The Plaintiffs applied for a Procedural Order to set timelines in the Action. The Defendant counter-applied for an Order striking the Action due to long delay, pursuant to Rules 4.31, 4.33, and 15.4. The last step that had materially advanced the Action was an April 26, 2006 Examination for Discovery. The Parties had agreed to adjourn the date for the present Application to a date in May 2011, which was outside 5 years from April 26, 2006, but it was agreed that such adjournment “would not be used to dismiss the Action pursuant to Rule 4.33…”.

Master Laycock indicated that the prerequisites of Rule 4.33 [and, necessarily, Rule 15.4] had not been met because, had the Application been heard as originally scheduled (on April 21, 2011), the Court would have ordered a Rule 4.4(2) Procedural Order within the permissible time period, and such Order would have been a “thing” that materially advanced the Action:   

The completion of a litigation plan pursuant to rule 4.4(2) would be a permitted step in a proceeding and the completion of such a plan may have the effect of materially advancing an action, particularly an action that has stalled.

The Court rejected the Defendant’s Rule 4.31 argument, suggesting that the Defendant had provided the Court with insufficient evidence to prove that the Defendant had suffered prejudice by delay in the Action. Master Laycock granted the Rule 4.4(2) Procedural Order, which required subsequent steps in the Action to be completed within a compressed timeline.