Rule Details
LI v EYONG
Rules Discussed
- Rule 4.33 Dismissal for long delay
- Rule 11.22 Recorded mail service
Case Summary
The Plaintiffs appealed a decision dismissing an Action for long delay, pursuant to Rule 4.33(2). In February 2016, the Appellants commenced an Action against the Respondents. In February 2017, the Respondents filed an Application to strike the Statement of Claim (the “Strike Application”). The Strike Application was adjourned sine die, twice. After COVID-19 Court restrictions were lifted on September 23, 2020, the parties took no further steps for almost three years. Although counsel for one of the Appellants sought consent to suspend time pursuant to Rule 4.33, the Respondents did not respond, and the Appellants did not bring an Application for a suspension of time, pursuant to Rule 4.33(9).
On October 22, 2024, the Respondents applied to dismiss the Action for long delay, pursuant to Rule 4.33(2). The Applications Judge granted the Application and the Chambers Judge dismissed the subsequent Appeal. The Appellants then appealed to the Court of Appeal.
The Court held that the standard of review was palpable and overriding error. Justice Strekaf, Justice Antonio, and Justice Friesen confirmed that Rule 4.33(2) is mandatory. Once three years pass without a significant advance in an Action, dismissal must follow unless a prescribed exception applies.
The Court rejected the Appellants’ argument that the sine die adjournment of the Strike Application constituted a stay or litigation plan pursuant to Rule 4.33(2)(a). The adjournment affected only a single Application and did not suspend or govern the Action as a whole.
The Court also rejected the submission that the Respondents’ failure to respond to the request to suspend time implied consent to a suspension. The Court held that an agreement under Rule 4.33(5) must be clear, explicit, and in writing.
Finally, the Court rejected an argument that service of the Strike Application was not in order. The Court held that the Strike Application was properly served pursuant to Rule 11.22 and there was no evidence that it did not come to the Appellants’ attention.
The Appeal was dismissed.