4.31: Application to deal with delay
4.33: Dismissal for long delay

Case Summary

The Applicants applied for dismissal for long delay pursuant to Rules 4.31 and 4.33. The Respondent was named a joint personal representative of her mother’s estate (the “Estate”) after her mother (the “Deceased”) died.

The Court noted that Rules 4.31 and 4.33 are intended to address litigation delay. Rule 4.33 requires the Court, on application, to dismiss the Action against an applicant where three or more years have passed without a significant advance in the Action. Rule 4.31 allows the Court to dismiss an Action where a delay has resulted in significant prejudice to a party.

The Court dismissed the Action pursuant to Rule 4.33 and, therefore, did not consider the effect of Rule 4.31. The Court determined that the last significant step in the litigation was a Case Management Conference that occurred on July 31, 2017. While Orders granted at the Case Management Conference were formally filed after that date, the Court did not consider the filing of these Orders to significantly advance the Action as they took effect when pronounced and not upon filing. The Court also did not consider collecting records or serving a Notice of Appointment for Questioning on an Affidavit from 2017 to significantly advance the Action.

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