Dyker v. Canada
T-6119-79
Rothstein J.
5/3/93
18 pp.
Application for dismissal for want of prosecution -- Plaintiff leasing lands from defendant for agricultural purposes -- Land said to be unfit for agriculture due to pre-existing weed problem known to defendant -- Plaintiff claiming damages for loss of crop income during years 1975, 1976 and 1977 and for loss of income for remainder of lease term -- Statement of claim filed in Federal Court on December 13, 1979 -- Defendant claiming recovery of $11,805.75 of outstanding lease payments from plaintiff -- Defendant's counsel writing to plaintiff's counsel on June 8, 1992 to indicate appropriateness of motion for dismissal for want of prosecution -- Notice of motion for dismissal filed on October 26, 1992-Plaintiff making preliminary objection June 8, 1992 letter not notice contemplated by R. 440(2) -- Letter having effect intended by Rule: plaintiff's counsel promptly proposed to discuss how matter could be proceeded with -- Preliminary objection relative to compliance with R. 440(2) dismissed -- Principles applicable to motion for dismissal for want of prosecution set out in Allen v. Sir Alfred McAlpine & Sons Ltd., [1968] 2 Q.B. 229 (C.A.) -- Whether delay inordinate, inexcusable, defendants likely to be seriously prejudiced by delay -- Delay inordinate herein -- Some of delay explained, some not -- No reasons given for delay of three years to retain expert -- Nothing done by defendant's counsel from November 1984 to December 1987 to insist plaintiff proceed or motion for dismissal would be presented -- No evidence of plaintiff loosing interest in case -- Part of delay explained -- Part unexplained not causing defendant to move for dismissal -- Serious prejudice to defendant important consideration in application for dismissal -- Onus on defendant to establish serious prejudice -- No direct evidence witnesses not available and not able to revive memories after reviewing relevant documents and discussing matter with counsel -- No serious prejudice to defendant arising from delay -- Case to be decided on merits -- Application dismissed on terms -- Federal Court Rules, C.R.C., c. 663, R. 440(2).