Ferrostaal Metals Ltd. v. The “Herakles” et al.

This was an appeal from an order made by the Prothonotary and affirmed by the Motions Judge dismissing the action for delay. The facts were that the Statement of Claim was filed on December 12, 1995 but was not served until a year later. The Plaintiff further delayed in waiting almost one year to file a Reply to a Statement of Defence. With the introduction of the Case Management Rules, an order was made on March 16, 1999 requiring the parties to file Affidavits of Documents by May 10, 1999. The Plaintiff failed to file its Affidavit of Documents by May 10, 1999 and made application on January 25, 2000 for an additional 30 days to complete this step. At first instance, the Prothonotary declined the extension of time and struck the claim for delay. In doing so the Prothonotary noted that unjustified non-compliance with a court order is a serious matter which is even more so when the order is made pursuant to a Notice of Status Review. The Prothonotary further noted that prejudice to a party is not a factor to be taken into account in such applications. On appeal, the Motions Judge agreed with the reasons given by the Prothonotary. The Motions Judge dealt with an additional submission not made before the Prothonotary, i.e. that the delay was due to the fault of counsel and not the fault of the party. However, the Motions Judge found that the Plaintiff was itself partly responsible for the delay. On further appeal, the Federal Court of Appeal held the Motions Judge had considered the relevant principles and committed no error of law.