master prowse

4.33: Dismissal for long delay

Case Summary

The Defendant applied for an Order dismissing the Action pursuant to Rule 4.33 because the last significant advance was Questioning which took place on September 28, 2012. The Plaintiff argued that it provided Answers to Undertakings within three years, on September 25, 2015, and that this significantly advanced the Action. The Defendant replied that the Undertaking Responses were perfunctory and of marginal relevance, and therefore did not constitute a significant advance. The Defendant argued further that the Plaintiff had delayed answering the Undertakings until the last possible moment in order to drag out the lawsuit. Master Prowse noted that, even Undertaking Responses provided in an “arguably tardy fashion” can significantly advance an Action as long as the party providing them is not delivering them in a “‘year-by-year’ scenario where the plaintiff is deliberately stretching out the three year drop dead period”. The Court determined that, while none of the Answers to Undertakings were of critical importance, they were responsive to the Undertakings requested and the answers significantly advanced the Action. Accordingly, Master Prowse declined to dismiss the Action pursuant to Rule 4.33.

View CanLII Details