Genious Maritime Inc. v. Federal Atlantic ( The )
T-1815-86
Wetston J.
29/8/94
6 pp.
Motion to dismiss action for want of prosecution -- Statement of claim in breach of towage contract filed July 30, 1986 -- Defences filed September 26, October 2, 1986 -- List of documents filed November 26, 1990 and delivered to defendants' solicitor April 15, 1991 along with request to proceed with discoveries -- Man purportedly responsible for authorizing tow, Mr. William Petticrew, died October 20, 1991 -- On December 9, 1991 defendants requesting plaintiffs to provide security for costs -- Solicitors for parties meeting informally April 14, 1992 -- No further communication from plaintiffs' solicitor until March 1993 -- On April 7, 1993 defendants' solicitor reaffirming requirement for payment of security for costs -- In September 1993 plaintiffs instructing solicitor to agree to amount requested -- By letter dated November 1, 1993 plaintiffs' solicitor informing defendants awaiting balance of security to be posted -- On February 25, 1994 defendants again advising plaintiffs by letter full amount of security required before defendants would proceed -- On March 3, 1994 defendants advising plaintiffs of intention to apply to have action dismissed for want of prosecution -- On March 7 plaintiffs filing notice of intention to proceed and paying necessary sum into Court representing security for costs -- On April 7, 1994 defendants filing notice of motion and supporting affidavit for order to dismiss action -- Federal Court R. 440 permitting application for dismissal for want of prosecution if no notice of trial within three months after close of pleadings and applicant of view plaintiff not prosecuting with due dispatch -- Motion granted -- Test set out in Allen v. McAlpine (Sir Alfred) & Sons, Ltd., [1968] 1 All E.R. 543 (C.A.): (1) delay must be inordinate; (2) delay must be inexcusable; (3) defendants must be seriously prejudiced by delay -- Discretion should not be exercised unless delay giving rise to substantial risk fair trial not possible -- As delays inordinate, not excusable resolution depending upon whether defendants' right to fair trial prejudiced -- Loss of testimony of important witnesses sufficient grounds for dismissal of action: Kanematsu-Gosho (Canada) Ltd. v. Midas Navigation Corp., [1984] 1 F.C. 1204 (D) -- Mr. Petticrew had important evidence to give, evidence which could have been obtained before his death had plaintiffs not delayed so long -- Loss of his evidence seriously prejudicing defendants -- Although existence of documentary evidence relating to testimony of absent witness considered sufficient in certain circumstances to lessen prejudice caused to defendant, each case must be judged on own facts -- Serious questions herein as to content of conversations, motives, assumptions underlying actions -- Plaintiffs' original delay affecting fairness of trial -- Waterside Cargo Co-Operative v. National Harbours Board (1986), 3 F.T.R. 189 (F.C.T.D.) applicable -- Plaintiff doing itself injustice, by its solicitor, in letting essential time run against itself and against defendant -- Equitable rule "Equity aids vigilant" -- Plaintiff sleeping on rights -- Federal Court Rules, C.R.C., c. 663, R. 440.