The Defendants in a motor vehicle lawsuit applied to dismiss the Action for delay pursuant to Rules 4.31 and 4.33. The Applications were filed on August 18, 2014 and September 23, 2014, respectively. The Plaintiff argued that service of his sworn Affidavit of Records on September 2, 2011 constituted a significant advance in the Action. The Defendants argued that this was a meaningless step because the Plaintiff previously submitted an unsworn draft Affidavit of Records on July 29, 2011, which was identical to the sworn version.

After numerous letters over the years and failed attempts at scheduling Questioning, the Plaintiff finally served an appointment for Questioning returnable August 22, 2014, which was received by Defendants’ counsel on August 1, 2014. Defendants’ counsel advised that she would not be producing the Defendant, Mr. Cheecham, for Questioning because she would be bringing an Application to dismiss pursuant to Rule 4.31 or 4.33. The Plaintiff then filed and served a Notice to Admit Facts on August 12, 2014 and brought an Application to compel Mr. Cheecham to attend Questioning pursuant to Rule 6.38. Master Mason heard the Rule 6.38 Application and ordered Mr. Cheecham to attend Questioning on August 27, 2014 without prejudice to the Defendants’ Rule 4.31 Application. The Defendants served a Statement of Objection to the Notice to Admit Facts on August 29, 2014, stating that it was only served after notice of their intention to bring the Applications for delay. Both delay Applications were adjourned to a Special Application before Master Mason.

Master Mason noted that a completed procedural step required by the Rules always qualifies as a material advance and, here, the procedural step was the service of an Affidavit of Records, as required by Rule 5.5. Rule 5.6 required the Affidavit of Records to be in Form 26 which contemplates it being sworn or affirmed. A sworn Affidavit of Records confirms that the litigant has disclosed all relevant and material records, which gives rise to the presumption that they are authentic admissions by the provider, pursuant to Rule 5.15. Any records not disclosed in the sworn Affidavit of Records may only be used in evidence thereafter if in accordance with Rule 5.16. Additionally, the failure of a party to comply with Rule 5.5 exposes it to penalty Costs, per Rule 5.12(1)(a), or a striking of the pleadings, per Rule 3.68(4)(b). A consideration of these Rules relating to service of a sworn Affidavit of Records emphasizes its importance in the litigation process. Accordingly, Master Mason held that service of the unsworn Affidavit of Records did not complete the procedural step in Rule 5.5. The Defendants had put the Plaintiff on notice that they insisted on strict compliance with Rule 5.5, so the Plaintiff provided a draft version, likely to avoid a penalty Costs Application. The sworn version was provided within a reasonable period of time in the circumstances. This was not done last minute to stop the tolling of the three-year period, nor did the Plaintiff deliberately drag out the process in providing the sworn Affidavit of Records so as to cause delay. As Questioning was completed within the three-year window, Master Mason dismissed the Application for long delay under Rule 4.33.

Master Mason then considered inordinate and inexcusable delay causing prejudice under Rule 4.31. It was held that an inordinate delay had occurred as nothing significant took place between service of the sworn Affidavit of Records on September 2, 2011 and the Rule 4.31 Application on August 18, 2014. Most of this delay was unexplained and inexcusable. However, the evidence of Mr. Cheecham given at Questioning raised a legitimate doubt about the existence of significant prejudice to the Defendants by the delay. As such, the Rule 4.31 Application was also dismissed.