The Court of Appeal of Alberta (Court) recently addressed the
issue of chronic delay in civil litigation, when it released a
split decision in Ursa Ventures Ltd. v. Edmonton (City)
(Ursa) on the interpretation of rule 4.33 in the Alberta
Rules of Court. Rule 4.33
directs the dismissal of civil proceedings where a significant
advance in an action has not occurred for three or more years.
Often referred to as the "drop dead" or "dismissal
for long delay" rule, it states that "[i]f 3 or more
years pass without a significant advance in an action," and a
party applies to have the action dismissed, the court must dismiss
the action. The Court's ruling in Ursa offers new
insight into what constitutes a "significant
On November 1, 2010, Ursa Ventures Ltd. (Ursa Ventures) filed a
claim against the City of Edmonton for breach of a commercial
contract. The City of Edmonton filed a defence shortly thereafter,
but neither party took any other steps in the litigation until
October 31, 2013, when Ursa Ventures served its affidavit of
records on the City of Edmonton. A few months later, the City of
Edmonton applied under rule 4.33 to dismiss the action.
WHAT IS A "SIGNIFICANT ADVANCE"?
Writing for the majority, Justice P.A. Rowbotham ruled that the
chambers judge did not err in holding that Ursa Ventures's
affidavit of records was a "significant advance" in the
action. Justice Rowbotham held that rule 4.33 requires courts to
apply a functional, context-driven analysis. The court must ask
whether the step in question actually helped resolve the action by
narrowing the issues or moving the action towards summary judgment
or trial. No step, regardless of whether it is a mandatory step
under the Rules of Court, will be deemed in all cases to
significantly advance an action. For example, service of an
affidavit of records is a mandatory step, but service of a blank
affidavit of records may not significantly advance an action.
In concurring reasons, Justice P.W.L. Martin noted that Ursa
Ventures's affidavit of records did not adequately describe the
documents and was obviously missing key documents. Justice Martin
lamented that "such an infantile step should be allowed to
reset the clock for another three years of inactivity[.]"
Nevertheless, Justice Martin agreed with Justice Rowbotham that the
chambers judge was not unreasonable in finding that the affidavit
of records significantly advanced the action.
Justice T.W. Wakeling, in a lengthy dissenting opinion, argued
that rule 4.33 requires the court to determine whether the
plaintiff advanced the action at an acceptable pace relative to a
notional "reasonably diligent litigant" in similar
circumstances. Justice Wakeling held that Ursa Ventures's claim
should have been dismissed because a reasonably diligent plaintiff
in a similar case would have set the action down for trial by the
end of the three-year period, and a plaintiff moving with
"acceptable dilatoriness" would have at least completed
All three Justices voiced concern over the potential for
litigants to preserve their actions indefinitely without making any
real progress by doing as little as taking one step in every
three-year period. While the functional approach adopted by
Justices Rowbotham and Martin may not fully address this concern,
Justice Wakeling's proposal, involving reference to the
hypothetical "reasonably diligent litigant," may lead to
further litigation on rule 4.33 applications and uncertain
outcomes, given its subjective standard.
A change to the Rules of Court may be required to
develop a workable solution to the problem of chronic delay to help
Alberta courts and litigants achieve the goal articulated by the
Supreme Court of Canada in Hryniak v. Mauldin of
"affordable, timely and just adjudication of claims."
(For more information on Hryniak v. Mauldin, please see
our January 2016 Blakes Bulletin: A Roadmap for Summary Judgment in
IMPLICATIONS FOR ALBERTA LITIGANTS
Parties to civil proceedings in Alberta should be aware that a
civil claim is liable to be dismissed if three years pass without a
step that moves the claim toward trial. They should also be aware
that as a result of the Court's comments in the Ursa
decision, Justices and Masters may take a more critical approach to
determining what constitutes a significant advance in an
The authors acknowledge the contribution of Joshua Smith
(Summer Law Student).
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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