4.33: Dismissal for long delay

Case Summary

This is an Appeal of a Master’s decision to dismiss an Action for long delay. Rule 4.33 provides that, on Application, the Court must dismiss an Action if three or more years have passed without a significant advance the Action. The sole ground on Appeal was whether three undertaking responses (the “Responses”) significantly advanced the Action.

The Court examined the legal principles interpreting Rule 4.33 and considered whether the responses advanced the Action with regard to their nature, quality, genuineness, and timing or if they were perfunctory.

The Court examined the responses and characterized them as follows:

  • A response producing a Real Estate Purchase Contract and a response confirming that certain documents were no longer in existence had nothing to do with Action, according to the Pleadings;
  • An undertaking response producing a copy of a cheque that was relevant but failed to advance the Action in a significant way because it provided information already known to the parties. The undertaking response did not move the parties closer to resolution and functionally did not advance the Action in a significant way;

The Court determined that the Responses did not significantly advance the Action and dismissed the Appeal. The Court noted that under a functional approach, relevance and materiality starts with reference to the Pleadings. An undertaking response cannot become relevant for a 4.33 application even where the party seeking the undertakings at one point believed they were relevant.

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