MaSter Hanebury

4.31: Application to deal with delay
4.33: Dismissal for long delay
5.2: When something is relevant and material

Case Summary

The Defendants applied to dismiss the Plaintiff’s Action under Rule 4.33 or alternatively, under Rule 4.31. Master Hanebury reviewed the timeline of events leading up to the Defendants’ Application and considered the relevance of Rule 4.33 to the Application. Rule 4.33 provides that if three or more years have passed without a significant advance in the action, the Court must dismiss the action as against the applicant. The Plaintiff resisted the Application by relying on three steps that they argued had significantly advanced the Action: the Questioning by the Plaintiff of one of the Defendants on their Affidavit in response to an Application of the Plaintiff’s that was never heard; the answers to Undertakings that arose from that same Questioning on the Defendant’s Affidavit; and a Third Party Claim filed by one Defendant against the other Defendants.

Master Hanebury thoroughly reviewed the authorities which considered Rule 4.33, including authorities which held that the filing of pleadings, as well as conducting Questioning will generally be considered to significantly advance an Action. Master Hanebury also cited authorities which held that the Court should examine whether the answers to undertakings meet the test similar to that set out in Rule 5.2 for relevance and materiality in order to determine if the answers to Undertakings significantly advanced the Action.

Master Hanebury determined that, because the Questioning on the Affidavit and the Answers to Undertakings were completed in contemplation of an Application that was never heard, these steps did not significantly advance the Action. Master Hanebury also concluded that because the Third Party Claim that had been filed was for contribution and indemnity, and did not name new parties or make independent claims, that step did not significantly advance the Action. Master Hanebury granted the Defendants’ Application under Rule 4.33 and dismissed the Plaintiff’s Action. Master Hanebury held that the Application did not need to be considered under Rule 4.31, as the Action had already been dismissed pursuant to Rule 4.33.

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