In Nash v Snow, 2014 ABQB 355, the Alberta Court of
Queen's Bench considered an application under Rule 4.33 to
determine whether a settlement letter, sent nine weeks after the
formal "drop-dead" date, and a last-minute "notice
to admit facts" ("NTA") application
had significantly advanced the court action that otherwise remained
idle for over four years. Rule 4.33 permits a party to apply to
have a lawsuit dismissed on the basis that there has not been a
"significant advance" in the action for over three
Steps to Advance Court Action Must Satisfy Qualitative
The Court emphasized that the purpose of the Rules of Court are
to promote efficiency, proportionality and economy. Where a
plaintiff seeks to use publicly funded court resources, but does
not diligently pursue their action, then the defendant is free to
have the lawsuit struck. Madam Justice Topolniski noted that in
order to advance an action, the step taken must be substantial,
solid and genuinely further the litigation. Examples of steps that
meet this criteria include:
gathering economic and medical reports to assess damages;
complying with undertakings (under certain circumstances);
filing an affidavit of documents.
Steps that will not advance the action include merely setting a
date for questioning and filing a supplementary affidavit of
records to formalize documents that have been previously produced.
The Decision underscores the importance of a "macro"
analysis of what has transpired between the parties in the
three-year window. Specifically, 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." The Court concluded that while a
settlement letter, followed by some sort of further action such as
the narrowing of legal issues, a potential agreement, or
streamlining of the trial process, might be considered a step
taken, but the mere transmission of a settlement letter will not
reset the three-year clock.
The Court found that the plaintiff's "last-ditch"
effort of serving the NTA on the last day before the drop-dead date
was simply an insufficient and desperate attempt to keep the action
alive. The Court also found that in order for a NTA to even be
considered a thing done to advance the action, the nature of the
admissions must be relevant. In this decision, the nature of the
admissions that were sought could not have significantly advanced
the action, even if the facts were admitted. In summary, viewed
through the "macro-lens" nothing happened in the three
years preceding the drop-dead date of November 1, 2013, therefore,
the plaintiff's claim was struck.
Playing by the Drop Dead Rule: Proper Management of Lawsuit the
Responsibility of Plaintiffs
The Plaintiff's conduct in this case is a stark reminder
that litigants in Alberta must be vigilant in pursuing their
actions before the Court. Madam Justice Topolniski underscored the
importance of efficiency, proportionality and economy and the
responsible use of publicly-funded court resources. The Decision
reaffirms the Alberta Court of Appeal's recent decision in
Windsor v Canadian Pacific Railway Ltd., 2014 ABCA 108, which held that affordable and
timely access to justice demands a "cultural shift" from
the notion of conventional trials towards proportional procedures
tailored to the needs of a given case. The Decision confirms that
it is the responsibility of the plaintiff to diligently and
carefully manage litigation, with a view to resolving the dispute,
whether it is by way of settlement or ultimately at trial. This
decision is also a cautionary tale indicating that litigants who
seek to file applications and materials at the last minute risks
having their claim summarily struck out.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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