Executive Summary: Key Legal and Evidentiary Issues

• The central issue was whether the provision of answers to undertakings by both parties amounted to significant advances under the long delay rule (King’s Bench Rules, r 24.02(1)).

• The motion judge did not consider the defendant’s conduct after receiving the plaintiff’s undertakings, including a delay before moving for dismissal.

• The motion judge failed to assess whether the defendant’s own answers to undertakings constituted a significant advance in the action.

• Errors arose from the motion judge’s failure to properly apply the functional test by overlooking relevant factors and evidence.

• The motion judge treated the appeal as a “de novo” hearing and did not give appropriate weight to the senior associate judge’s reasons.

• The Court of Appeal found legal errors warranting intervention and reinstated the senior associate judge’s decision declining dismissal for delay.

Facts of the case

Kevin Hradowy brought an action against Magellan Aerospace Limited claiming damages for the alleged constructive dismissal of his employment. The litigation became focused on whether the action should be dismissed for delay under Manitoba’s King’s Bench Rules, r 24.02(1), which requires dismissal if there has not been a significant advance in the action for three or more years unless exceptions apply.

The examinations for discovery of both parties were completed by November 22, 2019. The plaintiff provided answers to undertakings in February 2022, and the defendant provided its answers in March 2022. On November 24, 2022, the defendant filed a motion to dismiss the action for long delay, asserting that no significant advance had occurred within the preceding three years. At that time, while the plaintiff had begun preparing a pre-trial conference brief, he had not yet set a pre-trial conference. Additionally, both parties participated in proceedings before the Workers Compensation Board, where the plaintiff sought reconsideration of the Board’s earlier denial of his claim for benefits related to the alleged constructive dismissal. The Board denied this request on September 23, 2022.

Outcome of the decisions

The senior associate judge determined that the provision of answers to undertakings by both the plaintiff and the defendant constituted significant advances in the action and dismissed the defendant’s motion for dismissal. The motion judge, on appeal, reversed this finding, concluding that no significant advance had occurred during the relevant period.

The Court of Appeal found that the motion judge made two legal errors in applying the functional test. First, the judge failed to consider the defendant’s conduct, including its letter of March 11, 2022, in which it acknowledged receipt of the plaintiff’s undertakings and stated it would advise if additional information was needed, but then waited over eight months to move for dismissal without requesting anything further. Second, the motion judge failed to assess whether the defendant’s own answers to undertakings represented a significant advance. The appellate court concluded these omissions amounted to legal errors justifying appellate intervention.

The Court of Appeal allowed the plaintiff’s appeal, set aside the motion judge’s order, and dismissed the defendant’s motion for dismissal for delay. The senior associate judge’s analysis was endorsed and adopted. The plaintiff was awarded costs in both the Court of Appeal and the court below.

The specific monetary amount of costs awarded is not stated in the decision.