NASH v SNOW, 2014 ABQB 355


1.2: Purpose and intention of these rules
1.7: Interpreting these rules
4.33: Dismissal for long delay
15.15: Coming into force
15.4: Dismissal for long delay: bridging provision

Case Summary

The Defendant applied to strike the Plaintiff’s claim for long delay. The Application turned on whether a settlement letter sent nine weeks before the “drop dead date” and an 11th hour Notice to Admit Facts qualified as having “significantly advanced” the Action, which was otherwise dormant for more than four years.

Justice Topolniski discussed transitional Rule 15.4, which came into force on November 1, 2010 and was in effect until November 1, 2013, the date the Notice to Admit was served. Rule 15.4 fixed the “drop dead date” at the earlier of five years after “the last thing done that significantly advanced” the Action, or three years following November 1, 2010, the coming into force date of the new Rules. Under the transitional Rule, if the last thing done to significantly advance the Action was prior to November 1, 2010, the drop dead rule would be triggered on November 1, 2013, at the very latest. Rule 4.33 provides that if three or more years have passed without a significant advance in an Action the Court must dismiss the Action as against the Applicant. Justice Topolniski noted that Rule 4.33 is mandatory. Subject to agreement of the parties to the delay or another of the exceptions listed in subsection (1), there is no discretion to save a dormant Action.

Topolniski J.’s interpretation of Rule 4.33 began with reference to the purpose of the Rules and Rule 1.7, which states that interpretation of the Rules requires a purposive and contextual approach. While many Courts may describe the purpose of Rule 4.33 and its predecessors in different ways, its underlying purpose is always the same: to advance lawsuits and put an end to flagging litigation. Pursuant to Rule 1.2(1), the purpose of the Rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost effective way.

In interpreting Rule 4.33, Topolniski J. noted the absence of the words “the last thing” or “step”, which necessarily modifies the focus of the purposive and contextual assessment. The issue is “advancing” or moving the action and the issues in dispute forward. Accordingly, the Court must take a macro-view of what transpired in the three year window. This approach does not affect the view that there is no difference between the words “materially advance” (in former Rule 244.1) and “significantly advance”. However, it may affect the applicability of certain pre-November 1, 2013 authorities, particularly those that applied an analysis based on categories rather than functional impact. Topolniski J. observed the culture shift called for in Hryniak v Mauldin, 2014 SCC 7, and Windsor v Canada Pacific Railway Ltd, 2014 ABCA 108, which supported the Plaintiff’s contention that the end goal of “significant advancements” under Rule 4.33 is not necessarily trial, but rather resolution. Topolniski J. agreed.

Topolniski J. found that neither the settlement offer nor the counter-offer of Discontinuance on a without costs basis reset the clock on delay. While a significant advancement towards resolution can mean advancement to settlement, a functional analysis mandates something more than a bare offer to settle in the three year window; it must result in progress of some sort in the Action.

Topolniski J. found that the Plaintiff’s 11th hour attempt to breathe life into her lawsuit by serving the Notice to Admit on the drop dead day was too late. The Defendants made no admissions, deemed or actual. Rather, the response was a firm objection to the Notice to Admit and the Motion to Dismiss, brought well within the time for responding to the Notice to Admit. To significantly advance an Action, an admission sought from the other party must be relevant to the issues in the litigation, and it must add something new to the proceedings. The Notice to Admit did not significantly advance the Action, either alone or in combination with the letter. Topolniski J. held that nothing happened in the three years preceding the drop-dead date of November 1, 2013 which would have enabled the Plaintiff to avoid the effect of Rule 4.33. The Defendants neither agreed to, nor acquiesced in, the delay. Accordingly, there was no option but to dismiss the Action.

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