The Defendants appealed the decision of a Master who refused to strike the Action for long delay under Rule 4.33. The Master held that an agreement to mediate made between parties within the three year drop-dead period significantly advanced the Action. Shelley J. reviewed the fundamental principles underlying Rule 4.33, and summarized the factors to be considered in a Rule 4.33 Application. Justice Shelley noted that a functional approach to such Applications is appropriate in light of the culture shift outlined in Hryniak v Mauldin, 2014 SCC 7 (CanLII). Her Ladyship held that an agreement to pursue alternative dispute resolution (ADR) may advance an Action, but only if there is an actual, realistic attempt by both parties to act on that agreement. The parties did not attempt to act on the agreement to pursue ADR in this case, and therefore it did not significantly advance the Action. Likewise, correspondence between the parties did not significantly advance the Action.

Shelley J. also considered whether the Plaintiff’s disclosure of a note under Rule 5.10 materially advanced the Action. Justice Shelley stated that, although Rule 5.10 provides that a party must give notice of new documents found, production of records is a continuing obligation and not a mandatory step that constituted a “thing” which advanced the Action. Rule 5.10 provides for a continuing obligation, rather than discrete procedural steps which reset the clock every time a new document is disclosed. Serving an Amended Affidavit of Records following the provisions in Rule 5.5 is a continuation of the obligations under Rule 5.10(a), and not a new and discrete step required by the Rules. Justice Shelley granted the Appeal and dismissed the Action for long delay.