BRUCE MINTZ PROFESSIONAL CORPORATION v FAIRCLOUGH

This decision arose from an Appeal of an Applications Judge’s dismissal of an Application to strike an Action for long delay pursuant to Rule 4.33(2). The underlying Action concerned a law firm’s claim for unpaid legal fees. The Applications Judge dismissed the delay Application on the basis that additional documents should have been before the Court. On Appeal, those documents were filed as fresh evidence, resulting in a de novo review before the Court of King’s Bench.

Justice Fraser confirmed that where new, relevant, and material evidence is introduced on appeal from an Applications Judge’s decision, the appeal proceeds as a de novo review. The Court commented critically on the continued use of de novo appeals from Applications Judge decisions, observing that the current system permits unsuccessful parties to effectively repair deficiencies in their evidence and relitigate the matter before a Justice of the Court of King’s Bench, thereby increasing costs, delay, and pressure on the court system.

The Court then considered Rule 4.33(2) in light of the foundational purpose provision in Rule 1.2(1). Applying the functional approach articulated in authorities, the Court emphasized that whether a step constitutes a “significant advance” depends on its substance, genuineness, timing, and actual effect on moving the litigation toward resolution. The analysis is fact specific and focuses on whether the step meaningfully advances the action in a timely and cost-effective manner consistent with the objectives of the Rules.

Applying these principles, Fraser J. held that the Plaintiff’s conduct did not amount to a significant advance in the Action. Nearly three years after the last meaningful step, the Plaintiff sent emails attaching partial records and referring to an Affidavit of Records that was neither attached, filed, nor properly served. The Court found that the Affidavit of Records was incomplete, omitted clearly relevant billing documents later relied upon in a Summary Judgment Application, and was not a genuine attempt to move the litigation forward. Justice Fraser concluded that an unfiled and incomplete Affidavit of Records, delivered in an irregular manner after years of inactivity, was inconsistent with the purposes of Rules 1.2 and 4.33 and did not significantly advance the Action.

The Appeal was therefore allowed, and both the Claim and Counterclaim were dismissed pursuant to Rule 4.33 for long delay.