Taylor B. Robertson

The appellants appealed an order dismissing their action for delay under Rule 48.14.

The action had been struck from the trial list because the appellants were not ready for trial, and they failed to restore it within 180 days.

The Court of Appeal upheld the status hearing judge's decision, finding no error in considering the entire history of the delay rather than just the 180-day period, and concluding that the judge's finding of no reasonable explanation for the delay was supported by the evidence.

Following dismissal of the plaintiffs’ action after a status hearing, the successful defendants sought costs.

The court determined that partial indemnity costs were appropriate because there were no offers to settle affecting the scale of costs.

The litigation involved a relatively simple breach of contract and negligence claim concerning alleged defects in a house purchased by the plaintiffs, with limited procedural activity over several years before dismissal.

The court also held that additional disbursements arising from a defendant’s decision to retain out‑of‑town counsel should not be borne by the unsuccessful plaintiffs.

Each successful defendant was awarded a fixed all‑inclusive costs amount.

At a status hearing under Rule 48.14 of the Rules of Civil Procedure, the plaintiffs were required to show cause why their action should not be dismissed for delay after it was struck from the trial list and not restored within 180 days.

The court applied the two-part test requiring a reasonable explanation for delay and proof that the defendants would not suffer non-compensable prejudice.

Although the court found little evidence of actual prejudice given earlier discovery evidence and expert reports, the plaintiffs failed to provide any reasonable explanation for prolonged inactivity in prosecuting the action.

Significant unexplained delays occurred both before and after the action was struck from the trial list.

The court concluded that the plaintiffs failed to satisfy their onus and dismissed the action for delay.