MCLEOD v MCLEOD

The Appellants commenced an Action in 2013 against their son alleging unlawful transfer of equipment and seeking a Replevin Order or damages. The Action was dismissed under Rule 4.33 for failure to significantly advance the proceeding and an Appeal was brought further to the dismissal.

The only issue was whether a July 2019 letter from the Appellants’ former counsel to the Respondent’s counsel, sent to comply with a May 2019 Consent Order, constituted a significant advance. The letter provided records to the Registrar of Motor Vehicles and stated that counsel was seeking instructions regarding a Judicial Dispute Resolution (“JDR”). The Respondent did not dispute characterizing the Consent Order as a significant advance but rather the parties disagreed on whether the provisions of the documents in compliance with the Consent Order, significantly advanced the Action.

The Court upheld the decisions of the Applications Judge and Chambers Justice, to find that this step did not significantly advance the Action. The Court found that the documents provided were duplicative of records already exchanged years earlier, no new information was obtained, and no further steps (including the proposed JDR) were taken. Mere compliance with a Consent Order, even if mandated, the Court held, does not automatically qualify as a significant advance.

Applying the functional, qualitative test under Rule 4.33, the Court confirmed that the focus is on whether the step meaningfully, substantially, and significantly advanced the matter toward resolution or trial in a functional way, not on its procedural form. The Court finally held that the Chambers Justice’s conclusion that the Action was not significantly advanced was entitled to deference, and no reviewable error was shown.

The Appeal was therefore dismissed.