SUNDER BUILDING SUPPLIES LTD v 7TH AVENUE SKY PROPERTY INC

The Court of Appeal affirmed a Chambers Judge’s decision to dismiss an Action for long delay, pursuant to Rule 4.33. The Appellant appealed on the basis that the Chambers Judge erred in applying Rule 4.33.

The Appellant filed a Statement of Claim in October 2017, followed by an Application and supporting Affidavit to have its associated lien declared valid and obtain judgment. The Appellant’s deponent was questioned on their Affidavit in September 2019. The Application was then adjourned sine die to allow the Respondent time to file an Affidavit in response. The Respondent made repeated commitments that it would file an Affidavit, but no Affidavit was ever filed. The Appellant threatened to bring an Application to set a Litigation Plan, but never did. In March 2023, the Appellant brought an Application for judgment, and the Respondent cross-applied for dismissal on the basis of long delay. The Application for dismissal was granted, which decision was then appealed.

Considering Rule 4.33, the Court held that the Chambers Judge made no reviewable error in finding that more than three years had passed without a significant advance in the Action. The Court confirmed that the inquiry as to whether a significant advance had occurred was functional and contextual.

The Appellant argued that the ongoing communication regarding the Affidavit significantly advanced the Action. However, the Chambers Judge reasonably found that it was apparent the Affidavit was never going be filed and that it was incumbent on the Appellant to take steps to enforce the undertaking or otherwise advance the Action. While the Court noted that the Respondent’s counsel could have been more forthcoming, the Chambers Judge’s findings were entitled to deference.

Under Rule 4.33(2)(b), the Court held that the Chambers Judge made no reviewable error in concluding that the Respondent had not participated in the Action in a manner warranting its continuation. The Court emphasized that the application of Rule 4.33(2)(b) is largely discretionary and is subject to deference.

Under Rule 4.33(5), the Court upheld the Chamber Judge’s finding that there was no written agreement suspending the running of the three-year period. While the parties had discussions regarding settlement and future litigation steps, this was insufficient to satisfy the Rule’s requirement for a written suspension agreement.