A recent amendment to Rule 4.33 (dismissal for long delay) of
the Alberta Rules of Court has been introduced. At first
glance, the amended Rule 4.33 looks like it has been completely
revamped, however, the core of it remains the same. The biggest
change appears to be the addition of a 'suspension period',
with the Rule setting out the procedure under which the period
comes to be operative and how it is applied.
The use of the term 'suspension period' is new to the
Rules. Prior to the amendment, the Court was often faced
with decisions as to whether a standstill agreement had been
reached between the parties that allowed for a delay in the action
beyond three years. One of the issues to consider in that analysis
was whether an express written agreement had been reached with
respect to a delay in the entire action and not just one step.
The amended Rule 4.33 now sets out that the three year period
for delay will not operate when an agreement has been reached that
contemplates a specific date or an event happening. This seems to
suggest the parties do not have to turn their mind to a delay in
the action overall. Further, we interpret the amended Rule to mean
that the suspension period can be carved out of the three years,
such that, on the expiry of a certain date, if nothing has been
done to advance the action, the clock begins where it left off
prior to the suspension period being put in place.
Procedurally, under the amended Rule, parties can consent to a
written agreement for a "suspension period'.
Alternatively, a respondent (defined in the rule as a party who has
filed a commencement document), may serve an applicant (a party to
an action who makes an application to dismiss the action for delay)
with a written proposal that sets out a suspension period and
requests that that period not be included in computing the period
of time for long delay. The applicant must respond to this proposal
within two months. If the applicant disagrees with it or does not
respond, the respondent may then apply for a Court Order.
Unfortunately, the amendment does not provide any further
guidance on one of the more contested issues under Rule 4.33,
namely, what constitutes a 'significant advance' in the
action. As most know, however, the Alberta Court of Appeal has
affirmed that a "functional approach" should be taken in
determining whether an action has been significantly advanced,
leaving the court with wide discretion to consider any step that is
seen to bring an action closer to resolution.
The recent amendment appears to provide a new vehicle for
parties to keep an action alive. This is balanced, however, by
parameters that prevent parties from completely resetting the clock
when agreeing to postpone a certain step. While it remains to be
seen how these amendments will be applied and whether there will be
any significant impact in dealing with long delays, going forward
it will be important to have clear communication with opposing
counsel regarding timelines agreed to within an action.
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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