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A Case on Long Delay under the Alberta Rules of Court

Lawsuits in Alberta are governed by a number of procedures and rules which are found in the Alberta Rules of Court. One of the important rules in Alberta lawsuits deals with long delay. Plaintiffs who don't advance their cases do so at their own risk.

The rule dealing with long delay is as follows:

4.33(2) If 3 or more years have passed without a significant advance in an action, the Court, on application, must dismiss the action as against the applicant, unless

(a) the action has been stayed or adjourned by order, an order has been made under subrule (9) or the delay is provided for in a litigation plan under this Part, or

(b) an application has been filed or proceedings have been taken since the delay and the applicant has participated in them for a purpose and to the extent that, in the opinion of the Court, warrants the action continuing.

The Court in Richardson Pioneer Ltd v Hutterian Brethren Church of Silver Valley, 2021 ABQB 20 said at paragraph 21:

21] The Plaintiff argues that R 4.33 should be read in the context of the foundational rules as set out in the Alberta Rules of Court. Those rules impose duties on both Plaintiffs and Defendants to “communicate honestly, openly and in a timely way” (R 1.2(2)(d)), to “jointly and individually… facilitate the quickest means of resolving the claim at the least expense” (R 1.2(3)(a)), and to “respond in a substantive way and within a reasonable time to any proposal for the conduct of an action” (R 4.2(b)). The Plaintiff argues that the Defendant failed in these foundational duties.

[22] It is true that R 4.33 is to be considered in the context of the foundational rules. The foundational rules do not, however, override the clear mandatory language of R 4.33 and do not require a defendant, in any manner, to assume carriage of an action where the plaintiff is not actively advancing its own claim. The initiative at all times remains with the plaintiff to pursue its lawsuit in a timely fashion: Janstar Homes Ltd v Elbow Valley West Ltd, 2016 ABCA 417 at para 26; XS Technologies Inc v Veritas DGC Land Ltd, 2016 ABCA 165 at para 7.

If you have questions about how this or any other rule works, please feel free to contact us.

The information contained in this article is not legal advice. No solicitor client relationship is formed through this article. The reader is encouraged to retain counsel for advice in these matters.

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