4.33: Dismissal for long delay
12.36: Advance payment of costs

Case Summary

The Appellant appealed a special chambers Order dismissing his Application to have the Respondent’s distribution of matrimonial property claim dismissed for long delay under Rule 4.33, and granting the Respondent’s Application for advance Costs for litigation to be held in trust. The Respondent filed a Statement of Claim for divorce and division of matrimonial property on February 11, 2015. The Parties exchanged Affidavits of Record on in December 2018. The Parties were granted a divorce judgment on March 14, 2019. The divorce was severed from the claim for corollary relief. The Respondent filed an Application for advance Costs on February 27, 2020, which was adjourned sine die due to COVID.

The Appellant applied to dismiss the Respondent’s claim for long delay on October 29, 2021, arguing that the Respondent’s claim was stalled because of her unwillingness to negotiate a settlement or properly pursue the matter. The Chambers Judge held that the last significant step in the Action was the granting of a divorce and severing of the divorce from the corollary relief. Less than three years had passed since that step. Alternatively, if the last significant step was the exchange of the Affidavits of Records, the Chambers Judge held that the delay due to COVID would not be counted, and so there was no delay.

The Court of Appeal upheld the Chambers Judge’s Decision. A Chambers Judge’s Decision on an Application to dismiss an Action pursuant to Rule 4.33 is entitled to deference. The Appellant must show an error in principle, or that the exercise in the Judge’s discretion was unreasonable. The Court of Appeal found that the divorce judgment was one of the steps sought by both Parties in the Action, and that the Affidavit of Records was significant to the litigation moving forward.

The Court of Appeal also upheld the Order for advance Costs. An Order for advance Costs made under Rule 12.36 is highly discretionary. The Appellant was unable to point to any errors in principle. His Appeal was dismissed.

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