September 16, 2020
On March 30, 2020, in response to restricted Court access in Alberta due to the COVID-19 pandemic, Alberta’s Minister of Justice issued a Ministerial Order (the “Order”) that effectively “pushed pause” on certain litigation deadlines:
“Any period of time within which any step must be taken in any proceeding... is suspended subject to the discretion of the Court, tribunal, or other decision maker from March 17, 2020 to June 1, 2020,”
and further:
“For clarity, the limitation period or period of time resumes running on June 1, 2020 and the temporary suspension period shall not be counted.”
The Order captured steps that are required to be taken pursuant to the Rules of Court, AR 124/2010. The Order suspended the deadlines for litigation steps that are to be taken pursuant to the Rules of Court that contain deadlines, such as the filing and serving of a Statement of Defence (Rule 3.31(3)) or the serving of an Affidavit of Records (Rule 5.5).
However, the suspension period in the Order did not directly address, and therefore likely does not apply to, litigation steps that are to be taken pursuant to the Rules of Court that do not contain specified deadlines, such as Questioning (Rule 5.20) or scheduling a matter for Trial (Rules 8.4 and 8.5). In fact, the majority of litigation steps that are to be taken pursuant to the Rules of Court do not contain specified deadlines by which they must be completed.
Rules 4.31 and 4.33 of the Rules of Court, sometimes referred to as the “delay rules”, give recourse to defendants in the event that the litigation brought against them does not move forward or resolve in a timely manner.
Rule 4.33: Upon application, if three or more years have passed without a significant advance in the action, then the Court must dismiss the action as against the applicant.
In the unlikely event that a defendant were to bring a Rule 4.33 delay application before the completion of litigation steps that must be taken within a certain time (for example, the service of an Affidavit of Records), then those steps are very likely captured by the Order and the three-year period set out in Rule 4.33 would be extended. This would probably result in the dismissal of a Rule 4.33 application that failed to take into account the suspension period in the Order.
In the more likely scenario, where a defendant brings a Rule 4.33 delay application long after the mandatory deadlines under the Rules of Court have been completed and the plaintiff has since failed to advance the action, then it is arguable that the three-year period set out in Rule 4.33 is not affected by the Order. This could result in the Rule 4.33 delay application succeeding despite the suspension period in the Order. However, in all likelihood, the Court would carve out the suspension period set out in the Order in its analysis of delay in a Rule 4.33 application.
Rule 4.31: On application, the Court may dismiss all or any part of a claim if the Court determines that the delay has resulted in significant prejudice to a party.
It is more unpredictable how the Court might scrutinize a delay application brought pursuant to Rule 4.31. Whereas Rule 4.33 directs that the Court “must dismiss” the action, Rule 4.31 states the Court “may dismiss” the action if it is determined that the delay is inordinate and inexcusable, which is presumed to result in prejudice to the applying party.
Because Rule 4.31 does not specify a period of time that will lead to a finding of delay, it is difficult to ascertain if the Court would then determine that the suspension period set out in the Order will factor into an application brought under Rule 4.31.
It is likely that if the Court determines on a Rule 4.31 delay application that the delay is inordinate and inexcusable without taking the suspension period in the Order into account, then the Court’s determination would not change in light of the suspension period. However, there will conceivably be situations in which the Court determines it to be entirely reasonable that the litigation had not moved forward because of the COVID-19 pandemic and finds that the delay is therefore excusable.
The suspension period in the Order was not extended past June 1, 2020 by further Ministerial Order. As of the date of writing this article, the Court has not yet issued any decisions which consider the delay rules as they relate to the Order, but the Court will almost certainly have the opportunity to deal with the intersection of the delay rules and the Order in the coming months. Defendants should be wary of making delay applications pursuant to Rule 4.31 and 4.33 without taking into account the suspension period in the Order, as the Court would likely be cautious to include in its analysis the time that the plaintiff could not take steps in the litigation due to the COVID-19 pandemic.
For more information about Rule 4.31, Rule 4.33 and other Rules of Court, JSS Barristers is pleased to announce the launch of the new JSS Barristers Rules Database: a comprehensive, free database providing summaries of Alberta Court decisions which consider the Rules of Court and commentary related to the Rules of Court.
Gavin Price is the Firm Chairperson at JSS Barristers.Click here for his bio.
Charlotte Stokes is an Associate at JSS Barristers. Click here for her bio.
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