The Defendants sought dismissal of the Plaintiff’s Action for long delay, pursuant to Rule 4.33. The Application was successful before an Applications Judge. The Plaintiff appealed that decision, arguing that the production of records in an Affidavit of Records was not a significant advance of the Action.

In considering whether the Action ought to be dismissed under Rule 4.33, the Court considered whether there was a period of at least three years without a significant advance in the Action. The last uncontroversial advance in the Action was the provision of the Affidavit of Records of the Third-Party Defendant in September of 2017. Although the Defendant’s Affidavit of Records was also provided in September of 2017, in October of 2018 the Plaintiff requested that the Defendant’s producible records be provided in electronic format, with those records being produced shortly thereafter.

The Plaintiff took the position that the Defendant’s provision of their producible records was a significant advance in the Action and that, as such, dismissal of the Action would be inappropriate. The Defendant submitted that the production of the records was a mere procedural formality.

The Court noted that, although the records had been disclosed in the Defendant’s Affidavit of Records, they had not been produced. The Court discussed that the Rule uses these two terms separately. Justice Thompson held that the production of records was a genuine and necessary step for the Plaintiff to assess the merits of its case and to prepare for further steps. Given the complex factual circumstances of the Action, a review of the records was essential in advancing the Action, and such a review required the documents to be produced rather than merely disclosed. The appeal was allowed, and the Defendant’s Application for dismissal under Rule 4.33 was dismissed.