Date: 19991022
Docket: T-2168-95
BETWEEN:
SRP INDUSTRIES LTD., DEDO SUWANDA
VINCENT WEIXING ZHOU and ARUNAS A. PABEDINSKAS
Plaintiffs
-and-
RAYMOND T. WOODHAMS, THE GOVERNING COUNCIL
OF THE UNIVERSITY OF TORONTO and
THE MANUFACTURING CORPORATION OF ONTARIO
Defendants
REASONS FOR ORDER AND ORDER
LAFRENIÈRE P.:
[1] By Order dated August 31, 1999 made pursuant to Rule 385(2) of the Federal Court Rules, 1998, the Plaintiffs were required to show cause why their action should not be dismissed for delay no later than September 15, 1999. Having missed the deadline to respond to the status review, the Plaintiff SRP Industries Ltd. brought a motion for an extension of time for filing its written submissions. In the circumstances, an extension of time was granted. Consequently, a status review was conducted based on the representations of both parties.
[2] This action was the subject of a status review back in February 1999 and was allowed to continue as a specially managed proceeding by Order of Mr. Justice Campbell dated April 9, 1999. By August 31, 1999, the Plaintiffs had yet to take any action to move the proceeding along or to seek directions from the case management judge. As a result of the Plaintiffs" inaction, a further status review was ordered to be held.
[3] The Plaintiff SRP Industries Ltd. has attempted to justify the delay by pleading financial hardship, illness on the part of its president and chief operating officer, Mr. Sung, and its inability to retrieve the litigation file from its former solicitors. As for the other Plaintiffs, no written submissions were received on their behalf.
[4] The Defendants submit that no valid reason has been advanced why this action should not be dismissed. They argue that no steps have been taken by the Plaintiffs since October 17, 1996 and that no attempts have been made to schedule examinations for discovery either before or since the matter was allowed to continue following status.
[5] Mr. Justice Hugessen established the following test to be applied by the Court when conducting a status review in Baroud v. Canada, [1998] F.C.J. No. 179. In deciding in what manner to exercise the wide discretion granted to it by Rule 382 at the conclusion of a status review, it seems to me that the Court needs to be concerned primarily with two questions:
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1. what are the reasons why the case has not moved forward faster and do they justify the delay that has occurred?; and |
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2. what steps is the plaintiff now proposing to move the matter forward ? |
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The two questions are clearly inter-related in that if there is a good excuse for the case not having progressed more quickly, the Court is not likely to be very exigent in requiring an action plan from the plaintiff. On the other hand, if no good reason is advanced to justify the delay, the plaintiff should be prepared to demonstrate that he recognizes that he has a responsibility to the Court to move his action along. Mere declarations of good intent and of the desire to proceed are clearly not enough. |
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[6] The delay which the Plaintiffs are required to justify is the five month period from April 9, 1999 (when the matter was allowed to continue) to August 31, 1999 (when the Plaintiffs were required once again to show cause why the action should not be dismissed). In order to be allowed to continue with their action, the Plaintiffs therefore had to satisfactorily explain their delay and demonstrate that concrete steps would be taken to move the matter forward.
[7] The explanations offered by the Plaintiff SRP Industries Ltd. fail, in my view, to justify the inordinate delay in these proceedings. I cannot ignore the entire history of delay in this action in determining reasonableness of the explanation being tendered at this time. The financial difficulties of the Plaintiff SRP Industries Ltd. appear to persist to this day and there is no indication that same will be resolved in the near future. As well, the bald assertion that Mr. Sung has experienced serious health problems in the past year, without more, cannot serve to excuse the continued dilatoriness of the Plaintiffs.
[8] Moreover, the Plaintiffs have completely failed to propose any steps in the immediate future to move the proceeding along. In the circumstances, I have serious doubts about the Plaintiffs intention to pursue this action diligently in the future.
[9] I have therefore concluded that this matter should be dismissed for delay.
ORDER
[10] The time for filing the Plaintiffs" written submissions in response to the Order dated August 31, 1999 is extended nunc pro tunc .
[11] The action is dismissed.
"Roger R. Lafrenière"
Prothonotary
TORONTO, ONTARIO
October 22, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: SRP INDUSTRIES LTD., DEDO SUWANDA VINCENT WEIXING ZHOU and ARUNAS A. PABEDINSKAS |
| RAYMOND T. WOODHAMS, THE GOVERNING COUNCILOF THE UNIVERSITY OF TORONTO and THE MANUFACTURING CORPORATION OF ONTARIO |
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369
| REASONS FOR ORDER AND ORDER BY: LAFRENIÈRE P. |
DATED: FRIDAY, OCTOBER 22, 1999
SOLICITORS OF RECORD: Robert F. Tighe
Barrister & Solicitor
Suite 1700
150 York Street
Toronto, ON
M5H 3S5
Sim, Hughes, Ashton & MacKay
Barristers & Solicitors
330 University Avenue
6 th Floor
Toronto, Ontario
M5G 1R7
For the Defendants
FEDERAL COURT OF CANADA
Date:19991022
Docket: T-2168-95
Between:
| SRP INDUSTRIES LTD., DEDO SUWANDA VINCENT WEIXING ZHOU and ARUNAS A. PABEDINSKAS |
Plaintiffs
- and -
| RAYMOND T. WOODHAMS, THE GOVERNING COUNCIL OF THE UNIVERSITY OF TORONTO and THE MANUFACTURING CORPORATION OF ONTARIO |
Defendants
AND ORDER
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