Berger, Martin and Rowbotham JJA

4.33: Dismissal for long delay
15.3: Dispute resolution requirements

Case Summary

The Plaintiff appealed a Decision which struck her Action for long delay. The Plaintiff’s Action was commenced in 2004, and Questioning took place in May 2009. In October 2011, the Plaintiff’s counsel produced a copy of a written note which had not been produced earlier due to inadvertence. In November 2011, Plaintiff’s counsel confirmed with the Court that the parties had agreed to attend Judicial Dispute Resolution (“JDR”); however, none of the parties’ agreed dates were available from the Court, and no further attempt was made to schedule a JDR. In June 2014, the Defendants applied to dismiss the Plaintiff’s Claim under Rule 4.33. A Master held that disclosure of the written note did not significantly advance the Action, but the agreement to participate in the JDR did. The Defendants appealed. The Justice held that the last significant advance in the Action was Questioning which occurred more than 3 years before the Application to dismiss for long delay. The Plaintiff then appealed.

The Court of Appeal confirmed that the delay Rules apply a functional approach, which require determining whether a particular step significantly advanced the Action by moving the Action forward in a “meaningful way considering its nature, value, importance and quality”. A Court is also to look at the genuineness and timing of the step at issue. The emphasis is on substance, not form. The Court of Appeal held that the agreement to have a JDR, and subsequent correspondence with the booking Coordinator, constituted nothing more than a failed attempt at scheduling the JDR which did not materially advance the Action. The Court rejected the Plaintiff’s assertion that agreeing to participate in an alternative dispute resolution (“ADR”) process significantly advanced the Action because it is a mandatory step required by the Rules. Because the Court’s analysis is one of substance, not form, even taking mandatory steps imposed by the Rules does not necessarily significantly advance the Action for the purposes of Rule 4.33. Secondly, because Questioning took place before November 2010, Rule 15.3 operated to make Rules 4.16 and 8.4 (which require some form of ADR before a Trial date could be requested) inapplicable.

With respect to the production of the written note, the Court held that its contents had already been extensively covered in Questioning. It therefore could not be said to have narrowed the issues in dispute or moved the matter closer to resolution. Accordingly, it did not significantly advance the Action. The Appeal was dismissed.

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