Canada v. Cragg & Cragg Design Group Ltd.
T-2942-94
Hargrave P.
22/7/98
16 pp.
Defendant seeking dismissal of action (appeal from decision of Canadian International Trade Tribunal (CITT) setting aside MNR's assessment) either by reason of delay or for want of prosecution-Motion allowed-Given all of circumstances, plaintiff responsible for inordinate and inexcusable delay, together with business prejudice-Furthermore, plaintiff, being completely wrong on assumptions (that burden of proof lying with defendant and that defendant in position of plaintiff, with obligation to move action along), Court can only conclude plaintiff had no real desire or intention to proceed with action-Defendant developed parcel of land into integrated building residential community called Illahee-Illahee integrated linear development, rather than massive high-rise, however strata-titled in same manner as condominium development-Economics depending to substantial extent, on federal sales tax rebate, either 50% or 75% of tax, depending upon state of completion of project on January 1, 1991-After inquiry of Revenue Canada, defendant understood would receive 75% rebate ($427,237.50) if completed 50% of whole project-By January 1, 1991, defendant had completed 55% of cost of project and applied for rebate-Revenue Canada granted rebate only for separate portions of development completed-In other words, defendant would have to have completed 50% of each building making up whole of development rather than 50% of whole project-In May 1991, defendant filed notice of objection, denied 22 months later-Appeal to CITT in October 1993 allowed-Crown filed appeal just before limit, in December 1994-No basis to argument, based on fact present proceeding appeal by way of trial de novo from decision of CITT, taxpayer in position of plaintiff-While taxpayer must present evidence at earlier stage, that does not make taxpayer into plaintiff any more than reverse onus of proof, or shifting onus of proof, reverses designation of who is plaintiff and who is defendant or roles each must play in getting action ready for trial-Old R. 440, applicable herein, provided for dismissal for want of prosecution-To succeed, defendant must show inordinate delay and likelihood of serious prejudice-For plaintiff to show acceptable excuse-Test set out in Allen v. Sir Alfred McAlpine, [1968] 2 Q.B. 229 (C.A.) and Birkett v. James, [1978] A.C. 297 (H.L.)-Present case not complex-Ought to have been pressed on to trial well before now-In present case, defendant has been damaged financially and its ability to do business has been seriously hampered by uncertainty resulting form plaintiff's delay-Action ought not only to be dismissed for want of prosecution, but also for delay and lack of intention to proceed, within principles first set out by House of Lords in Grovit v. Doctor, [1997] 1 W.L.R. 640-Federal Court may well apply 1998 Rules so as to recognize that wholesale disregard of Rules and time limits in Rules will be regarded as abuse of process with delay, as in present case, being separate ground by which to dismiss action, without need to show either prejudice or that fair trial no longer possible-When pure delay involved, perhaps only additional consideration ought to be whether fair to dismiss action in question-Court may well also consider fairness to other litigants who wish share of Court's time, to Court, which must endeavour to administer justice properly with finite resources and to taxpayer who must foot bill for unnecessary delay-Federal Court Rules, C.R.C., c. 663, R. 440-Federal Court Rules, 1998, SOR/98-106.