In Nash v Snow, 2014 ABQB 355, the Alberta Court of Queen’s Bench considered an application under Rule 4.33 to determine whether a settlement letter, sent nine weeks after the formal "drop-dead" date, and a last-minute "notice to admit facts" (“NTA”) application had significantly advanced the court action that otherwise remained idle for over four years. Rule 4.33 permits a party to apply to have a lawsuit dismissed on the basis that there has not been a "significant advance" in the action for over three years.

Steps to Advance Court Action Must Satisfy Qualitative Criteria

The Court emphasized that the purpose of the Rules of Court are to promote efficiency, proportionality and economy. Where a plaintiff seeks to use publicly funded court resources, but does not diligently pursue their action, then the defendant is free to have the lawsuit struck. Madam Justice Topolniski noted that in order to advance an action, the step taken must be substantial, solid and genuinely further the litigation. Examples of steps that meet this criteria include:

  • conducting questioning;
  • gathering economic and medical reports to assess damages;
  • complying with undertakings (under certain circumstances); and
  • filing an affidavit of documents.

Steps that will not advance the action include merely setting a date for questioning and filing a supplementary affidavit of records to formalize documents that have been previously produced. The Decision underscores the importance of a "macro" analysis of what has transpired between the parties in the three-year window. Specifically, the Court must “view the whole picture of what transpired in the three-year period, framed by the real issues in dispute, and viewed through a lens trained on a qualitative assessment.” The Court concluded that while a settlement letter, followed by some sort of further action such as the narrowing of legal issues, a potential agreement, or streamlining of the trial process, might be considered a step taken, but the mere transmission of a settlement letter will not reset the three-year clock.

The Court found that the plaintiff’s “last-ditch” effort of serving the NTA on the last day before the drop-dead date was simply an insufficient and desperate attempt to keep the action alive. The Court also found that in order for a NTA to even be considered a thing done to advance the action, the nature of the admissions must be relevant. In this decision, the nature of the admissions that were sought could not have significantly advanced the action, even if the facts were admitted. In summary, viewed through the "macro-lens" nothing happened in the three years preceding the drop-dead date of November 1, 2013, therefore, the plaintiff’s claim was struck.

Playing by the Drop Dead Rule: Proper Management of Lawsuit the Responsibility of Plaintiffs

The Plaintiff’s conduct in this case is a stark reminder that litigants in Alberta must be vigilant in pursuing their actions before the Court. Madam Justice Topolniski underscored the importance of efficiency, proportionality and economy and the responsible use of publicly-funded court resources. The Decision reaffirms the Alberta Court of Appeal’s recent decision in Windsor v Canadian Pacific Railway Ltd., 2014 ABCA 108, which held that affordable and timely access to justice demands a "cultural shift" from the notion of conventional trials towards proportional procedures tailored to the needs of a given case. The Decision confirms that it is the responsibility of the plaintiff to diligently and carefully manage litigation, with a view to resolving the dispute, whether it is by way of settlement or ultimately at trial. This decision is also a cautionary tale indicating that litigants who seek to file applications and materials at the last minute risks having their claim summarily struck out.