The Plaintiff appealed an Order that dismissed her Action for long delay under Rule 4.33. The Appeal was allowed and the Order dismaying her Action under Rule 4.33 was set aside.

The Appellant, self-represented, started an Action for damages of $290,000 for mold-related deficiencies in her condominium unit and common areas. At first, her claim included the condominium corporation and several of its directors as Defendants. On October 5, 2021, the directors applied for Summary Dismissal of the Action against them. The Appellant did not participate in that Application and the Application was heard and granted February 3, 2023.

Rule 4.33 prescribes that an Action can be dismissed if no significant advance occurs within three years. At issue was whether the Order granted February 3, 2023 summarily dismissing the Action against the director Defendants constituted a significant advance.

Justice Whitling noted that a significant advance in an Action, for the purposes of Rule 4.33(2), is one which advances the Action as a whole. It is not necessary for the party resisting Summary Dismissal to have initiated the event, and the event need not have directly involved the party seeking Summary Dismissal.

The Court held that the since the February 2023 Order identified the sole defendant in this litigation, it significantly narrowed the matters in dispute, and constituted a “significant advance”.