The Defendant/Appellant challenged the Decision of Mandziuk J. who had decided that it was not proper to dismiss two Actions by the Plaintiff/Respondent for lack of a significant advance under Rule 4.33(2). The Appellant argued that both Actions of the Respondent - one launched in November of 2013 (the “First Action”) and the second in April of 2016 (the “Second Action”) - were in substance the same Action. The Appellant also contended that nothing significant had happened after the Appellant filed his answers to Undertakings in September of 2014 in the First Action.

The Respondent asserted that the Second Action was intended as a substitute or cure for a defect in the First Action. It was the Respondent’s position that the Second Action, which was effectively approved to go forward by a decision of Graesser J. dated May 17, 2016 (the “Graesser J. Order”), was a significant advance as it combined the First Action and Second Action together.

The Court of Appeal found that the crux of the matter was whether or not the Graesser J. Order advanced the First Action. Were that First Action to be dismissed pursuant to Rule 4.33(2) for inactivity, it would create a conundrum as to the viability of the Second Action, which, arguably, would not itself be caught by Rule 4.33(2) but might run up against a different Rule.

The Court of Appeal found that it need not tackle this interesting question because the Court was persuaded that the Graesser J. Order must be taken to be a significant advance of the First Action as found by Justice Mandziuk. The Court concluded that the Appellant’s position before Mandziuk J. amounted to a collateral attack on the implicit ruling of the Graesser J. Order and that both Actions had sufficient arguable merit to proceed to a joint hearing. Had three years passed since the Graesser J. Order, the impact of Rule 4.33(2) would be implemented. However, a ruling that preserved both Actions against attack on grounds other than delay was determined to be a significant advance in the First Action. As such, it was not open to collateral attack.

The Court of Appeal concluded by dismissing the Appeal and stating that the ruling did not indefinitely preserve either Action but merely confirmed the Order of Justice Mandziuk which had not dismissed the two Actions.