The Applicant applied to dismiss an Originating Application for delay pursuant to Rule 4.33, which requires a Court to dismiss an Action if there has been no significant advance for three years or more.

The Respondent had filed the Originating Application for leave to appeal two municipal taxation decisions on September 9, 2016. The Respondent requested dates that the Applicant’s counsel was available for the hearing of the Originating Application on November 16, 2017. The Applicant’s counsel stated that their schedule was booked for a year. No further steps were taken until the Respondent requested available dates from the Applicant’s counsel again on September 25, 2019.

The Court granted the Application and dismissed the Action pursuant to Rule 4.33. Master Farrington determined that requesting available hearing dates was not a significant advance. The Court noted that some cases have denied a party success on a Rule 4.33 Application based upon the applying party’s conduct. However, Master Farrington held that the Applicant’s conduct did not rise to a level capable of denying the Application. The Court also declined to impose a suspension period under Rule 4.33(9) retroactively.