4.33: Dismissal for long delay

Case Summary

The Plaintiff appealed a Master’s decision dismissing his Action for long delay pursuant to Rule 4.33. The Plaintiff’s Action alleged the negligence of his former solicitor in unsuccessfully establishing patent infringement through expert evidence. While that Action was ongoing in Canada, the Plaintiff was also advancing a second patent infringement action in the United States which was similar, but not identical, to the previous Canadian patent infringement Action.

In the three years prior to the filing of the Application for dismissal for long delay, the parties had clearly engaged in settlement negotiations. Additionally, the Plaintiff had filed a Supplemental Supplemental Affidavit of Records, producing various documents from the U.S. Action. Justice Ross addressed both the settlement negotiations and the document production, considering whether either constituted a “significant advance” in the Action so as to prevent its dismissal.

With respect to the sufficiency of settlement discussions as a significant advance of the Action, Justice Ross had no doubt that the negotiations were genuine, but held that something more than a mere attempt at settlement was required. Taking examples from recent case law, Justice Ross commented that a narrowing of issues through admissions, or a narrowing of settlement quantum through a process of offer and counteroffer, would be sufficient. Nothing of the sort was apparent on the facts before the Court, so no significant advance was recognized.

With respect to the sufficiency of document production, Justice Ross noted that filing an Affidavit of Records is not itself sufficient to establish a significant advance, and rather, that its sufficiency is judged by the quality of the documents in moving the parties toward resolution. In reviewing the produced documents, Justice Ross agreed with the Master that an expert report disclosed from the U.S. action had lost its relevance through extensive redaction. Several other documents relating to the U.S. action were produced without redaction, though were ultimately deemed insufficiently relevant to the issues in play in the solicitor negligence Action to constitute a significant advance.

The Appeal from the Master’s decision to dismiss the Plaintiff’s Action for long delay was dismissed.

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