By Ian Carruthers and Noel Harper
DISCLAIMER: This blog is intended to inform the reader about how the law was applied in a particular case. It should not be taken as advice regarding the outcome of any other case, even one that may have similar facts. The Court’s decision will depend on the facts of each case. Please call 1-844-210-9511 or visit carrutherslaw.ca if you would like to know more about your specific case.
On Monday, we introduced you to a plaintiff who took on several defendants involved in the sale and manufacture of a dryer that caused a fire in her condominium complex, and asked whether or not the action should be allowed to continue following an appeal to dismiss the claim. If you haven’t reviewed this case, or you would like to refresh your memory on the details, you can read it here.
“Rule 4.33 is meant to be used to dismiss languishing actions,” the Master wrote in his decision for Paquin v. Whirlpool Canada LP, 2016 ABQB 147. “This is not, and was not, a languishing action.” The defendants’ dismissal application was denied and the action was allowed to continue. Therefore, the correct answer to this week’s question is a).
Once again, here is Rule 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, 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.
After the action’s last third-party claim was served, both parties spent the next three years attempting to reach a settlement deal and clarify various aspects of the other’s position. “The law with respect to delay applications now focuses upon advancements toward resolution,” Master Farrington wrote, rather than what the specific step or action taken was.
The court believed that the exchange of settlement offers and information about the offers – particularly those from the plaintiff on July 25, 2014, and from the defendant on January 14, 2015 – did constitute a significant advancement of the action. “They clearly show the parties becoming closer on particular issues as the settlement discussion process unfolded and even agreement on some issues, bearing in mind that none of those agreements were in themselves binding,” according to the decision.
There were no formal admissions on specific items within these communications, but they helped to whittle down the positions of both parties and identify the true issues that were being disputed. The various offers from each party that were sent back and forth between 2012 and 2015 eventually became only (approximately) $16,000 apart. When the discussions began, “the defendants were not prepared to even allocate a specific amount to the plaintiff’s claim, and they progressed to a point where the parties had not only allocated specific amounts to the claim, but they may have well have been able to resolve the matter had this application not intervened.”
As the settlement offers were sent between the parties, they both sought clarifications and evidence regarding key aspects of the claim. This exchange of information did advance the matter toward resolution, the court found, and the defendants’ application to dismiss the action under Rule 4.33 was dismissed, allowing the action to proceed.
PRACTICE TIP
Parties should not be afraid to make reasonable concessions during settlement discussions. Not only can this bring the matter closer to a resolution, but even if the parties do not settle, the discussions can bring them closer together on specific issues and eliminate points of dispute. This has the potential to significantly advance an action and reduce the time required for pre-trial steps and the trial itself.
Your lawyer made a mistake. Is it legal malpractice?
While the court found that the settlement discussions saved this claim from a 4.33 application, this may not always be the case. A failure to advance an action is often the result of the client’s conduct, but if a client proceeded without being made aware by their lawyer of the three-year ‘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 professional negligence claim against the lawyer handling your file. Contact us for a complimentary consultation to discuss your situation.