The Defendants applied to have the Action dismissed pursuant to Rule 4.33. That Application was dismissed by Applications Judge Summers. The Defendants appealed.

There were Applications for Summary Judgment and Summary Dismissal filed, but neither Application had been heard or decided. Cross-examinations occurred, and undertakings were responded to as late as December 5, 2021. There was also an Order requiring production of further documents in relation to the Applications. An Application to dismiss for long delay was filed June 2, 2022 by one Defendant, and another Application to dismiss for long delay was filed by a separate Defendant on October 28, 2022.

Justice Neilson applied a correctness standard to the Appeal. He considered whether there had been a “significant advance in the Action” in the three years and 75 days prior to the Applications, accounting for the extension granted for COVID-19. The Court stated that a significant advance is one that moves the Action forward in an essential way having regard to the nature, quality, genuineness, and timing of the advancing action. It is appropriate to take a functional, rather than formalistic, approach to this analysis.

The Court found that the steps taken related to Applications arising from the matter, but not the matter itself. While there was an Application for Summary Dismissal filed, it could not be considered a significant step as it had not been heard or decided.  Similarly, while records were ordered to be produced, they could not be considered a significant advance as they did not narrow issues or assist in the assessment of the merits of the case. The Appeal was therefore allowed.