Fortune Fisheries Ltd. v. Canada
T-9198-82
Tremblay-Lamer J.
26/10/93
5 pp.
Application to dismiss action for damage to underwater saltwater line supplying water necessary for operation of plaintiff's fish processing plant for want of prosecution -- Action commenced December 1, 1982 -- Statement of defence filed February 25, 1983 -- Solicitors exchanging many letters and telephone calls since 1984 to schedule examination for discovery of plaintiff's witnesses -- Plaintiff filing and serving on defendant notice of intention to proceed toward end of 1992 -- On April 12, 1993 delivered affidavit of documents and copies of financial documents -- On May 26 sent letter inquiring when defendant wished to proceed with discovery -- R. 440(2) requiring applicant to serve notice in writing of intention to apply for dismissal on plaintiff unless plaintiff takes necessary steps to bring action on for trial at least two weeks before service of notice of motion -- No record of service of such notice on plaintiff -- Application dismissed -- R. 440(2) to discourage final disposition of cases on ground of default in procedure and to ensure no party taking advantage of procedural lapse of another -- Since plaintiff preparing and delivering affidavit of documents, many letters sent to defendant demonstrating intention to prosecute action as rapidly as possible -- Defendant not indicating any willingness to proceed with discovery -- Its conduct consequently precluding plaintiff from applying for order fixing trial date -- Now up to defendant to set date for discovery -- Although may have been appropriate at some point for defendant to seek to apply R. 440, did not do so but waited to file this motion after affidavit of documents received and plaintiff showing willingness to proceed as quickly as possible -- Procedural motion should not be used to make final determination of any dispute so long as some indication plaintiff genuinely wishes to have issues resolved at trial: Parfums Nina Ricci et al. v. Modes Ricci International Ltée/Ricci Fashion International Ltd. (1984), 1 C.P.R. (3d) 142 (F.C.T.D.) -- Federal Court Rules, C.R.C., c. 663, RR. 440, 485.