master schulz

4.33: Dismissal for long delay

Case Summary

The Defendants applied to dismiss an Action pursuant to Rule 4.33. The Statement of Claim was served on July 25, 2011 under a cover letter stating that the writer would be on vacation until August 16, 2011, and therefore a Statement of Defence would not be required until September 2, 2011. On July 29, 2011, defence counsel responded stating, inter alia, “we request that you do not take any further steps regarding this matter without written notice to us”. Nothing further happened in the Action until a letter was sent by Plaintiff’s counsel dated July 24, 2014 requiring that a Statement of Defence be served on or before August 1, 2014. The Defendant then filed an Application to dismiss the Action pursuant to Rule 4.33.

Master Schulz stated that Rule 4.33 functions similarly to the prior Rule, and that a significant advance is required. Master Schulz noted that “a significant advance must be viewed in the context of the real issues in dispute and the advance must be relevant to the issues in the sense that it adds something new”. The Court determined that the letter of July 24, 2014 did not qualify as a significant advance under Rule 4.33. Master Schulz also held that the facts in this case established that correspondence from Plaintiff’s counsel extending the time for filing the Statement of Defence operated as a stand-still agreement for the period up to and including September 2, 2011.

In the result, the Defendant’s Application was dismissed. However, the Court made a procedural Order under Rule 4.33(2) directing that a Statement of Defence be filed within three weeks from the date of the Decision, and that counsel agree upon and file a Litigation Plan within four weeks of filing of the Statement of Defence.

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