Bast J

1.2: Purpose and intention of these rules
4.31: Application to deal with delay
4.33: Dismissal for long delay
4.34: Stay of proceedings on transfer or transmission of interest

Case Summary

The Plaintiffs appealed from a Master’s decision dismissing their Application under Rule 4.33. The main issue before the Master and on appeal was whether the Action was significantly advanced since the Defendants’ filing of its Statement of Defence on November 29, 2011. One of the Plaintiffs, Stackard, had passed away on December 31, 2011; as such, the Action was automatically stayed under Rule 4.34. Ms. Dorath was appointed personal representative of the Plaintiff’s estate, and she obtained an ex parte Order ending the Stay and permitting the Action to continue under Rule 4.34(2). However, the Order was only served on previous counsel for the Plaintiffs. Justice Bast noted that Rule 4.34(3) requires such an Order to be served on all parties as soon as it is received.

The Defendants brought an Application under Rule 4.33 on July 15, 2015, over three years and seven months since the filing of the Statement of Defence. The Defendants were served with the ex parte Order ending the Stay a month after filing their Rule 4.33 Application. The Master dismissed the Rule 4.33 Application on the grounds that: (1) Ms. Dorath had intended to serve the Order upon all parties; and (2) obtaining the Order was a “required step” under the Rules, which significantly advanced the Action.

Bast J., referring to prior authority, noted that a Stay pursuant to Rule 4.34 does not expressly stop the running of the clock under Rule 4.33. Further, the reference to Rule 4.31 points to the fact that, if a Stay remains in place with no Order to continue the Action, a Defendant may apply for relief under Rule 4.31 notwithstanding the Stay. Bast J. observed that the law with respect to Rule 4.33 had changed recently. Prior leading Court of Appeal authority held that Rule 4.33 requires a functional approach rather than an overemphasis on formalistic steps, and that anything “required by the Rules” does not necessarily significantly advance the Action. Further, the functional approach is consistent with Foundational Rule 1.2.

Consequently, Bast J. held that reliance on the Order as being a “mandatory” step which therefore advanced the action was in error. Lifting the Stay was only required if the Plaintiff Estate wished to continue with the litigation; it was not a mandatory step. Her Ladyship also noted that the step had not even been properly completed. The Appeal was granted and the Plaintiff’s Action was dismissed.

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