The Defendant appealed the Chambers Judge’s Order which had dismissed the Defendant’s Application to dismiss the Action for long delay under Rule 4.33. The Chambers Judge found that two things occurred during the alleged three year delay which significantly advanced the Action: the parties had discussions regarding the scheduling of a Trial of an issue, and Plaintiffs’ counsel provided a without prejudice letter indicating a willingness to recommend a settlement offer of a particular value to their client. The Chambers Judge found these steps to be reasonable efforts to ensure a timely resolution to the litigation, which would have significantly advanced the Action had they been successful.

The majority of the Court of Appeal Panel held that the interpretation of the Rules raises questions of mixed fact and law, reviewable for correctness, however, that a deferential standard is appropriate where the decision arises from a consideration of the evidence as a whole, as opposed to the articulation and application of the correct test.

Both the majority and dissent confirmed that the proper test on a 4.33 Application is the functional test which requires a contextual and purposive assessment of whether there has been “a significant advance in (the) action” within a 3 year period. The majority found that the Chambers Judge articulated the correct test, but erred in its application. The majority noted that although the outcome of any step is not determinative of whether a significant advance has occurred, the process must still produce a significant advance. The majority found that there was no evidence that the steps which occurred resulted in new information being discovered, the narrowing of issues, or the clarification of issued, and therefore allowed the Appeal. The Action was struck.

In dissent, Justice O’Ferrall stated that it was unfair to punish the Plaintiff for taking “meaningful, genuine, and consistent steps” to further the Action where the Defendant rejected all proposed advancements. Justice O’Ferrall noted that Defendants are obliged by Rule 1.2 to not engage in stalling or delay tactics, and that the Defendant cannot have the matter struck for delay where the Defendant has failed to meet their obligations under Rule 1.2. Justice O’Ferrall stated that the purpose of Rule 4.33 was to strike Actions which had “truly died” and that purpose was not met through the striking of the present Action as the Plaintiff was able to demonstrate continual attempts to move the matter forward. Justice O’Ferrall would have dismissed the Appeal.