Pursuant to Rule 4.33, the Defendants brought an Application to dismiss the Plaintiff’s Claim for long delay. The sole issue in the Application was whether or not an Order resolving conflict of interest issues in the Action constituted a step that “significantly advanced” the Action. Germain J. exhaustively reviewed prior jurisprudence setting out what constitutes a step that significantly advances an Action.

Germain J. noted that Rule 4.33 ought to be interpreted with regard to Rule 1.2 to expeditiously move claims forward. Germain J. also noted that a functional analysis ought to be used when assessing if a step materially advanced an Action. A Court ought to “focus on its function, not whether an act fits into a defined category of activities”. Germain J. also noted that, if there is ambiguity about whether or not a step materially advanced an Action, the interpretation more favourable to preserving the right to litigate should be adopted.

When analyzing the Order in question, Germain J. noted that it advanced the litigation because it “clarified and cleared up energy-wasting conflict resolution problems”. The Order would also allow the more timely flow of documents between the parties, and thus, materially advance the Action. Justice Germain dismissed the Defendants’ Application.