Leonard v. R., [1996] 2 CTC 271, 96 DTC 6171

John A. Hargrave Prothonotary: — The defendant seeks to have this action, commenced in march of 1987, dismissed for want or prosecution. There is no issue as to the test to be applied: it is the three-part test set out by the Court of Appeal in Allen v. Sir Alfred McAlpine & Sons Ltd., [1968] 2 Q.B. 229, All E.R. 543:

(1) that there has been inordinate delay. It would be highly undesirable and indeed impossible to attempt to lay down a tariff - so many years or more on one side of the line and a lesser period on the other. What is or is not inordinate delay must depend upon the facts of each particular case. These vary infinitely from case to case, but inordinate delay should not be too difficult to recognize when it occurs.

(2) that this inordinate delay is inexcusable. As a rule, until a credible excuse is made out, the natural inference would be that it is inexcusable.

(3) that the defendants are likely to be seriously prejudiced by the delay. This may be prejudice at the trial of the issue between themselves and the plaintiff, or between each other, or between themselves and the third parties. In addition to any inference that may properly be drawn from the delay itself, prejudice can sometimes be directly proved. As a rule, the longer the delay, the greater the likelihood of serious prejudice at the trial. (Salmon L.J. at pages 268-69)

This test has been applied many times by our Court and by the Federal Court of Appeal, for example in R. v. Aqua-Gem Investments Ltd., (sub nom. Aqua-Gem Investments Ltd. v. Minister of National Revenue), [1993] 1 C.T.C. 186, 93 D.T.C. 5080 (F.C.A.).

This appeal, by Mr. Leonard, concerns his 1979 and 1982 taxation years. The Defendant, in her application in writing for dismissal for want of prosecution, has established inordinate delay. Counsel for the Plaintiff points out that the Court should not consider the time elapsed between accrual of the cause of action and the commencement of proceedings, referring to Department of Transport v. Chris Smaller (Transport) Ltd., [1989] 1 A.C. 1197, 2 W.L.R. 578. On the basis of the Chris Smaller case the Plaintiff ought not to be penalized for the delay before the writ is issued, but only for the time gone by since the commencement of the proceedings. In the present case not only has nearly eleven years gone by since the commencement of the case, but it has been a little more than seven years since the last step in the proceeding. This delay is easily recognizable as inordinate.

The present counsel for the Plaintiff seeks to justify the delay by pointing to difficulties in retaining three sets of counsel, over the past five years, all of whom appear to have declined to act. Counsel for the Defendant refers to Patex Snowmobiles Ltd. v. Bombardier Ltd. (1991), 48 F.T.R. 221, 37 C.P.R. (3d) 467, in which Mr. Justice Strayer, as he then was, commented that the fact that the plaintiff had retained three different counsel over the years might explain the delay, but not excuse it (p. 224). The Federal Court of Appeal dismissed the appeal from that decision, (1993), 48 C.P.R. (3d) 555.

The Plaintiff also offers, as an excuse for the delay, that his financial circumstances have been such that he was unable to proceed with his appeal. While I am sympathetic with this reason, one must also look at the delay from the point of view of the Defendant who, fairly consistently throughout the years, has pressed the Plaintiff to get on with the action. It is not proper that a plaintiff be allowed to hold an action over defendant for years on end on account of a lack of funding: a defendant ought not to be held in a state of uncertainty for a number of years merely because the plaintiff cannot afford to proceed with an action. Again, lack of funding may be a reason, but over a lengthy period of time, such as in the present instance, it is not an excuse.

Finally, the Plaintiff raises the issue of his ill health in the context that it attributed to his financial situation and inability to proceed with the appeal. I have already dealt with the financial aspect. I would also note that the evidence of ill health as submitted on behalf of the Plaintiff is insufficient in that it sets out his present state of health, but in referring to medical problems “in the past” there is no time frame. I am not prepared to accept this undelineated time frame for ill health as an excuse.

The Defendant submits that the passage of time, where inordinate delay has been found, is sufficient grounds for dismissal in some instances even though there may be no prejudice flowing from the delay and refers to Wilder v. Canada, [1989] 2 C.T.C. 322 (F.C.T.D.), in which an action was dismissed for want of prosecution on the basis of inordinate delay alone and that delay being of not great duration. In addition, the Defendant refers to R. v. Aqua-Gem Investments Ltd. (sub nom. Aqua-Gem Investments Ltd. v. Minister of National Revenue), [1991] 2 C.T.C. 277, 91 D.T.C. 5641; affirmed [1993] 1 C.T.C. 186, 93 D.T.C. 5080, in which Mr. Justice Rouleau noted that there was a general rule “...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.” (page 278), which was upheld on appeal without comment on this point by the majority, but with Mr. Justice of Appeal Robertson, who wrote one of the two dissenting judgments, casting some doubt on this presumption at pages 211-12. Lord Griffith, who wrote the reasons in the Chris Smaller case [supra], commented at page 1199 that he had not been persuaded that the concept of having to show that the delay would make a fair trial impossible, or prejudice the defendant, a principle in Allen v. Sir Alfred McAlpine & Sons Ltd. [supra] ought to be abandoned.

At the present instance, there is an additional factor and that is that examinations for discovery were completed in 1988. I am therefore not prepared to find that the passage of time, without some actual prejudice, raises a presumption of prejudice.

While the Defendant has not been prejudiced, she has certainly been inconvenienced, for the Defendant has not only tried, on a fairly regular basis over the years, to have the Plaintiff move the matter along, but also was finally forced to bring on the present motion after all the Plaintiffs requests for a little more time came to nothing. Thus it is appropriate that the Defendant have the costs of the motion, forthwith, at $400.00.

To ensure that the matter now proceeds without further undue delay, the Plaintiff shall file an application for trial within the next twenty-one days.

Order:

1. The Plaintiff shall file his application for trial within twenty-one days; and

2. The Defendant’s motion is dismissed, provided that the Plaintiff shall pay costs to the Defendant, forthwith, in the amount of $400.

Motion dismissed.