The Defendants in a construction related dispute applied to dismiss the Plaintiff contractor’s Claim for long delay, pursuant to Rule 4.33, or alternatively for inordinate and inexcusable delay under Rule 4.31. The Claim was commenced in 2003, but little activity occurred until 2007. The last step that was taken during a period of activity was when the Plaintiff finally delivered its responses to Undertakings on October 31, 2013, which Undertakings were given more than three years prior. Counsel for the Plaintiff sent correspondence over a year later about scheduling Questioning on the Undertaking responses, and then served a Notice of Continuation of Questioning on June 1, 2015 despite a previous consent Order which stipulated that all Questioning would be completed by April 2010.

The Plaintiff argued that the responses to Undertakings delivered on October 31, 2013 constituted a significant advance in the Action such that the Rule 4.33 Application must fail. The Plaintiff also argued that the exchange of correspondence between 2014 and 2015 invoked the exception in Rule 4.33(1)(d) because the Applicant had participated in proceedings for a purpose and, as such, the Rule 4.31 Application must fail. Master Robertson held that the Plaintiff’s argument confuses the two Rules: they apply to two different circumstances.

Master Robertson agreed that the answers to the Undertakings were substantive and significantly advanced the Action, so Rule 4.33 was not engaged. The focus was therefore on Rule 4.31. Master Robertson considered the correspondence between counsel, and observed that, although the letters may have suggested a potential willingness to participate in proceedings, no proceedings actually took place. More than 12 years had passed since the start of the Action, and the case was based on an oral agreement which was affected by fading memories. There had been long periods of inactivity and the delay was primarily caused by the Plaintiff’s lack of interest in moving the case forward. Master Robertson held that there was inordinate delay and it was inexcusable. Further, the Plaintiff failed to rebut the presumption of prejudice due to the delay. Accordingly, the Action was dismissed.