Some of the Defendants by Counterclaim successfully applied to a Master to have the Counterclaim against them dismissed pursuant to Rule 4.33. The Plaintiffs by Counterclaim appealed the Master’s Decision, arguing that their prior Application to have the Plaintiff’s builders’ lien vacated significantly advanced the Counterclaim Action.

Shelley J. referred to prior authorities and noted that determining whether there had been a significant advance in an Action requires a functional approach, which considers whether the step in question moves the lawsuit forward, with a focus on substance rather than form.

Although Justice Shelley noted that the Builder’s Lien Act RSA 2000, c B-7 can affect the procedures to be followed in litigation, in this case the Plaintiff did not take any action within the time limits set out in the Builder’s Lien Act. Therefore, discharge of the Lien did not advance this Action because the Lien was not in any way affecting the conduct of the Action. The Application to discharge the lien after it expired was successful due to the Plaintiff’s inaction. Shelley J. dismissed the Appeal.