The Defendant appealed a Decision by a Chambers Justice dismissing his Appeal of an unsuccessful Rule 4.33 Application. The Court of Appeal found no error in the Chambers Justice’s Decision and dismissed the Appeal.

The lawsuit claimed negligence of the Defendant, a lawyer. In reviewing the background of the matter, the Court noted that the Plaintiff had applied to add the Law Society of Alberta and Alberta Lawyers Indemnity Association as parties to the Action. However, the Plaintiff’s Application was dismissed by the Applications Judge. Further Appeals by the Plaintiff to the Court of King’s Bench and Court of Appeal were also dismissed (the “Appeals”).

For the purpose of the Defendant’s Appeal, it was noteworthy that both the Applications Judge and the Chambers Justice found that the Plaintiff’s Application to add the parties significantly advanced the Action under Rule 4.33. Rule 4.33 states than Action must be dismissed if three or more years have passed without a significant advance unless, since the delay, the Plaintiff has participated in proceedings that warrant the continuation of the Action.

The Appellant advanced two arguments. First, the Chambers Justice failed to consider the functional approach under Rule 4.33. Second, the Chambers Justice failed to properly apply the functional approach when it determined that the Appeals significantly advanced the Action.

On the first point, the Court found that the Chambers Justice understood the principles applicable to Rule 4.33. The Chambers Justice considered the history of the matter and summarized the parties’ submissions before the Applications Judge with respect to the functional approach. Further, the Chambers Justice was alert to the discussion between the Applications Judge and the Respondent regarding the addition of parties to an Action, noting that “knowing who the parties [are] is a significant advance”.

On the second point, the Court found that the Defendant had advanced the same argument in the Courts below. There was no error in the Chambers Justice’s finding that the Appeals constituted a significant advance in the Action.

The Chambers Justice’s Decision was entitled to deference and the Appeal was dismissed.