Kidder v. Coldswitch Technologies Inc.

Kidder v. Coldswitch Technologies Inc.

The court declined to dismiss Kidder's claim and counterclaim for want of prosecution. Although the court found the period from December 2005 to December 2008 involved inordinate and inexcusable delay attributable to both parties, Coldswitch had acquiesced in much of the delay and Kidder discharged the evidentiary burden of prejudice on balance; additionally, justice required permitting the claim to proceed because dismissal would deprive Kidder of potential remedies and unfairly prejudice his reputation. The application was adjourned and the court ordered concrete trial and discovery directions to be implemented.

Citation
2009 BCSC 1274
Parties
Plaintiff (action S015701); Defendant (action S015955): John Kidder; Defendant (action S015701); Plaintiff (action S015955): Coldswitch Technologies Inc.
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
17 September 2009
Procedural Posture
Civil (wrongful Dismissal, Contract/rescission, Arbitration Issues) / Interlocutory Application to Dismiss for Want of Prosecution; Pre Trial Scheduling and Discovery Disputes
Outcome
Application to dismiss for want of prosecution refused (adjourned generally); court ordered timetable for trial and discoveries instead of dismissal.
Legal Topics
Want of Prosecution, Dismissal for Delay, Discovery, Rescission, Wrongful Dismissal, Costs
Source Language
English
Civil Procedure Employment Law Contract Law Arbitration Law Want of Prosecution Dismissal for Delay Discovery Rescission +2 more

Case Brief

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Parties

John Kidder

Plaintiff (action S015701); Defendant (action S015955)

Coldswitch Technologies Inc.

Defendant (action S015701); Plaintiff (action S015955)

Procedural Posture

Civil (wrongful Dismissal, Contract/rescission, Arbitration Issues) / Interlocutory Application to Dismiss for Want of Prosecution; Pre Trial Scheduling and Discovery Disputes

Legal Issues

  1. 1 Whether plaintiff delayed and whether delay is inordinate
  2. 2 Whether any inordinate delay is inexcusable
  3. 3 Whether defendant has suffered prejudice from delay

Ratio Decidendi

The court declined to dismiss Kidder's claim and counterclaim for want of prosecution. Although the court found the period from December 2005 to December 2008 involved inordinate and inexcusable delay attributable to both parties, Coldswitch had acquiesced in much of the delay and Kidder discharged the evidentiary burden of prejudice on balance; additionally, justice required permitting the claim to proceed because dismissal would deprive Kidder of potential remedies and unfairly prejudice his reputation. The application was adjourned and the court ordered concrete trial and discovery directions to be implemented.

Court Disposition

Application to dismiss for want of prosecution refused (adjourned generally); court ordered timetable for trial and discoveries instead of dismissal.

Orders

  • Trial of both actions to be heard within one year of September 15, 2010; parties to agree a date immediately
  • All examinations for discovery to be completed within six months prior to the trial date (excluding Rule 28 examinations)