The Appellants appealed an Applications Judge’s Decision to dismiss their Action for long delay pursuant to Rule 4.33.

Rule 4.33 requires the Court to dismiss an Action if three or more years have passed without a significant advance in the Action. The Court noted that a significant advance is one that moves the Action forward in a meaningful way and that whether a step significantly advances the Action is determined by a context-sensitive, substance-over-form approach.

The Court agreed with the Applications Judge that each step taken after some of the Defendants served their Affidavit of Records did not constitute a significant advance in the Action. One of the steps that the Court considered was the filing of an Affidavit sworn by a non-party witness (the “Niehaus Affidavit”). However, the Court determined that the Niehaus Affidavit did not contain relevant and material information as contemplated by Rule 5.2.

The Appellants also argued that their efforts in a separate Originating Application seeking production of records (the “Records Application”) significantly advanced the Action. The Respondents argued that any records produced in the Records Application would be bound by the implied undertaking set out in Rule 5.33 not to use them for collateral purposes. However, the Court determined that, even if the Appellants could use those records, the Records Application was separate from the Action, was unknown the Respondents, and did not result in the disclosure of relevant and material information.

The Court dismissed the Appeal.