PRACTICE |
Dismissal of Proceedings |
Undue delay |
Bell v. Bell Estate
T-1628-96
Lafrenière P.
7/4/00
13 pp.
Motion for dismissal of action for want of prosecution under r. 167--Defendants alleging inordinate delay on part of plaintiff in prosecuting action--Proceeding, instituted in 1996, subject to status review under r. 380--Late Harriet Bell died intestate in April 1988--Survived by six of seven children, including plaintiff, Edward Bell--Two principal assets of estate consisting of parcel of land located on reserve (Lot 226), campground business located on property--Plaintiff filing statement of claim in July 1996, claiming to be sole heir of estate entitled to use, possession of Lot 226, neither business nor assets of business part of estate--No indication of further procedural steps taken by plaintiff to move proceeding forward after July 26, 1996--On March 4, 1999, notice of status review issued by Court requiring plaintiff to show cause by April 6, 1999 why action should not be dismissed for delay--On June 21, 1999, Associate Senior Prothonotary allowed proceeding to continue--In considering motion for delay, following test must be applied: whether inordinate delay, whether delay inexcusable, whether defendant likely to be seriously prejudiced by delay--Same test should not be applied to proceedings which have survived status review--In determining whether to allow matter to continue on status review, Court not only takes into account explanation of defaulting party for delay, but also proposal for moving proceeding along--Party's written representations therefore given significant weight by Court in disposing of status review--If in response to status review party states unequivocally that specific step will be taken within certain time and Court subsequently orders proposed step be taken, party should comply, except for circumstances beyond control of counsel, party--Otherwise, Court's ability to supervise, manage proceeding will be thwarted--Plaintiff has on numerous occasions disregarded deadlines imposed by Court--Pattern of non-compliance resulting in substantial delay in moving proceeding forward--Lackadaisical attitude of plaintiff should be strongly censured by Court--Plaintiff should not be permitted to continue with action--Defendants' motion to dismiss for delay granted--Federal Court Rules, 1998, SOR/98-106, rr. 167, 380.