The Defendants applied to dismiss the Plaintiff’s Action for delay under Rule 4.33 and 4.31. Master Schlosser’s analysis focused on whether certain steps taken in the litigation advanced the Action for the purposes of Rule 4.33. The steps in question were: certain answers to Undertakings and further production, a Judicial Dispute Resolution procedure (“JDR”), and an Expert Report. Master Schlosser noted that the Court is to apply a functional approach when applying Rules 4.31 and 4.33 in order to determine if the steps in the litigation significantly advance the Action.

Master Schlosser stated that there are two categories of events in a lawsuit, primary and ancillary steps. Master Schlosser provided that primary steps are those which are not optional, such as of Pleadings, which are meant to frame the issues as mandated by Rule 1.2, and Questioning. Master Schlosser stipulated that ancillary steps are less easy to categorize and will require more analysis.

Master Schlosser held that, in this case, providing responses to Undertakings cannot be significant just because they were requested. Master Schlosser noted that JDR under Rule 4.16(1) and Rule 8.4(3)(a) was no longer required as it is currently suspended, and determined that JDRs are a “grey area” between primary and ancillary steps. Master Schlosser also noted that Rule 4.17 provides that the purpose of a JDR is to provide a party-initiated framework for a Court to actively facilitate a process in which the parties may resolve all or part of a Claim by agreement, and that Rule 4.16(1) only requires good faith participation. In this case, good faith participation in the JDR between the parties constituted a significant advance in the Action even though not all of the issues in the Action were resolved. Master Schlosser held that, even though the provision of expert reports is not mandated by the Rules, they are useful to the Court. Master Schlosser referred to Rule 6.11, which provides that expert reports are available for use at a trial or during an application. Master Schlosser determined that the question to be asked in determining if an expert report is a significant step is: whether the report is “of any significant assistance in determining any of the issues in the pleadings”. Master Schlosser determined that the Expert Report in this Action did not significantly advance the lawsuit.

Master Schlosser held that no significant steps had occurred in over three years; therefore the Defendant’s Application under Rule 4.33 was granted. In the circumstances, the Court did not consider Rule 4.31.