Norm Machida, Q.C. of our office successfully argued an appeal involving the application of the drop dead rule in a matrimonial property action. The drop dead rule allows a defendant in a lawsuit to apply to have an action dismissed if there has not been a significant advance in the action in three or more years. In this most unusual case, the parties had litigated over the division of matrimonial property for 20 years, though no resolution had been reached. The Court of Appeal struck the action, confirming that:
- As a defendant, there is no duty to advise the delaying party that the delay is not consented to. In other words, a lack of such communication does not hinder a defendant’s drop dead application and does not amount to lulling a plaintiff into believing that the delay is agreed to;
- Any prejudice to the plaintiff is not a consideration when applying the drop dead rule, even in the matrimonial context where the Plaintiff loses the ability to obtain a division of property.
This is a significant decision, particularly as there is little jurisprudence on the use of the drop dead rule in family law cases. Read the full decision here.