The Plaintiffs appealed a Decision dismissing their Claim for long delay under Rule 4.33. The Plaintiffs commenced the Action in 2008 and the Defendants filed an Application for Summary Judgment on April 7, 2011. The Summary Judgment Application was adjourned sine die. Affidavits of Records were provided by the Plaintiffs on January 11, 2012, and their counsel advised of certain dates available for the hearing of the Summary Judgment Application in February and March of that year. Subsequently, counsel corresponded about dates for Questioning, but no dates were set. On January 7, 2015, Plaintiffs’ counsel sent another letter seeking dates for Questioning. On January 19, 2015, the Defendants filed an Application to dismiss under Rule 4.33. The Plaintiffs appealed the Master’s Decision to a Justice of the Court of Queen’s Bench and then to the Court of Appeal.

The Court of Appeal considered Rule 4.33, and remarked that, while there were delays in timely responses by both parties, there was no substantive evidence of an ambush on the part of Defendants’ counsel in applying for dismissal for delay. The Court of Appeal agreed that there was no express agreement to the delay so as to make the exception in Rule 4.33(1)(a) applicable. Further, Rule 1.2 does not override the mandatory language of Rule 4.33, and does not have the effect of requiring a Defendant to assume carriage of an Action where the Plaintiff is not actively pursuing its own Claim. As such, the Appeal was dismissed.