed on an application to dismiss an action for want of prosecution, the defendant must snow that there has been inordinate delay which is inexcusable and that it will likely be seriously 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 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 the 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.

In Farrar v. McMullan, [1971] O.R. 709, a case very similar the one at bar, the Senior Master refused an application to dismiss the action for want of prosecu tion on the grounds that the defendant had also been guilty of delay and had taken an undue length of time in bringing the application. Gale, C.J.O. writing for the Ontario Court of Appeal unequivocally rejected the notion at page 711:

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 for 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.

I am of the view that the Associate Senior Prothonotary was in error when he refused to grant the motion to dismiss 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. For the reasons set out above, the defendant's motion is allowed and the decision of the Senior Prothonotary is set aside. Costs to the defendant.

Appeal allowed.