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Civil Litigation - Civil procedure - Disposition without trial - Dismissal of action - Delay or failure to prosecute

Thursday, March 30, 2017 @ 8:00 PM  


Appeal by the defendant, the litigation representative of the wife’s estate, from refusal to strike a matrimonial property claim issued by her ex-husband. The parties married in 1982, separated in 1996, and divorced in 1999. The husband’s original matrimonial property action remained unresolved. After the wife’s death in July 2014, the husband filed a proof of death with the registrar of land titles. The wife’s estate applied to sever the joint tenancy in the matrimonial home and brought an application to terminate co-ownership. The wife sought dismissal of the husband’s original matrimonial property action pursuant to Rule 4.33 on the basis of undue delay. The chambers judge refused the relief sought. Although three years had passed since the last significant advancement of the action through examinations for discovery, the wife’s counsel had acquiesced in the delay by leading the husband’s counsel to believe no steps would be taken to enforce time limits while the matter moved toward settlement. Continuation of the matrimonial action was warranted to ensure the husband received an equitable division of property now held in the wife’s name. The wife’s estate appealed.

HELD: Appeal allowed. The chambers judge did not have the benefit of the recent Court of Appeal Ro-Dar decision outlining the governing principles of a Rule 4.33 application. Communications surrounding mediation and settlement did not amount to a formal standstill agreement. Nothing in the evidence supported an inference the wife’s estate had expressly waived legal entitlement to rely upon Rule 4.33, or acquiesced in further delay after mediation failed in February 2013. There was no duty to expressly advise non-acquiescence to delay. To import such a requirement under Rule 4.33 constituted a reversible error. Rule 4.33 was mandatory in nature, with the presence or absence of prejudice to the husband irrelevant to its operation. Any prejudice to the husband was appropriately assessed in the joint tenancy severance application. The correct interpretation and application of Rule 4.33 compelled dismissal of the husband’s action.