P. Mitchell

The plaintiff brought a motion for a status hearing to show cause why its action, arising from condominium construction defects, should not be dismissed for delay under Rule 48.14.

The court found the plaintiff failed to provide an acceptable explanation for over three years of delay and failed to rebut the presumption of prejudice, as it did not provide evidence that all relevant documents and key engineering and contracting witnesses were available.

The action was dismissed for delay.

Multiple motions arose from a long-running property drainage dispute following earlier orders requiring implementation of a drainage design.

The defendant initially brought a motion to set aside or vary prior orders but abandoned it at the hearing, while the plaintiffs sought dismissal of that motion, payment out of funds held in court to implement engineering work, and restrictions on further motions by the defendant.

The court confirmed that its role was limited to implementing the previously ordered design or a variation agreed upon by the parties and ordered that the drainage work proceed under the agreed Pearson design.

Funds already paid into court were ordered paid out to the plaintiffs for construction costs, and the defendant was directed to pay an additional amount into court subject to documentation of implementation expenses.

The court also required the defendant to obtain leave before bringing any further motions.