By Ian Carruthers and Noel Harper
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Welcome back to In This Case. This week was our first example of how Rule 4.33, or the ‘drop dead’ rule of dismissal for delay, might apply to a case, and what actions would be considered significant advancements. If you haven’t seen our post explaining the facts of this application or answered the question about the case, please do so here before reading any further.
Alston v. Haywood Securities Inc., 2020 ABQB 107 involved a dispute between a client and her investment bank due to unclear instructions on how to handle the client’s assets. The plaintiffs filed their statement of claim on June 24, 2010, but the case was drawn out for years. The defendants filed an application to dismiss for delay on April 11, 2019.
According to the nearly decade-long chronology considered by the Master, the most recent significant advancement of the action at the time of the ruling was on March 8, 2016, and “the activity in the action after that date, much of which was directed at managing Ms. Alston’s obstruction of the progress of her own law suit, did not significantly advance the action.” Therefore, the answer to this week’s question is d), as there were no steps that significantly advanced the action taken between March 8 and the date of the dismissal application.
As Rule 4.33 states:
(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, an 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.
When it comes to the Rule 4.33 application of this case, “the focus is on the substance of the steps taken and their effect on the litigation, rather than on form.” To be considered a significant advancement of the action, a particular step would need to narrow the issues at hand, clarify the position of a party, be pertinent to the discovery of documents or information, suggest that a procedural time requirement is not running, or convince someone that inactivity was justified.
The communications that took place between March 8, 2016, and November 2017, the topics of which included a settlement offer and the defendant’s records production application, did not meet these criteria. When the defendants asked about a settlement offer in November 2016, this question sent a preliminary signal that further discussions might take place, but nothing came of it. According to the decision, this “reflected [a] past pattern in this action … which never achieved any meaningful or significant advance.”
Furthermore, when litigation activity restarted in late November 2017, the planned initiatives of the plaintiffs setting a trial date and the defendants completing a litigation plan and applying for the aforementioned records production were not completed. The Master also ruled that adjourning the records production application to the special list in Master’s Chambers was not a significant advancement.
When the plaintiff appealed this decision, it was dismissed due to having no merit, with the Justice stating that “meritless appeals of routine adjournments do not significantly advance law suits.” The defendants would then bring a series of applications to compel the plaintiff to appear for cross-examination on her affidavit, which were also found to have not advanced the action, but “merely manag[ing] a litigant who was unwilling to comply with the Court’s procedural requirements,” and neither did the plaintiff’s appeal of a costs order to avoid said cross-examination.
The settlement overtures that took place between December 2017 and March 2018 did nothing to narrow the issues or advance either party’s understanding of the facts or law. Lastly, because the applications to produce documents and set the matter down for trial were still at a preliminary stage when the defendant’s dismissal application was filed, they did not significantly advance the action either. Therefore, the action against the defendants was dismissed under Rule 4.33.
PRACTICE TIP
Ensure that applications are made in time to be heard. A party that files an application which is adjourned to a special chambers date set after the three-year time limit of Rule 4.33 expires may find themselves arguing a losing delay application instead of the intended special chambers hearing.
Your lawyer made a mistake. Is it malpractice?
As seen in this case, despite much activity, the plaintiff failed to significantly advance the claim in a period of three years. This is often the result of the client’s conduct, but if a client proceeded without being made aware by their lawyer of this ‘drop dead’ period, the lawyer may be at fault.
Are you facing a dismissal for delay application? Carruthers Law can assist in opposing it, or determining whether you have a claim against the lawyer handling your file. Contact us for a complimentary consultation to discuss your situation.