4.33: Dismissal for long delay

Case Summary

The Plaintiff applied to have his Claim certified as a Class Action to represent all investors who purchased units in a limited partnership which was formed to purchase and sell real property. The Defendant applied to have the Claims dismissed for long delay pursuant to Rule 4.33. Justice Martin noted that although the new Rules changed the language from “material” to “significant” advance, there was no substantive difference. Pursuant to Rule 4.33, the relevant period is three years prior to the date of the Application for dismissal. Her Ladyship observed that a number of events had taken place during the relevant time, but the key issue was whether they were significant within the meaning of Rule 4.33.

Justice Martin noted that recent case law sets out a functional approach that focuses on the substance of the steps taken. Martin J. held that there had been a number of significant advances in the Action, including the appointment of a Case Management Justice and regular Case Management meetings. In addition, Affidavits had been filed and Questioning on the Affidavits was conducted which led to an Application to compel answers to several contested Undertakings.

Martin J. rejected the Defendant’s argument that steps taken to advance the matter to the Certification Hearing do not advance the Action itself within the meaning of Rule 4.33. The Rules are intended to apply to Class Actions wherever possible. The advancement of a potential Class Proceeding to the Certification Hearing constitutes advancement for the purposes of Rule 4.33, as it defines the nature of the Action and informs the parties of how a matter is going to proceed.

The Plaintiff’s Application to proceed as a Class Action was granted and the Defendant’s Application to dismiss for long delay was denied.

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