The Plaintiff, Jacobs, appealed a Master’s Decision to grant the Application of the Defendant, McElhanney Land Surveys Ltd. (“McElhanney”), for dismissal of Jacobs’ case on the basis of delay pursuant to Rule 4.33.

The key dates and facts were that Jacobs had filed an Application for Summary Judgment on July 21, 2014, returnable on July 30, 2014. The Summary Judgment Application was adjourned by a Master in order to allow McElhanney an opportunity to cross-examine Jacobs. In September and October of 2014, the parties attempted to reschedule the Summary Judgment Application as directed by the Court but were not successful. In June of 2015, Jacobs served a Notice to Admit Facts and Written Interrogatories but McElhanney did not respond. There were further attempts to reschedule the Summary Judgment Application in October of 2016 which were not successful. Finally, Jacobs filed an Application for Advice and Direction from the Court on June 14, 2017 returnable July 21, 2017. McElhanney then brought an Application for dismissal for delay which was granted on the basis that the last “significant advance” in the Action had occurred on May 14, 2014 with the filing of Jacobs’ Affidavit of Records.

Jacobs appealed the Decision which granted McElhanney’s Application for dismissal for delay, and on appeal Graesser J. ruled that that Jacobs had taken steps to significantly advance the Action after filing his Affidavit of Records. Graesser J. clarified that an Application can amount to a “significant advance” for the purposes of Rule 4.33 even if it is not heard. In this case, Jacobs’ Summary Judgment Application was an honest attempt to advance the Action brought in timely fashion, and if it was not adjourned on McElhanney’s request, it could have disposed of the entire claim. Graesser J. ruled that the Summary Judgment Application was a significant advance using the “functional approach” advocated by the Courts. Graesser J. also ruled that the correspondence between the parties in September and October of 2014 was also a significant advance. The parties had been directed by the Court to consult each other on rescheduling. Therefore, the clock started to run for Jacobs to advance the Action on October 2, 2014 when the correspondence to reschedule to the Summary Judgment Application ceased. This meant that McElhanney’s Application to dismiss for delay was premature.

The Court then considered the other activities that took place during the course of the Action to determine whether there had been further significant advances. The Court also found that the Notice to Admit Facts served by Jacobs in June of 2015 was a significant advance. Rule 6.37 sets out the circumstances when a party may refuse to reply to a Notice to Admit Facts and these did not apply to McElhanney. Therefore, McElhanney was obligated to reply or apply to set the Notice aside - it did neither. The Court ruled that Jacobs’ service of Written Interrogatories was not a significant advance. The Court clarified that Rule 5.28 governing Written Questioning requires agreement by the parties to use Written Questioning and no such agreement existed between Jacobs and McElhanney. The Court agreed with the Master below that analysis of a Security for Costs Application and subsequent payment into Court does not constitute a significant advance under Rule 4.33.

Graesser J. concluded his analysis of Rule 4.33 by addressing the issue of stalling by a Defendant. The Court confirmed that it is the ultimate responsibility of the Plaintiff to advance the Action; however Rule 1.2 places responsibility on both parties to make good faith efforts to ensure an Action proceeds efficiently. In this case, the Court characterized McElhanney’s conduct as an “old school defence” by making things difficult for the Plaintiff and “using the Rules of Court as a shield.”

The Court then briefly addressed Rule 4.31. The Court found there had been no “inordinate and inexcusable” delay as required by the Rule. Jacobs had made significant efforts to move the Action to resolution but had been thwarted by McElhanney.

The Appeal was allowed with Costs.