Precision Drilling International B.V. v. The “BBC Japan” et al.

This was an appeal from an order of a Prothonotary dismissing the action for delay after a status review. The only explanation for the delay was that the Plaintiff had been negotiating a settlement with one of the Defendants. The appeal Judge considered first whether discretion should be exercised de novo on the appeal and held that it should since the Prothonotary’s decision was final. The appeal Judge then considered the proper test to be applied and noted that the questions to ask were: 1) What are the reasons for the delay and do they justify the delay? and, 2) What steps are proposed to move the matter forward? The appeal Judge further noted that the overarching concern should be whether the Plaintiffs recognize their responsibility to move the action along and are taking steps to do so. Applying this “liberal” approach the Judge held that although the Plaintiff might have provided a better explanation for the delay it had justifiably explained the delay. The Judge further found that although the Plaintiff had failed to propose a time table they did ask that the matter be set over for a few months to allow the settlement to be finalized. The Judge considered this a reasonable response and queried why the court should insist on litigants preparing an artificial timetable when the parties are involved in meaningful negotiations. In the result, the appeal was allowed and the order dismissing the action set aside.