This was an Appeal of a Master’s Decision dismissing the Action for long delay pursuant to Rule 4.33. The Appellant asserted that the Action had been materially advanced in the three years after Questioning when the Respondents completed replies to undertaking responses which were not provided to the Appellant.

Rule 4.33 is mandatory and does not allow for discretion. The Court stated that it must consider the steps by both parties in determining whether the Action had been materially advanced.

Justice Malik noted that while the foundational rules (including Rule 1.2) may inform the functional analysis of whether something significantly advanced an action, they do not operate to provide a Court with discretion to allow an action to proceed if three or more years passed without a significant advance in the Action.

Rule 4.33 requires a functional analysis that focusses on substance and effect, but not form.

The Court determined that, while the Respondents failed to engage and respond to the Appellant’s inquiries and did not comply with their obligations pursuant to Rule 1.2, their conduct did not disentitle them from bringing the Rule 4.33 Application.

The Court found that there had been no material advance in the Action in the three years after Questioning. The Court noted that the mere collection of information by one party to comply with its obligations to answer undertakings does not materially advance the Action, particularly where the opposing party had no knowledge that this was done.