Friedrich v. Canada
T-729-88
Reed J.
5/2/98
7 pp.
Motion to set aside judgment dismissing plaintiff's action-Plaintiffs served with notice on March 8, 1996 advising that since there had been no activity on file since October 1990, Court would dismiss action unless motion for directions filed within 60 days-No such motion made-Plaintiff's then solicitor filing affidavit blaming receptionist for misfiling notice because never brought to his attention-Federal Court Rules, R. 330(b) permitting Court to rescind order made in absence of party who failed to appear by reason of insufficient notice of application-Appropriate to consider defendant's submissions that would have been made had plaintiff filed motion for directions as requested in Court's notice-Plaintiff claiming damages resulting from improper, malicious issuance of assessment, reassessment, conduct of officials of Department of National Revenue relating to 1977 tax assessments-Action adjourned on consent sine die in 1988-Defendant's documents pertaining to relevant tax assessments, collection efforts eventually destroyed-Collection officers named in statement of claim long since retired-1994 letter advising plaintiff of continued existence of action, viability of proceeding therewith not sufficient to demonstrate continuing serious intention to pursue litigation-Mandal v. 575419 Ontario Ltd. (1994), 23 C.P.C. (3d) 172 (Ont. Gen. Div.) holding while court should not penalize client for fault of solicitor, plaintiffs should produce evidence showing they, themselves actively demonstrating strong interest in prosecution of action-Mirroring tests applied under R. 440 (dismissal for want of prosecution): (1) inordinate delay; (2) inexcusable delay; (3) defendant likely to be seriously prejudiced by delay-Delay herein inordinate-No reasonable explanation given-Passage of time resulting in prejudice to defendant with respect to ability to properly defend action-Motion to set aside decision dismissed-Federal Court Rules, C.R.C., c. 663, RR. 330(b) (as am. by SOR/79-58, s. 1), 440.