The Defendants applied to dismiss the Claim against them for long delay, pursuant to Rule 4.33. The Plaintiff, Slovak, argued that it had been less than three years since the Action was significantly advanced, and alternatively as provided by Rule 4.33(2)(b), the Defendants had participated in proceedings since the delay such that the Action should continue.

The Action began in May, 2012, and Questioning occurred on September 16, 2013. After Questioning, counsel communicated occasionally by letter, phone, and email about potential settlement. Then, shortly before September 16, 2016 (three years after Questioning had occurred), there was further communication between counsel, including the provision of a document that the Plaintiff had undertaken to produce three years prior. That document did not contain new information. Master Robertson held that the communication between counsel prior to September 16, 2016, did not significantly advance the Action. The information provided was not new or consequential.

Slovak argued that the term “proceeding” should be interpreted broadly to include the communications, because it is not defined in the Rules. Master Robertson noted that the word “proceedings” was not defined in the Rules, and held that counsel had not “participated” in any “proceedings” as contemplated in Rules 4.31(2)(b) and 4.33, when they communicated about settlement after the three-year period had passed. The word “proceedings”, in this context, should be interpreted to refer to activity that significantly advances the Action which did not occur in this case.

Master Robertson considered whether it was appropriate for Slovak to swear an Affidavit in response to the Application. The Defendants argued that Slovak did not have personal knowledge of the steps that were taken by his counsel. Master Robertson noted that Rule 13.18 allows an Affidavit to be sworn on the basis of belief; only sub-rule 13.18(3), which refers to Affidavits “used in support of an application that may dispose of all or part of a claim” requires personal knowledge. As such, Slovak was an appropriate deponent.

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