Legalviews Personal

In recent years, the drop-dead Rule 4.33 has not changed much. (Just some modification of the deadline period.)

But before that, the earlier changes were dramatic, and all for a reason. One cannot interpret Rules 4.31 and 4.33 without knowing that history, as the Court of Appeal has more than once stated.

Rule 4.31 and its predecessors about undue delay have been around for a long time. For many years, chambers judges almost succeeded in destroying that Rule’s predecessor. A great many facts would be treated as a special circumstance to forgive long delay. And for about almost years, no judge ever used the Rule to dismiss a suit. Even where delays extending 18 years or so were proven.

Finally, that refusal to act was cured four ways. By amending the Rule, and by the Court of Appeal enforcing it. First, facts had to be extraordinary to constitute an exception. Second, inordinate and inexcusable delay must be taken as producing significant delay, unless the plaintiff proves that it did not. Third, the Rule allows an order to speed up the suit.

More important was the 4th cure. In 1994 the predecessor to R. 4.33, the drop-dead Rule, was enacted. It says that the court must grant an application to dismiss the action, if there has been no significant advance in the action in any preceding three-year period.

Though the current Limitations Act is newer than that, it gives a parallel to Rr. 4.31 and 4.33. There is one promptness duty which runs from neglecting obvious duties (R. 4.31). And a second time limit running simply from an event, with no talk of neglect or poor quality performance (R. 4.33). Rule 4.31 is about how much diligence the plaintiff should have shown, throughout the whole suit, not just one period. Rule 4.33 is simply about what happened in a certain three years, not why.

Rule 4.33 plainly shows that it is mandatory and binding on all courts. The Court of Appeal has repeatedly confirmed that that is so. (The only two exceptions that the Rule states are very narrow.) And the Court of Appeal holds that if the action is not dismissed, a procedural order must be made.

Occasionally one finds a chambers decision trying to dodge R. 4.33 by discussing the explanation from, or degree of, blame attributable to, the plaintiff. The history, structure, and wording of the Rules show how misguided and unfounded is such an approach.

– Hon. J.E. Côté

HISTORY OF THE DROP-DEAD RULE