The Plaintiff commenced an Action against the Defendant on March 29, 2005 claiming money for a series of unpaid invoices relating to alleged extra work completed for the Defendant. The Plaintiff filed an Application pursuant to Rule 8.5 to set the matter down for Trial. The Defendant brought a Cross-Application to dismiss the Action for long delay pursuant to Rule 4.33 or, in the alternative, under Rule 4.31, on July 11, 2014. A number of procedural steps were taken in the Action with the last substantial procedure being the delivery of Undertaking Responses on July 22, 2014.

Justice Gates noted that it is well established that a Response to Undertaking can be a thing that materially advanced an Action, but there are exceptions. When an Undertaking Response is merely perfunctory and nothing hinges on the response, it will not materially advance the Action. Justice Gates noted some examples of things which would not advance the Action, such as perfunctory Undertaking Responses which include information that could have easily been obtained, or “clean up” Undertakings where a party simply confirms their memory on a point. His Lordship observed that the Court will consider the significance of the Undertaking Response in the overall context of the litigation. Gates J. held that the Undertaking Responses in this matter were material since they narrowed the issues in the litigation and tested the credibility of one of the witnesses. The Application under Rule 4.33 was dismissed.

Justice Gates went on to dismiss the Application under Rule 4.31 as no serious prejudice was caused by the delay. Justice Gates did, however, make an Order pursuant to Rule 4.31(1)(b) setting down a procedure to get the Action to Trial as quickly as possible. In light of this procedural Order under Rule 4.31(1)(b), there was no need to consider the Plaintiff’s Rule 8.5 Application.