4.33: Dismissal for long delay

Case Summary

The Applicant applied to dismiss an Action for long delay pursuant to Rule 4.33. Rule 4.33 requires the Court, on application, to dismiss the Action against an Applicant where three or more years have passed without a significant advance in the Action.

The Respondent served an Affidavit of Records listing more than 1,700 producible records. Over two months later, the Respondent provided the records to the Applicant in electronic format. The parties agreed that serving the AOR significantly advanced the Action but disagreed as to whether providing the records in electronic format did so.

After reviewing cases, the Court determined that whether an event constitutes a significant advance is considered in context using a functional approach. The Court also noted that a party’s documents are technically produced when the AOR is prepared and served, but that it is more aligned with the practicalities of modern litigation to provide records in electronic format rather than appearing in person to review paper copies individually. As such, the Court determined that providing the records in electronic format significantly advanced the Action and dismissed the Application.

View CanLII Details