4.33: Dismissal for long delay

Case Summary

The Defendants applied to dismiss the Plaintiff’s Statement of Claim under Rule 4.33 on the basis that there had been no significant advance in the Action for three years. The Plaintiffs admitted that there had been no significant advancement in the Action for three years, but argued that there had been significant advancements in a related Action during the period.

Master Smart considered Rule 4.33 and explained that under Rule 4.33(2), if the Plaintiff has not significantly advanced an Action for three years, then the Court must dismiss the Action unless certain exceptions are met. One of the exceptions is that a significant advance in a separate but related Action may constitute a significant advance in the Action in which the Rule 4.33 Application is brought. The primary consideration is determining whether the Actions are inextricably linked.

Master Smart stated that, in determining whether the Actions are inextricably linked, the Court considers four factors: i) whether the two Actions are inextricably linked in the sense that the result in the related Action would be “legally or factually determinative” of the issues in the primary Action; ii) whether the issue determined in the related Action is “relevant and binding” in the primary Action; iii) whether the related Action materially advanced the primary Action; and iv) whether the decision in the related Action could be a “barrier in law” to the Court’s adjudicating the primary Action.

Master Smart held that, while the two Actions were clearly related, a finding that two Actions were “inextricably linked” was dependent on the determination that the second Action will have a legal or factual impact on the issues in the primary Action. The Court should also consider whether the determination of the issues in the secondary Action will be relevant and binding on the primary Action. Further, a determination of whether liens were valid in the secondary Action would factually impact the determination of whether breaches occurred in the primary Action. As such, the Actions were inextricably linked.

Since the Actions were inextricably linked, Master Smart held that filing a Statement of Defence, bringing an Application, and adding Third Party Defendants in the secondary Action constituted significant advances in the primary Action such that it should not be dismissed. The Application was denied.

View CanLII Details