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In so doing, the buhr and the ali decision have established the legal framework surrounding the new dismissal for delay rules in manitoba These rules have both been the subject of recent commentary by the manitoba court of appeal. We intend to provide a brief review of those decisions over the course of a two part series.
In buhr, this court confirmed that there is no judicial discretion other than to dismiss the claim for delay if the requirements of rule 24.02 are established In addition, a new dismissal for 'long delay' rule was created pursuant to rule 24.02 whereby an action must be dismissed if three or more years have passed without a significant advance in the action The purpose of this rule is to “weed out inactive cases” and to discourage complacency in civil litigation (buhr at para 33).
In tsitso, the action was dismissed for long delay at first instance before a master of the court of king’s bench
There was effectively no dispute that three years had passed without a. Rule 24 allows a party served with a statement of claim in an action to ask the court to dismiss the action without a determination of the merits, if the plaintiff has not taken steps to move the proceeding toward trial for a very long time. On appeal, justice burnett explained there are two issues to be addressed on a motion to dismiss for delay pursuant to the revised rule 24.01 First, whether or not there had been delay in the action
And second, whether or not the delay had resulted in significant prejudice. Under rule 48.14(13), the plaintiff has the burden of showing why the action should not be dismissed The plaintiff must explain any periods of delay The plaintiff must demonstrate that the defendant will suffer no prejudice if the action is allowed to proceed.
Beyond the obvious reminder to all counsel to check up on files that they may have left on the back burner while juggling a busy practice, this decision contains some very interesting commentary on the tests applied, and the differences in the types of motion to dismiss for delay.
The latest amendment to manitoba’s queen’s bench rules, effective january 1, 2018, addresses that head on. Motion for dismissal for delay (rule 24) a defendant who is not in default under the rules of civil procedure may, in certain circumstances, move to have an action dismissed for delay where the plaintiff has failed to diligently prosecute the action.
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