Master Mason

4.31: Application to deal with delay
4.33: Dismissal for long delay

Case Summary

The Plaintiff’s claim, which alleged wrongful dismissal, denial of disability coverage, and breach of contract, was initiated on March 1, 2012. After a period of delay, the Defendants (who were the Plaintiff’s insurer, former employer, and former employer’s parent company) applied to dismiss the Action for long delay pursuant to Rule 4.33, or alternatively pursuant to Rule 4.31.

After reviewing the chronology of the Action, Master Mason noted that if three or more years go by with no “significant advance” in the Action, the Court must dismiss the Action pursuant to Rule 4.33(2), unless certain exceptions to the Rule are engaged. Master Mason also noted that the Rule does not provide the Court with discretion; it is mandatory that the Action be dismissed if the conditions of the Rule are met. The strength of the claim, reason for the delay, and sympathy for the Plaintiff are not factors in the analysis. Ultimately, the Plaintiff is the party responsible for moving his or her claim forward in a timely manner.

The Court should employ a functional approach in determining whether an activity constitutes a “significant advance” that meaningfully brings the litigation forward. In doing so, the Court should consider the “nature, value, importance and quality of the activity”, with a focus on the step’s substance and effect, and not just its form. Even if a step is required by the Rules, a functional analysis should still be employed to determine whether the step constitutes a “significant advance”. Similarly, precedent cases that have found a particular step to be a “significant advance” are not determinative; the analysis should be made within the context of the Action.

The key issue in this case was whether the delivery of Undertaking responses by the corporate representative of two of the Defendants in July 2015 constituted a “significant advance”. Master Mason noted that Undertaking responses often advance the Action, in particular where they contain information that was previously unknown to the other party. However, Undertakings that are “merely perfunctory or where nothing hinges on them”, may not. Similarly, Undertaking responses that do not address an issue in the dispute; do not “significantly help determine one or more of the issues raised in the pleadings”; do not ascertain further evidence in respect of issues in the pleadings; or undertakings that are incomplete or contain “non-answers”, are not likely to significantly advance an Action.

Master Mason reviewed the Undertaking responses at issue, and held that they did not “significantly advance” the Action. A number of the Plaintiff’s Undertaking requests had been refused and were never followed up on, and the answers that were provided “add[ed] little if anything to the information already provided at questioning”. As such, they did not meaningfully move the litigation forward.

The Action was dismissed pursuant to Rule 4.33(2). Given this result, there was no need for Master Mason to address Rule 4.31.

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