The Applicant applied to dismiss the Action for long delay pursuant to Rules 4.31 and 4.33.

The Court dismissed the Application under Rule 4.33, which requires the Court to dismiss an Action against a party if three or more years have passed without a significant advance in the Action. The Court noted that a significant advance in an Action is sufficient for the purpose of Rule 4.33 and that it is unnecessary to have completed a significant advance as against each Defendant. The Court determined that the Respondent obtaining Judgment against another Defendant constituted a significant advance in the Action.

The Court also dismissed the Application under Rule 4.31, which is discretionary and allows the Court to dismiss an Action for long delay that results in significant prejudice to a party. The Court noted that an Applicant can show significant prejudice by either: (1) proving inordinate and inexcusable delay, in which case the Applicant enjoys a rebuttable presumption of significant prejudice; or (2) proving significant prejudice arising from the delay.

The Court found no significant prejudice arising from delay. The Court was not satisfied that the delay in the Action was inordinate and inexcusable. The Court also determined that the death of one of the Applicant’s potential witnesses did not constitute significant prejudice as there were other witnesses available that could shed light on the issues concerning that witness. The Court therefore determined that there was no prejudice rising to such a level as to require the Court to dismiss the Action under Rule 4.31.