Jacobson Estate v. Freed et al., (1994) 97 Man.R.(2d) 197 (CA)

• Judge: Huband, Philp and Twaddle, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: October 18, 1994
• Jurisdiction: Manitoba
• Citations: (1994), 97 Man.R.(2d) 197 (CA)

Jacobson Estate v. Freed (1994), 97 Man.R.(2d) 197 (CA);

    79 W.A.C. 197

MLB headnote and full text

Gertrude Matas, as administratrix of the Estate of Sarah Jacobson, late of the City of Winnipeg, in the Province of Manitoba, deceased (plaintiff/respondent) v. Max Freed, Marshall Freed, David Korn, Northguard Acceptance Corporation Ltd., and Guardian Finance of Canada Ltd. (defendants/appellants)

(Suit No. AI 94-30-01804)

Indexed As: Jacobson Estate v. Freed et al.

Manitoba Court of Appeal

Huband, Philp and Twaddle, JJ.A.

October 18, 1994.

Summary:

The defendants applied to strike the plain­tiff's statement of claim for want of prosecu­tion. A Master struck the statement of claim on the basis of inherent prejudice. No speci­fic prejudice had been asserted. The plaintiff appealed.

The Manitoba Court of Queen's Bench allowed the appeal and restored the action, where a fair trial was still possible notwith­standing the unreasonable delay. The de­fendants appealed.

The Manitoba Court of Appeal dismissed the appeal. The decision was a discretionary one and the court would not interfere where it was not clearly wrong.

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - An estate commenced an action in December 1985 - Examinations for discovery took place in 1987 and 1988 - In May 1990, the defendants provided answers to under­takings at discovery - No further steps were taken until the defendants applied in March 1993 to dismiss the action for want of prosecution - A Master struck the statement of claim for inherent prejudice (specific prejudice was not asserted) - The trial judge restored the action, because a fair trial was still possible notwithstanding the unreasonable delay - The Manitoba Court of Appeal declined to interfere with the trial judge's exercise of his discretion where his decision was not clearly wrong - The court criticized the current state of the Queen's Bench Rules, which did not afford the Master's decision the same deference on appeal to the Queen's Bench.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - [See Practice - Topic 2239 ].

Practice - Topic 8804

Appeals - Duty of appellate court regard­ing discretionary orders - [See Practice - Topic 2239 ].

Cases Noticed:

Pankhurst v. Matz et al. (1991), 71 Man.R.(2d) 271 (C.A.), refd to. [para. 10].

Ormerod v. Todmorden Mill Co. (1882), 8 Q.B.D. 664, refd to. [para. 14].

Statutes Noticed:

Rules of Court (Man.), Queen's Bench Rules, rule 37.02(2), rule 37.03(1) [para. 19]; rule 62.01(10) [para. 17].

Counsel:

W.M. Molloy, for the appellants;

H.D. Van Iderstine, for the respondent.

This appeal was heard on October 6, 1994, before Huband, Philp and Twaddle, JJ.A., of the Manitoba Court of Appeal.

On October 18, 1994, Huband, J.A., delivered the following judgment for the Court of Appeal.