4.31: Application to deal with delay
4.33: Dismissal for long delay

Case Summary

The Defendants had brought an Application to dismiss the Plaintiffs’ Action for long delay under Rule 4.33, or alternatively under Rule 4.31 based upon significant prejudice.

With respect to Rule 4.33, the Plaintiffs argued that three steps taken in May, November and December of 2016 constituted a significant advance in the Action. In May 2016, the Defendants’ adjuster asked the Plaintiffs’ former counsel for further documentation and to set up a conference call. The Court accepted that there was an extensive amount of questioning and information provided during this phone call. In November 2016, counsel for the Plaintiffs provided the Defendants with further documents. In December 2016, counsel served the Defendants with an Affidavit of Records.

Master Summers found that cumulatively, what occurred between May and December of 2016 was a significant advance in the Action. In particular, Master Summers found that the conference call of 34 minutes, where there was an extensive amount of questioning and information provided, constituted a significant advance. The Court emphasized that this analysis was a functional one, as “the Plaintiff providing extensive information on the issues of liability and damages does functionally advance the action in a material way”.

The Court also underscored that not every exchange of information between parties may be considered a significant advance, and that the decision here was fact-specific.

With respect to Rule 4.31, the Court highlighted that although Rule 4.31(2) provides for a presumption of significant prejudice, that presumption is rebuttable. Master Summers agreed with the Plaintiffs that the Defendants had not suffered significant prejudice due to the delay that occurred. With that, Master Summers highlighted that eight years had passed since the impugned breach had occurred, which did not countenance delay. Therefore, while Master Summers dismissed the Defendants’ Application, Master Summers also directed the parties to submit an Application for a litigation plan within 30 days.

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