Alberta's Recent Interpretation Of The 'Drop Dead' Rule

As Alberta courtroom availability grows increasingly strained, the rules concerning delays in reasonably advancing lawsuits have received greater attention. Our blog returns from a short break with a two part summary of how these rules have been applied; specifically, Rule 4.33 which calls for mandatory dismissal of lawsuits that have not been significantly advanced for over three years. The first part covers the courts' application of Rule 4.33 up to the end of 2018. The second part will cover the courts' application of Rule 4.33 in 2019.

Application of Rule 4.33 to the end of 2018

The Courts recognize that the Alberta Rules of Court (the "Rules") embody the dual purposes of fairness and efficiency. Rule 1.2 states:

1.2(1) The purpose of these rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost effective way.

This guiding principle colours the Court's interpretation of the Rules. The Rules use a functional approach that de-emphasizes trial as the primary mechanism for resolving civil disputes in favour of procedures such as summary dismissal and alternative dispute resolution.

In the overall scheme, the Rules provide mechanisms to dispose of litigation that has died, become inactive, or is unreasonably and prejudicially slow. Rules 4.33(2) and (4) state:

4.33(2) If 3 or more years have passed without a significant advance in an action, the Court, on application, must dismiss the action as against the applicant, unless

(a) the action has been stayed or adjourned by order, and order has been made under subrule (9) or the delay is provided for in a litigation plan under this Part, or

(b) an application has been filed or proceedings have been taken since the delay and the applicant has participated in them for a purpose and to the extent that, in the opinion of the Court, warrants the action continuing.

4.33(4) The period of time referred to in subrule (2) does not include the following, whichever ends earlier:

(a) the period of time between the service of a statement of claim on an applicant and the service of the applicant's statement of defence;

(b) the period of one year after the date of service of a statement of claim on an applicant.

From a trilogy of cases in 20161 , we know that a court must analyze the steps taken using a functional approach, to determine whether a "litigation step" significantly advances the action.

In deciding this, the Courts will look to see...