Justice Feasby required the parties to provide the Court with a litigation plan pursuant to Rule 4.33(3) to address the procedural delays and ensure the timely progression of the case.

The Court adopted an approach similar to a "final offer arbitration" (“FOA”) to determine the appropriate litigation plan. The Court noted that this method encourages parties to bargain in good faith and propose reasonable plans, as extreme positions are unlikely to be accepted.

Justice Feasby emphasized that Rule 4.1 places the primary responsibility on the parties to manage their dispute and plan its resolution in a timely and cost-effective manner. Justice Feasby followed that while FOA is effective for straightforward procedural disputes, Rule 4.6 allows for flexibility in more complex cases. In such instances, the Court may need to make separate decisions on individual components of a litigation plan rather than simply choosing between two proposals.

Justice Feasby preferred the Plaintiffs' litigation plan because it provided specific calendar dates for all relevant pre-Trial steps, which was crucial given the delays that had already occurred in the case. The fixed deadlines in the Plaintiffs' plan offered certainty to the parties and facilitated easy enforcement by the Court, aligning with the principles of Rule 4.1, which emphasizes timely and cost-effective resolution of disputes.

The Plaintiffs’ plan also included a timeline for hearing a previously filed partial Summary Judgment Application without allowing it or any other Application to obstruct the goal of having the case ready for Trial within one year. This approach was consistent with Justice Feasby's direction to expedite the litigation process and avoid unnecessary delays.

In contrast, the Defendants' litigation plan relied heavily on waiting for the resolution of an Appeal and a Rule 4.31 Application for dismissal due to inexcusable delay before proceeding with any pre-Trial steps. Justice Feasby found this approach unacceptable, as it would likely delay the Trial readiness far beyond the one-year deadline he had set. Additionally, the Defendants’ plan left much of the scheduling in the hands of the Case Management Judge, which could lead to further delays given the current strain on Court resources.

Justice Feasby ultimately chose the Plaintiffs’ litigation plan, emphasizing that the parties must take the deadlines outlined in the plan seriously. He cautioned that there would be consequences for any failure to adhere to these deadlines, underscoring the importance of maintaining the pace of litigation as directed by the Court.