Mahoney,
J.:—This
is
an
appeal
from
the
refusal
of
the
Trial
Division
to
dismiss
the
respondents'
action
for
want
of
prosecution
and
failure
to
provide
full
examination
for
discovery
and
to
comply
with
an
earlier
order
of
the
Court
as
to
discovery.
The
action
seeks
damages
for
malicious
prosecution
and
negligence
in
the
performance
of
a
statutory
duty
arising
out
of
reassessments
of
the
respondents'
1968
and
1969
income
tax
returns,
which
were
successfully
appealed
to
the
Tax
Review
Board.
The
action
was
commenced
October
6,
1977,
a
defence
filed
and
discovery
proceeded.
On
consent,
an
order
was
made
December
17,
1984,
which
permitted
an
amended
defence
pleading
the
Crown
Liability
Act
to
be
filed
and
also
required
the
fulfilment
of
undertakings
made
by
the
respondent
on
discovery.
With
agreed
extensions,
that
was
to
be
done
before
the
end
of
April
1985.
The
respondent
appears
to
have
become
dissatisfied
with
the
manner
his
counsel
was
representing
him
early
in
1984
but
did
not
retain
his
present
counsel
until
May
1986,
and
did
not
identify
that
counsel
to
the
appellant
until
after
the
present
motion
was
filed
July
10,
1986.
The
learned
trial
judge
found
that
the
appellant
“has
established
a
good
case
for
having
this
action
dismissed
under
one
or
all
of
[Rules
440,
460
and
465]".
In
the
case
of
Rules
460
and
465,
an
action
can
be
dismissed
only
if
the
Court
is
satisfied
that
the
failure
to
provide
full
discovery
or
to
comply
with
the
Court's
order
is
without
reasonable
cause
or
excuse.
The
learned
trial
judge
expressly
found
that
the
appellant
had
been
prejudiced
in
this
defence
by
the
delay.
There
was
ample
evidence
supporting
both
findings.
He
nevertheless
declined
to
dismiss
the
action
for
two
reasons:
First,
most
of
the
prejudice
to
the
defence
which
has
resulted
from
the
delay
relates
to
the
issue
of
damages
.
.
.
The
second
reason
.
.
.
is
that
the
plaintiffs
have
recently
retained
new
counsel.
.
.
.
There
is
therefore
reason
to
accept
the
theory
that
previous
delays
were
due
to
the
difficulties
the
plaintiffs
had
with
their
former
counsel.
As
to
the
first
reason,
the
view
that
the
recognized
prejudice
to
the
appellant
could
somehow
be
satisfactorily
mitigated
by
trying
the
issue
of
liability
separately
from
the
quantum
of
damages
appears
lacking
in
substance.
The
appellant
is
as
entitled
to
a
fair
trial
on
damages
as
on
liability.
As
to
the
second
reason,
no
doubt
problems
between
a
party
and
his
lawyer
can
account
for
delays
in
the
conduct
of
an
action
however
a
party
cannot
dissociate
himself
from
the
actions,
or
the
inaction,
of
his
chosen
counsel.
The
party
may
have
a
remedy
against
his
counsel
but
he
cannot
invoke
that
fault
to
the
detriment
of
an
opposing
party,
vid.
Birkett
v.
Jones,
[1978]
A.C.
297
at
324,
where
Lord
Diplock
said:
Where
an
action
is
dismissed
for
want
of
prosecution
the
fault
must
lie
either
with
the
plaintiff
or
with
his
solicitors
or
with
both.
Which
of
them
is
to
blame
for
the
inordinate
and
inexcusable
delay
does
not
affect
the
prejudice
caused
to
the
defendant,
which
is
the
justification
for
the
dismissal
of
the
action;
nor
should
it,
in
principle,
affect
his
remedy.
The
order
of
the
Trial
Division
is
discretionary.
The
principles
to
be
applied
by
this
Court
have
been
accepted
as
those
stated
by
Lore
Diplock
in
Birkett
v.
Jones,
at
317.
.
.
an
appellate
court
ought
not
to
substitute
its
own
"discretion"
for
that
of
the
judge
merely
because
its
members
would
themselves
have
regarded
the
balance
as
tipped
against
the
way
in
which
he
had
decided
the
matter.
They
should
regard
their
function
as
primarily
a
reviewing
function
and
should
reverse
his
decision
only
in
cases
either
.
.
.
where
they
are
satisfied
that
the
judge
has
erred
in
principle
by
giving
weight
to
something
which
he
ought
not
to
have
taken
into
acocunt
or
by
failing
to
give
weight
to
something
which
he
ought
to
take
into
account;
We
are
all
of
the
view
that,
having
found
that
the
delay
had
been
unreasonable
and
that
the
appellant
had
been
thereby
prejudiced
in
its
defence,
the
learned
trial
judge
erred
in
principle
by
taking
into
account
either
the
change
of
solicitors
or
the
possiblity
of
a
reference
as
to
damages
if
liability
were
found.
This
appeal
will
be
allowed
with
costs.
Pursuant
to
subparagraph
52(b)(i)
of
the
Federal
Court
Act,
we
will
make
the
order
the
Trial
Division
should
have
made,
allow
the
appellant's
(defendant's)
application
and
dismiss
the
action
with
costs.
Action
dismissed.
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