Master Schlosser

4.31: Application to deal with delay
4.33: Dismissal for long delay
13.18: Types of affidavit

Case Summary

The Plaintiff commenced an Action following a motor-vehicle collision in 2008 which had not resulted in any injuries. The Action had progressed to answers on Undertakings in July of 2013, which the parties agreed had significantly advanced the Action. The Plaintiff had applied for a procedural Order respecting a Litigation Plan on June 15, 2016 which was shortly before the three year mark from the delivery of Undertaking Responses, and served their sworn Affidavit of Records on June 30, 2016, which it argued significantly advanced the Action. The Defendants disagreed and cross-applied to strike the Action for long delay.

Master Schlosser noted that a number of recent cases have clarified Rule 4.33 Applications, all of which stipulate that a functional approach is to be taken with respect to whether events constitute a “significant advance”. An event which is mandated by the Rules is not, by that fact alone, a significant advance. Master Schlosser held that the Affidavit of Records significantly advanced the Action, as did the Plaintiff’s Application, as success thereon would have been likely. Master Schlosser also noted that an email from defence counsel stating they had no further records to produce may also have significantly advanced the proceedings.

Master Schlosser noted that the Affidavit filed by the Defendants in support of the strike Application was improper. It was an Affidavit sworn by a legal assistant that was based on information and belief. Master Schlosser noted that Rule 13.18(3) is mandatory and thus renders such evidence impermissible in a “final” Application to strike under Rules 4.31 and 4.33. Master Schlosser held that the delay in the Action was not inexcusable or inordinate, as required by Rule 4.31, as it had “a reasonably strong pulse for most of its existence”. Further, Master Schlosser noted that there was no prejudice to the Defendants, rebutting the presumption in Rule 4.31(2). The Application for the Litigation Plan was granted and the Cross-Application for dismissal for long delay was dismissed.

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