The Appellant (the deceased Ms. Flock, by her litigation representative) in a matrimonial property Action applied to strike her ex-husband’s Statement of Claim for long delay pursuant to Rule 4.33. The Application was dismissed, and the Appellant appealed.

At the Court of Queen’s Bench, the Chambers Judge held that over three years had passed without anything “materially advancing” the Action, and though the Appellant did not expressly consent to a delay, the Appellant had “excused” the delay and had “lulled” opposing counsel into believing the time limit imposed by Rule 4.33 would not be enforced. The Chambers Judge held that striking the Action would mean that the matrimonial property would be inequitably divided.

The Court of Appeal noted that the Chambers Judge did not have the benefit of recent decisions emphasizing that a functional approach should be used to determine whether an Action has been “significantly advanced”, rather than an approach based on formal steps. The Court stated that dismissal on an Action is required after three years of inactivity, except “where the moving party has participated in steps after the expiry of the three years to the extent that it would be unjust to dismiss the action”. The Court also noted that Rule 4.33 is mandatory, not discretionary, and that the Plaintiff is responsible for timely prosecution of its claim. While the Defendant cannot obstruct or purposely delay the Action, it need not actively assist in moving the Plaintiff’s Action along. The Court of Appeal also observed that standstill agreements may be made orally, but cannot be implied; and that, if a party does not take steps to dismiss a Claim under Rule 4.33, and meaningful steps are taken after the three year period, it may lose its ability to have the Action dismissed automatically.

In applying the above principles to the facts, the Court of Appeal found that there was no evidence to suggest that the Appellant had expressly waived the entitlement to rely on Rule 4.33. The Court explained that writing to request that “litigation be put on hold” is not the same as entering into a standstill agreement, and that in any event, the offer was not accepted. Although the Appellant’s counsel did not communicate that the Appellant did not consent to further delay, silence is not agreement, much less an express agreement. The Court also noted that Rule 4.33 must be read in light of Rule 1.2, which states that the Rules are intended to enable more efficient and lest costly resolutions of disputes.

With respect to the Chambers Judge’s consideration of prejudice and the inequitable division of matrimonial property, the Court of Appeal again emphasized that Rule 4.33 mandatorily requires dismissal after three years of inactivity. The Court of Appeal contrasted Rule 4.33 to Rule 4.31 in this regard: Rule 4.31 is a “prejudice-based discretionary delay rule”, while Rule 4.33 is “written in absolute terms”. The Court held that it would not be “just or appropriate” to create an exception to Rule 4.33 when the wording of the Rule, read plainly, does not do so.

The Court of Appeal allowed the Appeal, and struck the Respondent’s Claim for long delay.