4.33: Dismissal for long delay

Case Summary

The Defendants were former counsel to the Plaintiff, who had sued for professional negligence after the Plaintiff’s claim was dismissed. The Defendants applied to dismiss the Plaintiff’s claim for long delay pursuant to Rule 4.33. Applications Judge Farrington granted that Application, and the Plaintiff appealed.

On Appeal, Justice Bourque considered whether the matter had been significantly advanced by the conduct of the parties, the provision of a Witness List, and/or the formation of a Litigation Plan.

The Court highlighted that Rule 4.33 deals only with timing, not merits. A decision to dismiss for delay has nothing to do with the strength of the claim. The question is whether, during the alleged period of delay, there was a step that moved the Action forward in an essential way, measured as a step which increases the likelihood that the claim will be resolved.

Justice Bourque summarized the considerations the Court must make to complete a functional “significant advancement” analysis: (a) whether formal steps were taken; (b) whether issues were narrowed; (c) whether steps were taken to complete document or information discovery; (d) whether positions were clarified; (e) the nature, value, quality, genuineness, and timing of purported development; (f) the history and nature of the litigation; and (g) the outcome of the purported advancement.

In light of these considerations, Justice Bourque found that communications between the parties suggesting mediators for an ADR, exchanging a Witness List, and entering a Litigation Plan cannot count as significantly advancing the matter. Rather, Justice Bourque stated that these steps were “extremely minimal in nature, did not include the disclosure of meaningful information, and did not move the parties towards resolution.” Something more was required to be completed pursuant to the communications or Litigation Plan for it to count as a significant step.

The Appeal was therefore dismissed.

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