WILLIER (WILLIER & COMPANY) v FRANCOEUR

The Court considered an Appeal of a decision from a Chambers Justice refusing to dismiss an Action for long delay, pursuant to Rules 4.33 and 4.31. The underlying Action concerned a dispute arising from an oral agreement between two lawyers. Although the Chambers Justice found that the Action had not been significantly advanced within three years for the purposes of Rule 4.33, he concluded that the Appellant’s response to the Respondent’s proposal to schedule the matter for Trial, indicating that he expected to be ready for Trial in early 2020, constituted participation in the proceedings under Rule 4.33(2)(b). The Appellant appealed, arguing that this communication did not preclude dismissal under Rule 4.33 and that the Action should alternatively have been dismissed for long delay under Rule 4.31.

The Court considered the interpretation and application of Rule 4.33(2)(b), which permits an Action to continue where a party has participated in the proceedings to such an extent that, in the Court’s opinion, the Action should proceed. The Court reviewed the authorities confirming that Rule 4.33(2)(b) was not to be interpreted by reference to the common law doctrine of waiver or other technical common law tests, but rather holistically in light of the Rule’s purpose. The relevant question was whether the responding party’s conduct could reasonably have led the opposing party to assume that the delay would not be relied upon to seek dismissal. The Court also confirmed that applying Rule 4.33 to particular facts was a question of mixed fact and law attracting appellate deference.

Applying these principles, the Court held that the Chambers Justice had not erred in concluding that the Appellant’s response regarding Trial readiness constituted participation within the meaning of Rule 4.33(2)(b). Although the Appellant argued that the communication was conditional and did not satisfy the common law requirements for waiver, the Court held that those principles did not govern the interpretation of the Rule. The Chambers Justice’s conclusion that the Respondent could reasonably have understood the Appellant’s communication as an intention to continue the litigation was entitled to deference.

The Court also considered the Chambers Justice’s application of Rule 4.31. The Court reviewed the principles governing dismissal for inordinate and inexcusable delay and noted that discretionary decisions under Rule 4.31 were entitled to deference absent an error in principle or an unreasonable exercise of discretion. The Court held that the Chambers Justice had considered the litigation history as a whole, had reasonably concluded that the delay was not inordinate, and had not erred in finding that the Appellant had failed to establish significant prejudice. Accordingly, the Court dismissed the Appeal and upheld the Chambers Justice’s refusal to dismiss the Action under either Rule 4.33 or Rule 4.31.