The Appellant appealed a Master’s decision to dismiss an action for delay pursuant to Rules 4.31 and 4.33. The Parties to the claim had exchanged documents and discussed a litigation plan. No litigation plan was ever agreed to by the Parties or ordered by the Court nor was Questioning conducted.

Rule 4.33 requires a significant advance of the Action within a three-year period. For the purposes of Rule 4.33, the three-year period is measured from the last uncontroversial significant advance. In this case, this was the filing of a Statement of Defence to Third Party Notice on September 21, 2015. This meant that the three-year period was to be measured from September 21, 2015, to September 21, 2018.

On Appeal, the Appellant argued that there were three significant advances that occurred in the three-year period including: the filing of a boiler plate Statement of Defence to Counterclaim, substantial efforts to schedule Questioning, and proposing a litigation plan. The Court disagreed and found that none of these steps constituted a significant advance in the Action.

Regarding Rule 4.31, the Appellant argued that it had, in effect, been ambushed when the Defendants raised the delay issue. The Court did not accept this argument. The Plaintiff bears the responsibility to prosecute its claim. There was no evidence that any of the Defendants obstructed, stalled, or delayed the prosecution of the Claim. The Defendants at all times were willing to conduct Questioning which the Plaintiff bore the responsibility for arranging.

The Appeal was dismissed.