paperny, rowbotham AND MCDONALD jJA

1.2: Purpose and intention of these rules
4.31: Application to deal with delay
4.33: Dismissal for long delay
5.22: Questioning options
5.28: Written questions
5.29: Acknowledgment of corporate witness’s evidence
15.15: Coming into force
15.4: Dismissal for long delay: bridging provision

Case Summary

The Action was commenced in 2002. In May 2009, the Defendant provided Answers to Undertakings given at Questioning. In August 2013, the Plaintiff sent the Defendant a Notice of Written Questioning and copies of documents listed in the Appellant’s Affidavit of Records in electronic format. On August 30, 2013, the Plaintiff served a Supplemental Affidavit of Records. On November 4, 2013, the Defendant filed an Application to Dismiss for Long Delay. The Chambers Judge found that the last step which significantly advanced the Action was the Response to Undertakings in May 2009. Accordingly, the Action was dismissed under Rule 4.33. The Chambers Judge also held that the delay in the Action was inordinate and inexcusable such that significant prejudice could be presumed, warranting dismissing the Action under Rule 4.31. The Plaintiff appealed.

The Plaintiff argued that the Chambers Judge erred in applying Rule 4.33 rather than Transitional Rule 15.4. The Court of Appeal held that because Rule 4.33 came into force before the Defendant brought its Application to Dismiss for Long Delay that Rule 4.33 applied. The Court of Appeal considered the Plaintiff’s argument that the Chambers Judge misapplied the test for long delay, and held that a Chambers Judge’s conclusion with respect to whether a step has significantly advanced an Action is entitled to deference. The Court noted that the consideration of whether a step advances an Action involves a functional analysis as to the nature, quality, genuineness, timing, and outcome of the step taken. The Plaintiff also asserted that the Defendant had failed to advance its Counterclaim, and this inaction negated the Plaintiff’s failure to take any steps in its own Action. The Court of Appeal held that, notwithstanding Rule 1.2, a Plaintiff bears the ultimate responsibility for prosecuting its Claim. The Defendant’s failure to move the litigation forward did not excuse the Plaintiff’s inaction.

The Plaintiff had Questioned an employee of the Respondent in 2008. In August 2013, the Plaintiff served a Notice of Written Questioning pursuant to Rules 5.22 and 5.29, appending 258 questions and the employee’s answers. The Notice requested that the Defendant acknowledge that the evidence of the employee to those questions formed some of the information of the Respondent. The Chambers Judge concluded that the Notice was similar to a Notice to Admit Facts, and without an acknowledgement, it did not significantly advance the Action. Rule 5.29 states that evidence given by a corporate witness may not be read in as evidence at Trial unless a corporate representative under oath acknowledges that the evidence forms the information of the corporation. A corporation may refuse to acknowledge some or all of the evidence given by a witness pursuant to Rule 5.29(2). Rule 5.29 does not impose a time limit for acknowledgement or the consequences for the failure to acknowledge.

As a result, the Court of Appeal held that the Chambers Judge did not err in likening the Notice of Written Questioning and request for acknowledgement to a Notice to Admit Facts. It is not the Notice to Admit that significantly advances the Action, it is the admission, or unreasonable refusal to admit, or a lapse of time with no reply which constitutes the advancement of the Action. In the result, the Appeal was dismissed.

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