This was an Appeal from the Decision of a Master dismissing the Action on the basis of long delay. The central issue on Appeal was whether an unfiled Affidavit that was sworn and provided to opposing counsel significantly advanced the Action, such that the Application to dismiss for long delay could not succeed pursuant to Rule 4.33.

The underlying facts involved a contractual dispute, as between the Appellant, Richardson Pioneer Ltd. (“Richardson”) and the Respondent, Hutterian Brethren Church Of Silver Valley (“Silver Valley”). The Action was started in April 2016 by way of Statement of Claim. Regular advances in the Action continued through October 2016, following which, in September 2017, Richardson advised Silver Valley of its intention to file an Application for Summary Judgment. Though Richardson provided unfiled copies of its Application and accompanying Affidavit and Silver Valley expressed a likely intent to question on the Affidavit, no date was set for Questioning. In October 2017, counsel for Richardson advised that it was passing the file to a colleague. Though the colleague contacted Silver Valley in 2018 to arrange for Questioning, no Questioning was ever conducted and the file proceeded to languish until Silver Valley brought its Application to dismiss.

In upholding the Master’s dismissal, the Court relied on the “functional approach”, which asks: "whether the advance in an action moves the lawsuit forward in an essential way considering its nature, value, importance and quality…". The Court went on to find that the Summary Judgment Application, and in particular the Affidavit filed therewith, failed to “significantly advance” the Action, as it did nothing to narrow the issues, complete disclosure, or clarify the positions of the parties. The Court characterized the Affidavit as primarily a restatement of the allegations made in the Statement of Claim.

Moreover, the Court held that the Action could not be saved by virtue of Silver Valley’s failure to confirm its intention to question or agree to dates for Questioning. On this point, the Court noted that although all parties to an Action are obligated to communicate honestly and manage the litigation effectively pursuant to Rules 1.2 and 4.2, one party’s alleged failure to do so is insufficient to override the clear language of Rule 4.33, and in any event was not at issue in this case.