The Defendants appealed a Decision by an Applications Judge dismissing their Application to have the Action dismissed for delay under Rule 4.33(2). At issue was whether the Plaintiff’s Affidavit of Records constituted a significant advanced in the litigation. Justice Moore ultimately found that the Affidavit of Records did not significantly advance the litigation and dismissed the Plaintiff’s claim.

The Court noted that an Appeal from an Applications Judge is de novo and the Decision is reviewed on the correctness standard. Rule 4.33(2) provides that if three or more years have passed without a significant advance in an Action, the Court must dismiss the Action unless the exceptions contemplated in Rules 4.33(2)(a) and (b) apply. Rule 4.33 is mandatory and serves to promote a fair, just and efficient litigation.

A Respondent to a Rule 4.33 Application has significantly advanced the Action when it has done something “which increased by a measurable degree, the likelihood of either of the parties or the Court having sufficient information to rationally assess the merits of the parties’ positions and be better positioned to either settle or adjudicate the dispute”. Justice Moore noted that in order to significantly advance the Action, an Affidavit of Records must “narrow the issues, complete the discovery of documents and information or clarify the positions of the parties”. A functional analysis is undertaken in the particular context of each lawsuit looking to determine if the lawsuit was moved forward given the nature of the advance, its importance, quality and timing.

The Plaintiff’s Affidavit of Records consisted of 22 documents, 17 of which were corporate searches of the Defendants through a public registry. The remaining 5 documents were documents that were relevant but in the Defendants’ possession, or documents not relevant to the claim. Justice Moore found that the 17 corporate searches were irrelevant to a claim for wrongful dismissal. The Plaintiff failed to include any documents that would move the litigation forward, such as an updated curriculum vitae, his new employment position and income, or any records pertaining to mitigation efforts.

Accordingly, the Just Moore found that Plaintiff’s Affidavit of Records failed to move the litigation forward in any substantial fashion and his claim was dismissed under Rule 4.33.