The Defendants applied for Dismissal of the Action for Long Delay pursuant to Rule 4.33 on the basis that the last significant advance in the Action was the filing and service of Third Party Claims; alternatively, forwarding an expert report could extend the timeline by several months, but the Plaintiffs were still beyond the Rule 4.33 date.

As an initial issue, Master Farrington considered whether without prejudice settlement offers could be considered during a Rule 4.33 Application. Master Farrington held that without prejudice settlement offers were admissible for the purposes of considering if there had been an advancement of the Action. Master Farrington summarized the law relating to dismissal for long delay and focused on the need for a cultural shifts since Hryniak v Mauldin, 2014 SCC 7. The focus is now on whether a particular activity has moved a matter closer to resolution. Master Farrington emphasized that the Court should look beyond just the regimented steps under the Rules, and focus on whether a particular activity actually narrowed issues or otherwise advanced a matter towards Trial. The Court also referred to prior authority which considered Rules 4.16 and 8.4 and the need for parties to dutifully advance their Actions.

Master Farrington dismissed the Application, noting that the detailed settlement letters exchanged between counsel provided substantive analysis that helped to narrow the issues in the matter and bring it closer to resolution. Master Farrington stressed that the settlement letters provided significant details about the state of the case and helped advance the Action towards Trial.