All except one Defendant applied for dismissal of the claims against them pursuant to Rule 4.33. Applications Judge Summers defined the sole issue as whether the Plaintiff’s service of a Supplemental Affidavit of Records constituted a “significant advance of the Action” as required under Rule 4.33.

There was a preliminary disagreement between the parties regarding the burden of proof on an Application under Rule 4.33. The Applicants took the position that the onus always rests with the Plaintiff, who must demonstrate a significant advance in an Action. The Court disagreed, and held that absent some contrary intention being indicated in a statute or Rule, the burden of proof always lies with the Applicant to prove its Application on a balance of probabilities. In this case, that meant showing that there was no significant advance of the Action in the relevant time period.

In regard to the substance of the Application, the Applicants characterized the contents of the Supplemental Affidavit of Records as “insignificant” and not bearing on the facts in dispute between the parties. Having examined the nature, extent, and potential importance of the records disclosed in the Supplemental Affidavit of Records relative to the Pleadings, the Court disagreed, and held that its service constituted a genuine step taken by the Plaintiff to advance the Action.

Applications Judge Summers therefore dismissed the Application.