Master robertson

4.33: Dismissal for long delay

Case Summary

The Defendants applied for dismissal of the Plaintiffs’ Claim for long delay pursuant to Rule 4.33. The Plaintiffs filed and served the Statement of Claim nearly four years prior. Shortly after the Statement of Claim was served, the Defendants’ counsel advised that he was acting and requested the usual courtesy of taking no default proceedings without reasonable prior notice, to which the Plaintiffs’ counsel agreed. Then the Claim remained dormant. The Plaintiffs’ counsel relied on Rule 4.33(1)(a) and argued that the parties had agreed to the delay and the exchange of correspondence was a “standstill” Agreement. Master Robertson noted that there are three stated exceptions to the “drop dead” rule, the first of which is where “the parties to the Application expressly agree to the delay”.

Master Robertson reviewed the leading authorities and observed that the law in Alberta is clear: when the Defendant’s counsel asks for reasonable notice before the Plaintiff takes default proceedings, and the Plaintiff agrees, Rule 4.33(1)(a) does not come into play. The exception is in reference to a delay of three or more years. A request for a courtesy, by itself, is not an agreement to a delay of three years without a significant advancement in the Action. If the Plaintiff does not follow up with the request for a Statement of Defence, there is no need for the Defendant to deliver one, and after three years of inactivity the Defendant may bring an Application for long delay. In the result, the Application to Dismiss was granted.

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