The Applicants were the Defendants in two unrelated Actions. In both Actions, the Defendants applied for dismissal for delay under Rule 4.33 or alternatively, under Rule 4.31. The unrelated Actions were brought together because counsel for both Actions were the same and the two Actions proceeded in lockstep with respect to the latter steps taken.

The Court noted that Rule 4.33 provides that the Court must dismiss an Action if three or more years have passed without a significant advance in the Action. The Defendants alleged that responses to undertakings given by the Plaintiffs was the last significant advance in each Action.

The Defendants waited to file the Application until August 13, 2021, which would be three years plus 75 days after the last response to undertakings was received. They allowed for extra days due to Ministerial Order 27/2020. The Court summarized the key provisions of Ministerial Order 27/2020 as follows:

1.                  Limitation periods are suspended in the enactments under Appendix A from March 17, 2020, to June 1, 2020;

2.                  Any period of time within which any step must be taken in any proceeding or intended proceeding is suspended subject to the discretion of the Court, tribunal, or other decision-maker from March 17, 2020, to June 1, 2020; and

3.                  For clarity, the limitation period or period of time resumes running on June 1, 2020 and the temporary suspension period shall not be counted.

The Defendants stated that the second paragraph was operative because the time period of three years in Rule 4.33 is not a limitation period. The Court noted that the Court of Appeal has stated that “Rule 4.33 functions like a limitations period”. However, the Court did not decide if Rule 4.33 creates a “limitation period” because the second paragraph states that any period of time is suspended, subject to the discretion of the Court. This means that while the Court has discretion to take away the suspension, the starting point is that a suspension is available. In the circumstances, there was no compelling reason to exercise discretion to take away the 75-day suspension under the second paragraph of Ministerial Order 27/2020.

The Plaintiffs argued that a procedural Order approving a Litigation Plan in the first Action was a significant advance in the Action. The Court found that the procedural Order did not significantly advance the Action considering its nature, value, importance, and quality. It was apparent that the procedural Order was not required to advance the litigation and that the Defendants were the ones who repeatedly tried to move the Action forward while the Plaintiffs did not respond.

The first Action was dismissed for delay pursuant to Rule 4.33.

The Plaintiffs argued that a procedural Order approving a Litigation Plan in the second Action was a significant advance in the Action. Additionally, the Plaintiffs argued that they were unable to file an expert report until the Defendants scheduled additional Questioning. Again, the Court found that this was not a significant advance of the Action. As in the first Action, the Defendants were the ones who were most active in attempting forward the Action. The Defendants also made an offer of settlement to which the Plaintiffs did not responded.

The Court asked counsel to provide written submissions on Rule 4.34 because one of the personal representatives of the Plaintiff’s estate in the second Action had died. Rule 4.34 stays proceedings when an Action is transferred to another person upon death. The Court found that Rule 4.34 does not prevent a Rule 4.33 Application nor does the period of stay count under a Rule 4.33 Application.

The second Action was also dismissed for delay pursuant to Rule 4.33.