Ruggles v. Fording Coal Ltd.
T-1948-95
Gibson J.
18/8/98
6 pp.
Motion under Federal Court Rules, 1998, r. 167 for order dismissing action on ground undue delay in prosecuting action-R. 167 permitting Court to dismiss proceeding, impose other sanctions on ground undue delay in prosecuting proceeding-Statement of claim filed, served September 1995-Statement of defence, counterclaim served November 1995-No further steps taken until July 1997 when defendant receiving notice of intention to proceed-Affidavit of documents filed in January 1998, served in March 1998-Under former R. 440, such application based on "want of prosecution"-Classic test for "want of prosecution" including inordinate, inexcusable delay seriously prejudicing defendants-Motion dismissed-By adopting terminology of "undue delay", r. 167 reflecting classic test-"Undue delay" not unlike "inordinate delay", but at same time implying through term "undue" concept of inexcusable delay resulting in serious prejudice-When classic test applied herein, "undue delay" not established-No evidence defendants seriously prejudiced by delay-Applying approach reflected in Hagwilget Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al. (1996), 115 F.T.R. 268 (F.C.T.D.), balancing of interests not warranting dismissal of action-R. 167 authorizing imposition of other sanctions on ground of undue delay-While requiring plaintiff to move under r. 384 to have action managed as specially managed proceeding not another sanction, appropriate to impose as condition of dismissal of motion-Federal Court Rules, 1998, SOR/98-106, rr. 167, 384-Federal Court Rules, C.R.C., c. 663, R. 440.