The Defendants appealed an Applications Judge’s decision dismissing their Application to dismiss the Action for long delay, pursuant to Rule 4.33 (the “Appeal”).

The Plaintiff leased lands to the Defendants for a term of five years. The Defendants were in the business of hazardous and non-hazardous waste-disposal and treatment, as well as vacuum trucking services. The Plaintiff alleged that the Defendants caused damage to the leased lands, including contamination, and claimed damages as a result.

Following exchange of pleadings, the Plaintiff and Defendants exchanged Affidavits of Records (“AoR”). The final AoR was served on March 23, 2018. Questioning was scheduled for September 2020 but was adjourned at the request of Plaintiff’s counsel. The Plaintiff served a Supplemental AoR (“SAoR”) on March 22, 2021, which the Defendants acknowledged receipt of and stated they were reviewing. No steps took place following receipt of the SAoR and the Defendants filed their Application to dismiss for long delay on August 3, 2021 (the “Application”). The Applications Judge dismissed the Application on the basis that the SAoR significantly advanced the Action.

The Appeal proceeded on the record before the Applications Judge pursuant to Rule 6.14(3). The issue was whether the SAoR significantly advanced the Action. The Court held that at the time the SAoR was served, the central issues were the extent of the contamination and the cost to remediate. After considering the SAoR, the Court found the documents within did not assist in determining the central issues and therefore the SAoR did not significantly advance the Action. Accordingly, the Appeal was allowed, and Action was dismissed.