4.31: Application to deal with delay
4.33: Dismissal for long delay
4.34: Stay of proceedings on transfer or transmission of interest

Case Summary

The Respondents applied to dismiss the Action for delay under Rules 4.31, 4.33, and 4.34(4). Malik J., the Chambers Justice, had dismissed the Action under Rules 4.31 and 4.33. The Appellants appealed that Decision. The Appeal was dismissed.

Having found that a six-year period of inactivity on a straightforward litigation was inordinate, Malik J. had dismissed the Action under Rule 4.31. The delay was also found to be inexcusable as the Appellants failed to take steps to advance the Action and to avail themselves of remedies available. The inordinate and inexcusable delay was held to give rise to a presumption of significant litigation prejudice, which the Appellants failed to rebut. Malik J. had held that, alternatively, the Action could be dismissed under Rule 4.33 as steps taken after 2013 had not significantly advanced the Action. In reaching this conclusion, Malik J. commented that steps such as filing a Notice of Appointment for Questioning or an Application to set a Trial date typically would not qualify a significant advance. While the Appellants’ ongoing document production efforts was relevant, it was not determinative given the overall lack of progress in moving the Action forward.

The Court of Appeal held that the Appellants failed to identify any reviewable error under the Rule 4.31 Application. The Court of Appeal further noted that Malik J.’s Decision to dismiss the Action was a discretionary one subject to deference on Appeal.

The Court of Appeal noted that the Appellants bore the primary obligation in moving the Action forward and should have resorted to available remedies. Malik J. had made no reviewable error in concluding that there was no support for the allegation that the Respondents deliberately obstructed or otherwise stalled the Action. The Court of Appeal found that, under the Rule 4.33 Application, Malik J. correctly stated and applied governing tests and principles. Malik J. correctly considered substance and not form in determining what constitutes a “significant advance”. The Court of Appeal further held that Malik J.’s finding that the Appellants had failed to advance the Action in a meaningful way was supported by the record and should not be disturbed on Appeal.

The Appeal was decided without resorting to Rule 4.34(4), which would allow an Application to dismiss the Action for delay under Rule 4.31 if an Order to continue an Action is not made within a reasonable time after the date on which the Action is stayed.

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