Will My Case be Dismissed for Delay?

Where litigation is stagnant for 3 or more years, a court will dismiss the case pursuant to rule 4.33 of the Alberta Rules of Court:

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, an order has been made under subrule (9) (i.e. an agreement or proposal) 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.

This rule, known as the “drop dead rule”, raises the question what constitutes a “significant advance in an action”?

In order to answer this question, the court will apply a functional analysis, as outlined in the case of Nash v Snow, 2014 ABQB 355 [Nash] where it was held that the court must view the “whole picture of what transpired in the three-year period, framed by the real issues in dispute, and viewed through a lens trained on a qualitative assessment. This necessarily involves assessing various factors including, but not limited to, the nature, value and quality, genuineness, timing, and in certain circumstances, the outcome of what occurred (at para 30) [emphasis added].

The court will consider the “real quality of what was done” in the action (Nash at para 40). A significant advance will result in progress of some sort in the action, meaning progress towards resolution, rather than toward trial (Nash at paras 32 and 47).

Since the Rules of Court were updated in 2013, the test courts are to apply when determining the application of rule 4.33 is “to look at the three-year window to determine whether any event on its own, or in cumulation with other events, significantly advances an action”.[1]

In summary, the functional analysis from Nash tells us that a significant advance is one that brings the action closer to resolution. This is also upheld within the foundational rules found in Rule 1.2 of the Alberta Rules of Court.

If you are wondering if the drop-dead rule applies to your case, the dedicated lawyers at Vogel LLP can help to determine the answer.

[1] Melissa Morrow & R. McKay White, “Drop Dead or a Slow Death? An Analysis of Rule 4.33 of the Alberta Rules of Court” (2020) 57:4 AB L Rev 957 at 976.