The Defendants appealed a Decision to dismiss their Application to strike the Action for long delay pursuant to Rule 4.33. Over time, the Plaintiff had granted repeated courtesies to the Defendants in extending the agreed deadline to produce their Affidavit of Records. The Defendants did not serve their Affidavit of Records but brought an Application to strike instead.

The Court of Appeal stated that the purpose of Rule 4.33 is to end Actions that have become inactive and should be deemed to be abandoned. The Rule was not intended encourage an ambush by a party who is in default of the Rules and their undertakings after numerous courtesies by the other party. An agreement between counsel may be sufficient to advance an Action depending on the facts and circumstances. Here, it was not unreasonable for Plaintiff’s counsel to rely on the repeated excuses advanced by Defendants’ counsel. The Appeal was dismissed.