The Plaintiff commenced an Action by way of Statement of Claim on November 1, 2010. The Statement of Defence was filed November 24, 2010. The Plaintiff’s Affidavit of Records was not delivered until October 30, 2013 in violation of Rule 5.5(2), which requires service of the Plaintiff’s Affidavit of Records within three months of service of the Statement of Defence. Pursuant to Rule 5.6, the Affidavit of Records stated that the producible records could be inspected at the offices the Plaintiff’s counsel. The Plaintiff failed to make and deliver copies of the producible documents as requested by the Defendant, and the Defendant’s request to attend, inspect and copy the documents in accordance with Rule 5.14 was not accommodated. On February 12, 2014, counsel for the Defendant advised that they would apply for the dismissal of the Action for long delay under Rule 4.33 based on the three-year period of inactivity. Park J. noted that the Defendant failed to produce its Affidavit of Records at all, contrary to Rule 5.5(3); however, this was not a bar to bringing the Application.

Justice Park stated that the purpose of the new Rules was to foster access to justice by promoting timely and cost-effective litigation, particularly through the Rules regarding delay. This purpose is embodied in Rule 1.2, which must be employed as an analytical tool in interpreting and applying Rule 4.33.

The Defendant argued that, although the Plaintiff’s Affidavit of Records was served within the three year period, it did not materially advance the Action. The Defendant contended further that the Affidavit of Records failed to comply with Rule 5.7(2) and did not sufficiently describe bundles of documents. Justice Park held that such an irregularity is a small transgression which is not a matter of concern in an Application under Rule 4.33.

The Defendant also asserted that the Affidavit of Records did not comply with the technical requirements of Rule 5.6(1)(b) which requires disclosure of all records which are relevant and material to the Action. Justice Park held that such a deficiency would only prejudice the Plaintiff in proving particular aspects of its Claim at Trial on account of Rule 5.16 which, prima facie, prevents undisclosed records from being produced at Trial. Furthermore, such an alleged deficiency was mere speculation and insufficient to support an Application under Rule 4.33. In the result, Justice Park held that the Plaintiff’s Affidavit of Records complied with the disclosure requirements set out in Part 5 of the Rules, particularly, the technical requirements set out in Rule 5.6.

The Plaintiff’s Affidavit of Records, being in compliance with the technical requirements under Rule 5.6, was sufficient to trigger Rule 5.1 which describes the substantive purpose of disclosure. The delivery of the Affidavit of Records, therefore, constituted a step that materially advanced the Action. The Defendant’s Application under Rule 4.33 was dismissed.