Wilson v. Parker
T-1120-88
Hargrave P.
26/7/96
13 pp.
In 1984 family of defendant Parker subdividing, developing land-Plaintiff initiating action claiming all or part of 160 lots on her property in 1988 based on 1920, 1935 fence lines, transfer under Indian Act in 1960-Claiming Crown negligent for failing to correct 1959 survey, allegedly in error, and for registering incorrect plan-Last examination for discovery in January 1990; notice of intention to proceed filed in 1996-Action dismissed for want of prosecution-Application of test for dismissal for want of prosecution in Allen v. McAlpine (Sir Alfred) & Sons, Ltd., [1968] 1 All E.R. 543 (C.A.)-(1) Whole of delay, i.e. eight years, relevant to determination of whether delay inordinate-Defendants ought not, in relatively straightforward case, be left in state of uncertainty for years and subjected to direct, indirect costs, stresses of litigation prolonged by poor management by less than vigilant plaintiff-Ongoing litigation directly hampering third parties wishing to sell or finance, thus indirectly hampering Parker-Cannot now be returned to position would have occupied had plaintiff proceeded with action with reasonable diligence-Given dynamic nature of substantial commercial project, in which individual property holders also suffering from inability to sell, finance, and eight years' passage of time, past six years leading up to motion to dismiss without steps in proceedings until 1996 inordinate delay-(2) Other than counsel from 1988 through examinations for discovery in 1991, none of counsel taking any steps in proceedings until 1996 notice of intention to proceed filed-None of intervening lawyers even filed notice of change of solicitor-No reasonable excuses given in plaintiff's affidavit to explain complete absence of any steps in proceeding-Nothing indicating defendants in any way actively delayed or misled plaintiff-No obligation on defendant to press matter along to trial-(3) Parker, now 94, able to give cogent evidence had case proceeded to trial in reasonably expeditious manner, but now unable to do so-Delay depriving counsel of having client in courtroom to consult-Important in action involving, in addition to documentation, recollection of those who lived on land, knew purposes, reasons behind various fence lines, property transactions-Contrary to plaintiff's submission, case not document driven-Role of oral evidence not so insignificant that loss of Parker's ability to give oral evidence, loss of witnesses, and lost memories of those who remain not likely to seriously prejudice Parker, Crown-Society, which pays for judicial system, and courts, which must administer system, provide services at reasonable cost, today not viewing favourably litigation needlessly prolonged at uncalled-for expense-While must be balance between allowing plaintiff day in court and giving certainty to defendants by applying rules of procedure to bring litigation to end within reasonable time, length of time making delay inordinate increasingly shorter-Counsel, clients must realize real possibility any delay beyond norm might be inordinate-Federal Court Rules, C.R.C., c. 663, R. 440.