FLOCK v FLOCK (ESTATE), 2015 ABQB 671
4.33: Dismissal for long delay
The Defendant died before the conclusion of the matrimonial property Action. The Litigation Representative for the Defendant’s Estate applied to dismiss the matrimonial property Action for long delay pursuant to Rule 4.33. The Defendant’s Estate also sought severance of the joint tenancy of the parties’ matrimonial home, relying on the Matrimonial Property Act, RSA 2000, c M-8 (the “MPA Application”).
The Rule 4.33 Application was filed on December 19, 2014. Justice Marceau determined that the last step which materially advanced the Action was the continued Examination for Discovery of the parties on July 28 and 29, 2009; however, the Defendant subsequently made an offer to the Plaintiff to agree to a delay. While that offer was never agreed to formally, the conduct of the Defendant’s counsel lulled the Plaintiff into believing there would be no proceedings taken to enforce time limits as the parties moved towards mediation, settlement and Trial. Taking into account the time during which the Defendant excused the delay, Justice Marceau held that three years had not passed since the last significant advance in the Action. Further, the MPA Application, in combination with the Rule 4.33 Application, would unfairly disadvantage the Plaintiff if successful: the Plaintiff would not only lose his interest in the property held in the Defendant’s name, but also his half interest in the former matrimonial home. As such, continuation of the matrimonial Action was warranted. The Application to dismiss the Plaintiff’s Action was dismissed.View CanLII Details