4.33: Dismissal for long delay
15.4: Dismissal for long delay: bridging provision

Case Summary

The Appellant appealed an Order dismissing his Action for long delay pursuant to Rule 4.33. Because the Appellant was unable to attend at oral argument in Court, the parties agreed that the Appeal should be decided based on written arguments only.

The Court of Appeal noted that the Application to dismiss the Appellant’s claim for long delay was originally denied in Master’s Chambers, based on evidence that the parties had entered into a standstill agreement through email. That decision was appealed and heard by a Justice of the Court of Queen’s Bench, at which time evidence was introduced denying the existence of a standstill agreement, either “in writing” as required pursuant to Rule 4.33(5), or at all. At the Court of Queen’s Bench, the Appellant had also alleged that she had filed some Court documents during the three-year period, but not served them on the Respondent. However, it appeared that the documents she adduced had not actually been filed, as they contained “irregular” Clerk’s stamps, and the Clerks had no record of the documents being filed. The Queen’s Bench Justice therefore held that the Action was not significantly advanced for three years, and dismissed it for long delay. That decision was appealed to the Court of Appeal.

Before the Court of Appeal, the Appellant argued that the Queen’s Bench Justice did not read Rule 4.33 within the broader purpose of the Rules. She also argued that Rule 4.33 was incorrectly applied retroactively. The Court of Appeal disagreed with her interpretation, and noted that Rule 4.33 was designed to “bring an end to litigation that is not being prosecuted in a timely way”. Pursuant to the transitional Rule 15.4, which has since been repealed, the implementation of a three year “drop dead” period began on November 1, 2010. The Action had been ongoing for 11 years, and no steps were taken to significantly advance it between March 2012 and March 2015. As such, the Queen’s Bench Justice properly dismissed the Action for long delay.

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