The Applicants applied to dismiss the Action for long delay pursuant to Rule 4.33. Alternatively, they sought partial Summary Judgment pursuant to Rule 7.3 respecting portions of the claim against it, which it argued were time-barred by operation of the Limitations Act, RSA 2000, c L-12.

The Action was commenced in June 2011 and amended in January 2012. The Applicants argued that no significant advances had occurred in the Action since June 25, 2013, when a Supplemental Affidavit of Records was filed. The Respondent argued that the Action was significantly advanced in January 2015, when it provided an index of invoices (the “Index”) to the Applicants, and October 2015, when additional Supplemental Affidavits of Records were filed.

Master Smart first noted that the Court should take a “functional approach” to determining whether a significant advance has occurred. In assessing whether the provision of the Index constituted a significant advance, the Master noted that the it was not prepared with the assistance of an expert, and while it could be of assistance in providing a concise summary of documents, “no settlement discussions or questioning took place so its value in those respects might be said to have yet to materialize”. However, the Supplemental Affidavit of Records filed in October 2015 contained relevant and material records and addressed important outstanding issues in the Action, especially when it was assessed in conjunction with the Index. As such, Master Smart concluded that the provision of the additional Supplementary Affidavit of Records significant advanced the Action, and the Application pursuant to Rule 4.33 was dismissed.

With respect to the issue of limitations, the Applicants argued that the limitation period had expired respecting outstanding balances on 95 of the 103 invoices in issue. The invoices stated that they were due 30 days from their date, and while the Respondent argued that it had an implied arrangement allowing late payment, it furnished no evidence to support its position. Master Smart agreed and dismissed the Respondent’s claims with respect to 95 of the 103 invoices it furnished, but did not dismiss the Action as a whole. Given the parties’ mixed success, the Master held that they should bare their own Costs.