master mason

1.2: Purpose and intention of these rules
4.33: Dismissal for long delay

Case Summary

The Plaintiffs commenced four Actions concerning the education and medical treatment of their children, and subsequent apprehension of the children by the Director of Child Welfare. The Defendants in each of the four Actions applied to dismiss the Plaintiffs’ Actions for long delay under Rule 4.33. The four Actions were directed to be tried together and there was no dispute that activities in one of the Actions might serve to advance the other Actions for the purposes of Rule 4.33. The Defendants submitted that the last activity that could have significantly advanced the Actions occurred no later than March 21, 2013, when the Plaintiffs supplied their producible records. The Plaintiffs submitted that several other subsequent steps had occurred that significantly advanced the Actions.

Master Mason noted that Rule 4.33(1) provides that, if three or more years had passed without a significant advance in an Action, the Court must dismiss the Action. Pursuant to Rule 4.33, for a step to significantly advance an Action, it must move the parties closer to a resolution. Master Mason noted that Rule 1.2 has shifted the dominant mechanism for resolving civil disputes from an emphasis on Trial to procedures such as Summary Dismissal and alternative dispute resolution. Additionally, the focus should be on the outcomes or consequences of anything done by the litigants to significantly advance the Action. Master Mason confirmed that the Court has no discretion to allow an Action to continue if the requirements of Rule 4.33 are met and it generally falls on the Plaintiff to keep the claim moving forward.

Master Mason considered whether the Plaintiffs’ preparation and delivery of binders entitled “Summary of Facts in this Action” to the Defendants, which contained reproductions of the Plaintiffs’ allegations, along with excerpts from produced records was a significant step. Master Mason held that the binders did not assist in the resolution of any of the issues between the parties, narrow the scope of the claim, or otherwise move the parties closer to resolution, so they were not considered a step under Rule 4.33. The Plaintiff had also proposed that adjourned Applications for Summary Dismissal that were never determined by the Court were a step to a significantly advance the Action. Master Mason noted that nothing was achieved by filing and subsequently adjourning the Summary Dismissal Applications; therefore, they did not significantly advance the Actions.

Master Mason also held that the circulation of a suggested Litigation Plan, and the Plaintiffs’ counsel’s withdrawal did not significantly advance the Action. The Plaintiffs also suggested that their proposed Amended Amended Statements of Claim significantly advanced the Action. Master Mason did not agree, as the Defendants did not consent to the amendments and the Plaintiffs did not apply to the Court for Leave to make the amendments. Further, a letter sent by the Plaintiffs attempting to reduce the complexity of the four Actions did not provide new relevant and material information, narrow the issues, or provide any other form of progress toward resolution.

Master Mason held that no significant advancement of these four Actions occurred in the three year period after March 21, 2013, and all four Actions were dismissed for long delay pursuant to Rule 4.33.

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