By Ian Carruthers and Noel Harper
DISCLAIMER: This blog is intended to inform the reader about how the law was applied in a particular case. It should not be taken as advice regarding the outcome of any other case, even one that may have similar facts. The Court’s decision will depend on the facts of each case. Please call 1-844-210-9511 or visit carrutherslaw.ca if you would like to know more about your specific case.
Welcome back to In This Case. We hope you had a relaxing and enjoyable summer. The next topic we are going to be exploring is Rule 4.33, also known as the ‘drop dead’ rule – which states that if a claim does not materially advance in a period of three years, the court must dismiss it – and whether certain steps taken by either party in a specific case materially advanced the claim at hand or not. Here are the details of our first example:
The plaintiffs commenced the action on June 24, 2010. Upon hearing the Rule 4.33 application of this case nearly a decade later, the Court found that the most recent significant advance of the action occurred on March 8, 2016, when the defendant delivered their responses to written interrogatories. At issue was determining when the next significant action took place.
Between March 8, 2016, and November 2017, the litigation was inactive. During this period, the plaintiff’s counsel asked the defendants about their contemplated records production application and the remaining pre-trial preparation that needed to be done from their perspective. The defendants asked about a settlement offer in November 2016, but the plaintiffs did not respond.
On November 21, 2017, the plaintiffs applied for a trial date, and on December 6, 2017, the defendants applied for records production, restarting litigation activity after a significant delay. The defendant’s records production application was moved to the special list in Master’s Chambers, and the plaintiff appealed this decision, which was dismissed.
The defendants brought several applications to compel the plaintiff to appear for cross-examination. The plaintiff then appealed a costs order against her. There were periodic settlement overtures between December of 2017 and March of 2018.
On April 11, 2019, counsel for the defendants filed an application to dismiss the action for delay.
Come back on Friday for the solution and a brief explanation of the case in question.