R & W Such Holdings Ltd. v. Canada
T-2386-83
Hargrave P.
4/8/95
7 pp.
Statement of claim for want of prosecution-Action concerning income tax reassessments for 1977 to 1980 commenced in 1983-As to request for oral hearing, no substantial reason why present application cannot be dealt with by means of written representations, supporting affidavit material-Litigation not progressing due to management of plaintiff by Wolfgang Such, who ran company as proprietorship with little regard to requirements of governments, rights of non-voting shareholders, good of company-Receiver/manager appointed by court in 1992-Present President instructing new lawyers to set matter down for trial-Application of test set out in Allen v. Sir Alfred McAlpine & Sons Ltd., [1968] 2 Q.B. 229 (C.A.) for striking statement of claim by reason of want of prosecution-(1) Delay clearly inordinate-(2) Mismanagement credible excuse for delay-(3) Crown's affidavit evidence not pointing to specific prejudice defendant would suffer-Examinations for discovery having taken place, fading of witnesses' memories may not be factor-Plaintiff should not be prevented from having day in Court-Family members now in control of company, who stand to benefit directly from these proceedings, not directly responsible for inordinate delay, ought not be deprived of opportunity to prove case-Motion dismissed-Defendant to have costs of motion, set at $500-Federal Court Rules, C.R.C., c. 663, R. 324.