Master Smart

4.31: Application to deal with delay
4.33: Dismissal for long delay

Case Summary

The Defendants applied to dismiss the Plaintiff’s Action pursuant to Rules 4.31 and 4.33. The personal injuries giving rise to the claims occurred in 2005, the Statement of Claim was filed in 2007 and was served on the Defendants in 2008. The Plaintiff served her Affidavit of Records in 2016.

Master Smart considered Rules 4.31(1) and 4.31(2), and the progress of the Action from the beginning to the date that the Application was made. Master Smart noted that nothing had occurred to advance the Action for long periods during the litigation. The Plaintiff argued that she had an excuse for the delays, and had made efforts to obtain medical records from physicians and clinics the results of which were then provided to the Defendants. Master Smart observed that the letters to the physicians and clinics only referenced injuries that arose out of later accidents. Master Smart also found that the Plaintiff had provided a number of medical records to the Defendants without any attempt to review their relevance and materiality. The delays were therefore inexcusable. Master Smart stated that Rule 4.31 presumes that there has been prejudice to the Defendants when there is inordinate and inexcusable delay, noting that the individual Defendant driver had passed away, and that there would be difficulty locating witnesses. Master Smart also remarked that Questioning had not yet begun and that a Trial would still be a number of years away. Though the presumption of prejudice can be rebutted, Master Smart held that the Plaintiff had provided no evidence to rebut the presumption.

Master Smart considered Rule 4.33 which stipulates that if three or more years have passed without a significant advance in an Action, the Court must dismiss the Action. The Plaintiff argued that serving the Affidavit of Records in 2016 was a significant advance in the litigation, however Master Smart stated that the authorities are clear that the performance of a mandatory task under the Rules does not, in and of itself, constitute a significant advance in the Action. The Court must adopt a functional approach. Master Smart determined that the activities of the Plaintiff over the previous three years, including service of the Affidavit of Records, was not sufficient to have significantly advanced the Action.

Master Smart therefore granted the Application dismissing the Action pursuant to Rule 4.33, and held that the Action would have also been dismissed under Rule 4.31.

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