Ahmad v. Canada
T-2772-91
Hargrove P.
22/11/94
6 pp.
Motion for striking out plaintiff's action appealing Tax Court ruling regarding assessment pursuant to land transaction -- Land transaction dating back 15 years involving plaintiff and eight joint venturers -- Plaintiff failing to provide affidavit of documents despite requests over two and a half years -- Test for dismissal for want of prosecution threefold: (1) inordinate delay; (2) delay inexcusable; (3) defendant's likely prejudiced by delay -- Finding of inordinate delay based on either cumulative delays or merely delays associated with present proceedings -- Negotiation of settlement not valid excuse for delay as nothing preventing plaintiff from both pursuing present action at reasonable pace and trying to negotiate settlement -- Defendant bearing onus to show likely serious prejudice -- Delay sufficient to raise presumption of prejudice (The Queen v. Aqua-Gem Investment Ltd. (1993), 93 DCT 5080 (F.C.A.)); plaintiff not rebutting presumption -- Possibility of dismissing action where Court finding intentional and contumelious default-Manner in which plaintiff conducting appeal having all earmarks of delaying tactic either to gain time for political solution or to delay final collection of tax owing -- Alternatively, as plaintiff using Court process not to appeal Tax Court ruling but rather to thwart collection, action abuse of process and dismissed on ground action falling within definition of intentional and contumelious default.