The Applicant in this family law matter sought an Order dismissing the Action for have been commenced outside of the limitation period, for delay pursuant to Rules 4.31 and 4.33, as well as seeking an Order for the discharge of a certificate of lis pendens registered by the Respondent.

The Court rejected the limitations defence, as the Applicant had not expressly pled reliance on the Limitations Act, RSA 2000, c L-12 as required by section 3(1). His Lordship noted that the Applicant’s argument under Rule 4.31 only sought to dismiss the constructive trust portion of the Respondent’s Statement of Claim. Further, the Court stated that any Application to dismiss for delay involves a consideration of the foundational principles in Rule 1.2 in assessing whether the delay in question justifies dismissal.

However, the Applicant’s argument in relation to Rule 4.31 was effectively that the Respondent’s failure to advance the constructive trust portion of the claim caused the prejudice which was relied upon in support of a prior Application to discharge the certificate of lis pendens from the Applicant’s property. As that Application was dismissed by the Chambers Judge, Justice Malik found the Applicant’s argument pursuant to Rule 4.31 to be res judicata on the basis of issue estoppel. The element of prejudice which was critical to the Applicant’s Rule 4.31 argument had essentially already been litigated. Accordingly, the Rule 4.31 Application was dismissed.

Finally, Justice Malik found that although the constructive trust portion of the Respondent’s claim had not been advanced, this was due to the parties’ focus on parenting and custody issues, which resulted in a Consent Order just prior to the 3-year deadline found in Rule 4.33. This Consent Order constituted a significant advancement of the Action. Thus, the Applicant had not satisfied the requirements for dismissal pursuant to Rule 4.33. His Lordship also made a procedural Order for the scheduling of future steps in the litigation and declined to require the Respondent to post Security of Costs pursuant to Rule 4.22.