The Plaintiff commenced two Actions against the Defendants for breach of contract, which were over 12 years old and had been proceeding side-by-side. The Defendants applied to dismiss the Actions for long delay under Rule 4.33, with a Rule 4.31 Application in aid. The main issue in both Actions was damages, which required expert evidence. The Plaintiff argued that it had difficulties obtaining expert opinion evidence, but that expert reports had been obtained and the only remaining step was to set the Actions down for Trial.

With respect to the Rule 4.33 Application, the Plaintiff argued several events constituted a significant advance in the Action such that no three year gap occurred: conditional provision of an expert report; answering an undertaking by stating that the records requested had been destroyed; and obtaining an Order directing that the Actions be tried concurrently. Master Schlosser applied a functional analysis to determine if the events raised by the Plaintiff constituted a significant advance, and whether the events accomplished one of the goals set out in Rule 1.2. Master Schlosser held that the conditional expert report and the undertaking response did not constitute a significant advance. However, the Court noted that the parties obtained a Consent Order to direct that the two Actions be tried concurrently after the Plaintiff filed an Application to consolidate the Actions. Master Schlosser held this to be a significant advance that facilitated the quickest means to resolve the claims at the least expense to the public resources, and that avoided the possibility of inconsistent results for the two closely linked Actions. Because the Plaintiff’s consolidation Application and subsequent Consent Order were within the three year time period for a significant advance, the Defendants’ Rule 4.33 Application was dismissed.

Master Schlosser considered Rule 4.31 and noted that the Court needed to consider whether the delay that was the basis for the Application was “inordinate and inexcusable in context of litigation”. The nature of the claims in an Action determined whether it required a quicker pace, or whether delays would lead to prejudice. The Court held that the “10 year gap created by the Limitations Act might pose a useful ‘best-before’ date”. It was also important to consider “whose fault the delay was”. With these principles in mind, Master Schlosser applied the test for a Rule 4.31 Application which asked: whether the non-moving party had failed to advance the Action to the point on the litigation spectrum that a reasonable litigant would have attained within the same time frame; whether the delay was inordinate; whether the inordinate delay was justified; whether the inordinate and inexcusable delay impaired a sufficiently important interest of the moving party to constitute significant prejudice; and, if the moving party relied on the presumption of prejudice created by Rule 4.31(2) and whether the non-moving party rebutted that presumption. The final step of the test also asked whether, if the moving party had met the criteria for granting relief under Rule 4.31(1), if there was a compelling reason not to dismiss the non-moving party’s Action.

In this case, Master Schlosser held that the Plaintiff’s delay was inordinate and could not be justified. However, the Defendants did not demonstrate significant prejudice, notwithstanding a presumption of prejudice on the facts. Because this case was a “documents case” where the expert opinion evidence, which was now available, occupied the central point in the Actions, the presumption of prejudice had been narrowly rebutted. The Defendants’ Rule 4.31 Application was accordingly dismissed.