Successful application to dismiss the plaintiffs' action pursuant to Rule 4.33 on the basis three or more years had passed without a significant advance in the action.

[2016] A.J. No. 183

2016 ABQB 104

Alberta Court of Queen's Bench

Master W.S. Schlosser (In Chambers)

February 24, 2016

On November 5, 2005, the insureds' home burned to the ground. The limit of the insureds' policy was paid out in February 2007. The insureds commenced an action against their insurer, insurance broker, and the insurer's independent adjuster on the basis they were underinsured.

Approximately five years after the action was commenced, one of the defendants brought an application to compel answers to the insureds' undertakings given at questioning. On November 1, 2011, a consent order was filed requiring the plaintiff to provide answers by November 28, 2011.

Subsequently, nothing happened in the action for nearly three years. As the three year deadline approached, the insureds scheduled an application requiring the defendants to provide answers to undertakings that either had not been fully answered or had been refused. In addition, the insureds provided a request to schedule a trial date and swore a supplementary affidavit of records; however, the supplementary affidavit of records listed documents the insureds had produced in answer to the consent order obtained in November 2011. Defence counsel were not available on the return date of the application and the matter was adjourned sine die.

The insureds argued Rule 4.33 should not be given retroactive effect or that the drop dead period should be five years. The Court found that Rule 4.33 plainly has retroactive effect and applies to actions that were in existence when it came into force (November 1, 2013). Accordingly, the drop dead period at issue in the application was three years. In addition, the insureds argued the steps they took in November 2011 significantly advanced the action. The Court determined the application scheduled by the insureds did not advance the action because it was not heard and determined. The request for a trial date was not a significant advance because a trial date was not actually secured. The Court found the supplementary affidavit of records only listed additional documents that had already been provided and was just housekeeping and not a significant advance in the litigation. The Court then considered whether if the application to compel the defendants to provide answers to undertakings had gone ahead in November 2014, the action would have been significantly advanced. The Court reviewed the undertakings at issue and found that even if the requested documents had been ordered to be produced, they would not have significantly advanced the action.

As a result, the Court concluded the action had not been advanced in the time period permitted by the Rules. In the circumstances, it was not within the Court's discretion to allow the action to continue and the action was dismissed for delay pursuant to Rule 4.33.