In an Action against Canada and Alberta for aboriginal title, breach of fiduciary duty and other claims, the Defendant, the Attorney General of Canada (“Canada”) and the Queen in Right of Alberta (“Alberta”), unsuccessfully sought to have the Action dismissed for long delay under Rule 4.33. They appealed the Decision to the Court of Appeal.

The Action was delayed between late 2009 and late 2013 due to two internal ethical conflict issues at the Plaintiffs’ law firm. In August 2012 a Consent Order was entered, restricting the conflicted lawyer from working on the Plaintiffs’ file, but the Order did not resolve the law firm’s internal client conflict. The Chambers Judge held that the Order had “significantly advanced” the litigation pursuant to Rule 4.33.

Justices McDonald and Schutz held that the August 2012 Order did not significantly advance the Action, emphasizing that the purpose of Rule 4.33 is to expedite and bring lawsuits that have not been pursued to a conclusion. The Court noted that the Rule requires a “significant advance in an Action”, and not merely a “material advance” as was required in the old Rule 244.1. Further, a functional approach should be used to determine whether a step constitutes “significant advance in the action” in accordance with the decision in Nash v Snow, 2014 ABQB 355 (CanLII) and Rule 1.2. The Court stated that Rule 4.33 must be applied contextually and purposively. A resolution of a particular dispute is required to significantly advance the Action rather than a formal step leading towards a trial. This requires the Court to qualitatively consider the events during the entire three year period, which involves assessing factors including the “nature, value and quality, genuineness, timing, and in certain circumstances, the outcome of what occurred”. The list of factors is not closed.

In dissent, Berger J.A. agreed that a functional analysis of what constitutes a significant advance requires the resolution of a dispute – but opined that the Order obtained in August 2012 constituted a significant advance in the Action because it clarified the Parties’ positions and resolved one of their disputes. The context of the step is as important as the outcome.

In the result, the Appeals were allowed and the Action against Canada and Alberta was dismissed.