4.31: Application to deal with delay
4.33: Dismissal for long delay

Case Summary

Master Robertson considered two Applications to dismiss two actions (the “Actions”) started in 2009 and 2010 for delay pursuant to Rules 4.31 and 4.33 (the “Applications”). The Actions had been subject to numerous delays including two that approached the three year limit contemplated under Rule 4.33. On the eve of a three year anniversary with no steps having been taken, the Plaintiffs served answers to Undertakings to extend the proceedings. Nearly three years after that when no further advances had been made, the Plaintiffs served a Notice to Attend for Questioning and a proposed litigation plan on the Defendants. The Defendants then brought these Applications, though it is notable that these Applications were filed before the three-year “drop dead” date, but they were scheduled to be heard after the drop-dead date had passed.

The issues before were the Court were whether the filing of the Applications actually saved the Actions from a Rule 4.33 given that they were filed prematurely, and if so, whether the Actions could still be dismissed pursuant to Rule 4.31 because the delay was “inordinate and inexcusable.”

With regards to Rule 4.33, Master Robertson surveyed previous case law establishing that the passage of time is “frozen” once an Application for dismissal is filed. This is because no party should be expected to do anything further before a dismissal Application is heard and decided. Therefore, ironically, the Defendants’ Applications for dismissal under Rule 4.33 actually saved the Actions under that Rule because they had the effect of stopping the passage of time and they were filed before three years had passed since the Actions were last advanced.

However, Master Robertson still assessed whether the Actions could be dismissed under Rule 4.31 which, in contrast to Rule 4.33, is discretionary in nature. Rule 4.31 allows the Court to dismiss an Action if delay has caused “significant prejudice.” Significant prejudice is presumed where the delay has been “inordinate and inexcusable.”

The delay in this case was obviously inordinate and inexcusable. Since 2012, there were two delays of nearly three years until the Plaintiffs did something clearly to avoid a mandatory dismissal. Moreover, the second delay would have exceeded three years but for the Defendants’ premature filing of these Applications. Furthermore, there was some evidence of actual prejudice. Master Robertson noted that the Actions were not simply “documents” cases; they would require the testimony of witnesses. Three witnesses had died since the Actions were filed while others surely would have faded memories. This would clearly hamper cross-examination.

The Applications were both allowed and the Actions were dismissed pursuant to Rule 4.31.

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