February 12 2013

Rules of Court Committee Recommends Changes to the “Drop Dead Rule”

The Alberta Rules of Court committee has carried out a process of consultation and is making recommendations for changes to the so-called “drop-dead” rule, which is intended to ensure the continuous movement of civil law-suits. The rule had been set to decrease the required time for advancement of a claim from 5 years to 2 years. The implementation was delayed last fall to allow for the review. Though the proposed changes are a step in the right direction, as far as the Plaintiff bar is concerned, there will be many who believe the proposal is still punitive towards Plaintiffs, and that Defense counsel can intentionally stone-wall to create delays that will put a claim in jeopardy.

The Committee also refused to define what significantly advances an action, leaving it open to interpretation in each case. Below is the proposed change to Rule 4.33:

Dismissal for long delay

4.33

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

(a) the parties to the application expressly agreed to the delay,

(b) the action has been stayed or adjourned by order, an order has extended the time for advancing the action, or the delay is provided for in a litigation plan,

(c) the applicant did not give a substantive response within 2 months to a written proposal by the respondent not to advance the action until more than 3 years after the previous significant advance in the action, or

(d) 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.

(2) If the Court refuses an application to dismiss an action for delay, the Court may still make whatever procedural order it considers appropriate.

(3) The time that elapses between

(a) the service of the statement of claim on the applicant, and the service of the applicant’s statement of defence, to a maximum of one year, and

(b) the time between the respondent’s written proposal under subrule (l)(c) and the applicant’s substantive response, to a maximum of one year shall not be counted in computing the time under this rule.

(4) Rule 13.5 [Variation of time periods] does not apply to this rule.