Date: 20000721
Docket: T-1348-92
OTTAWA, Ontario, Friday the 21st day of July, 2000
PRESENT: THE HONOURABLE MADAME JUSTICE B. REED
BETWEEN:
MORI NURSERIES
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
REED, J.:
[1] A status review has been conducted pursuant to a Notice of Status Review, dated June 16, 2000, asking the plaintiff to show cause why this action should not be dismissed for delay.
[2] The statement of claim in this action was filed on June 9, 1992.
[3] An earlier Notice of Status Review had been issued on July 30, 1998, requiring the plaintiff to show cause, at that time, why the action should not be dismissed for delay. The plaintiff responded that "the action is nearing trial readiness", and a schedule should be adopted pursuant to which a pre-trail conference requisition would be filed within 120 days of a Court order to proceed. The plaintiff's submissions stated that there remained two outstanding pre-trial steps: obtain the report of its expert, which it anticipated would be available in 90 days; obtain answers to undertakings and questions taken under advisement from the defendant.
[4] An order dated September 29, 1998, issued allowing the claim to continue as a specially managed proceedings. It also ordered that any motion with respect to the outstanding undertakings and questions taken under advisement be brought before November 1, 1998.
[5] Notices of motion to compel answers to discovery questions and produce documents were filed by the plaintiff and the defendant, on October 27 and October 30, 1998, respectively. The parties then sought and obtained orders from the Court, on consent, adjourning these motions sine die, to be brought on 5 days notice, if the parties were unable to settle the matters between them.
[6] On November 13, 1998, I was designated case management judge.
[7] On November 16, 1998, I sought a report from counsel as to the status of the proceedings. Both counsel indicated that they were actively working to obtain outstanding answers to the unanswered discovery questions.
[8] On October 22, 1999, the Registry was asked to contact counsel for an update on the status of the proceeding. Plaintiff"s counsel indicated that she was waiting for their expert"s report, which was expected shortly, and that there were still some outstanding undertakings which the plaintiff had not fulfilled as it was not sure they were still being requested by the defendant.
[9] On February 10, 1999, the Registry was again asked to obtain an update from counsel. A similar answer was obtained from plaintiff's counsel, as had been given earlier: the plaintiff was awaiting its expert report, which was expected shortly, and there were still some questions that the plaintiff had not answered because it was unclear whether the plaintiff was still asking that they be answered.
[10] On May 10, 1999, the Registry again contacted both counsel for an update. The plaintiff"s counsel gave the same answer that had been given before, but told the Registry that a request for a pre-trial conference would be filed within the next couple of weeks.
[11] On June 23, 1999, the Registry again contacted both counsel for a status update, and was advised the defendant"s counsel intended to bring a motion to amend the pleadings, and therefore, no request for a pre-trial conference had been filed.
[12] The defendant filed a 369 motion on September 10, 1999, for an order amending the statement of defence. (The delay in filing from the end of June to the beginning of September was in part the result of misinformation that had been given to counsel as to the Court's availability.)
[13] On September 29, 1999, the defendant was given permission to amend her statement of defence, as well as leave to conduct further discoveries if these were necessary. An order with respect to the defendant's request that the plaintiff give answers with respect to undertakings was reserved.
[14] On October 8, 1999, an amended statement of defence was filed. Between that date and June 16, 2000 no action was taken by the parties. Thus on June 16, 2000, an order was issued requiring the Plaintiff to show cause, by July 12, 2000, as to why this claim should not be dismissed for delay.
[15] The plaintiff's response was that the defendant had not pursued any further examinations for discovery, nor had the defendant filed a summary judgment motion as it had indicated it intended to do. The plaintiff again advised the Court that the plaintiff's expert"s report was nearly complete. Counsel estimated that the report would be ready for delivery within 60 days.
[16] There has been extensive, unexplained delay. I am not satisfied that the proceeding should continue.
ORDER
THIS COURT THEREFORE ORDERS, pursuant to Rule 382, that the action is dismissed.
Judge
OTTAWA, ONTARIO
July 21, 2000