Veldhuis, Greckol and Pentelechuk JJA

4.33: Dismissal for long delay

Case Summary

The Respondent was involved in two motor vehicle accidents in 2007, and brought two separate Actions against the Appellants in respect of each accident.

The Appellants had successfully applied to dismiss the Actions for long delay before a Master, pursuant to Rule 4.33, but the Respondent was then successful in restoring the Actions on appeal to a Chambers Judge, who held that the parties’ “efforts to consolidate the actions for trial” had significantly advanced the Actions. The Appellants appealed the matter to the Court of Appeal, arguing that the Chambers Judge erred in restoring the Actions. In particular, the Appellants argued that the Chambers Judge failed to apply the “functional approach” in holding that the Action had been significantly advanced.

The Court of Appeal first noted that a Chambers Judge’s Decision regarding whether an Action has been significantly advance in the Action under Rule 4.33 is entitled to deference. It then noted that there is “no hard and fast rule” about what constitutes a significant advance for the purposes of Rule 4.33, given the fact-specific nature of the question. However, the “functional approach” to answering the question requires that the Chambers Judge assess whether a step has moved the Action forward in a meaningful way, “considering its nature, value, importance and quality”, along with the “genuineness and the timing of the step”.

The Court of Appeal found that the Chambers Judge’s decision disclosed a palpable and overriding error. There was a period of three years – between August 6, 2014, and August 11, 2017 – in which “nothing happened …. to move this [A]ction along”. Although the parties had agreed to schedule a mediation, which ultimately did not proceed, doing so did not narrow issues, result in meaningful negotiations, or move the parties towards resolution. As such, the Appeal was allowed.

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