The Defendant brought an Application under Rule 4.33 to dismiss the Action for delay, alleging that more than three years had passed since the last significant step taken in the Action.

The Court first reviewed case law outlining the principles for applying Rule 4.33. The Plaintiff bears the ultimate responsibility for prosecuting the claim in a timely manner. The Defendant cannot purposively obstruct, stall, or delay the Action. Any three-year period of inactivity will require dismissal of the Action, subject only to an exception where the moving party has participated in steps after the three year period expires. The Rule is mandatory and does not allow for the exercise of discretion.

In analyzing Rule 4.33, it is implied that the time between issuance and service of a Statement of Claim does not count when measuring the period of inactivity. The Rule goes further to provide that once a Statement of Claim is served, the “significant advance” clock is on hold until a defence is filed or one year elapses, whichever is shorter.

In the present case, the Statement of Claim was filed on October 30, 2014, and served on December 7, 2014. The Court held that this time did not count towards the “significant advance” clock. The Defendant had not filed a Statement of Defence, meaning that a full year after service of the Statement of Claim is factored out, bringing the relevant start date of the three year period to December 7, 2015.

The measure of the drop-dead analysis starts from the date that the Application is filed, being November 30, 2018 in this case. Consequently, the Rule 4.33 Application was seven days short of the full three years. Additionally, the Court held that disclosures made by the Plaintiff in 2015 and the Defendant in 2017 would constitute a significant advance of the Action.

The Court dismissed the Defendant’s Application both because of the significant advances that occurred in 2015 and 2017, and determined that the drop-dead Application was premature.