The Applicant appealed a Decision which held that the Respondent’s Affidavit of Records significantly advanced the Action for the purposes of Rule 4.33. Rowbotham J.A., for the majority, discussed the purposes of Rule 4.33 and observed that a purposive approach should be taken when determining applications under Rule 4.33, in keeping with the foundational principles underlying the Rules of Court, particularly in Rule 1.2. Rowbotham J.A. stated that Courts must look at whether or not the substance of the step taken advances the Action, and that this same analysis should be made whether or not the step is mandated by the Rules of Court. Justice Rowbotham reviewed the distinction between Rule 4.31 and Rule 4.33, stating that Rule 4.31 can be triggered by prejudice whereas Rule 4.33 acts as a sort of limitations period and is there to terminate Actions that have “truly died”. The Court cautioned that a step taken under the Rules, such as serving an Affidavit of Records, will not automatically significantly advance actions for the purpose of Rule 4.33.

Rowbotham J.A. held that, although many of the documents produced in the Affidavit of Records were records that the Applicant already had in its possession, one element of Rule 5.6(2)(e) is that a party must certify that it has no other documents, which confirms that the opposing party is aware of the extent of the party’s production, and ensures that there are no “surprise” documents that arise later in the litigation. Further, Rule 5.5 requires that the parties make admissions about the validity and authenticity of the documents in an Affidavit of Records. When a party includes the opposing party’s documents in their Affidavit of Records, it is admitting to their authenticity.

The Appeal was dismissed and the Court ordered that the Respondent file a further and better Affidavit of Records, and that they serve the Applicant with a Litigation Plan in accordance with Rule 4.4(2).

In dissent, Wakeling J.A. noted that there is a line dividing acceptable and unacceptable delay by a party, and that the Respondent’s delay in serving its Affidavit of Records was unacceptable. Wakeling J.A. stated that the Court should not have tolerance for plaintiffs who do not advance their actions in a timely and consistent manner, and that Courts should become involved with these actions by way of Litigation Plans in order to move actions along. To emphasize this, Wakeling J.A. cited Rule 4.1, which provides that the parties are responsible for managing their dispute and planning its resolution in a timely and cost-effective way; Rule 4.3, which categorizes types of Court Actions; Rules 4.4 and 4.5, which delineate between standard case obligations and complex case obligations; Rule 4.8, which provides that a Court may direct how a case is to be categorized; and Rule 4.6, which provides that a prudent Plaintiff may ask the Court to grant an Order settling disputes about complex Litigation Plans. Wakeling J.A. did not find the Respondent to be a reasonably diligent Plaintiff and would have allowed the Appeal.