July 26, 2016

Author: Joseph Oppenheim and Eleanor Carlson

Personal Injury Law Update: Dismissals for Long Delay (“Drop Dead Rule”)

The Alberta Rules of Court require a plaintiff in a civil lawsuit to advance an action towards trial. If a plaintiff does not “significantly advance” the action for three years, the Court must dismiss the action for “long delay” on application by the defendant. This is colloquially known as the “drop dead rule”.

We advise and guide plaintiffs to move legal actions forward expeditiously so as not to be in a position of having to respond to delay applications. However, delays are sometimes unavoidable, as in, for example, serious personal injury matters where damages cannot be fully assessed until the injuries have healed or recovery has plateaued. In those circumstances, plaintiffs should pursue standstill agreements or court sanctioned litigation plans that account for delay.

If a standstill agreement or litigation plan cannot be obtained and the action becomes dormant, plan ahead. Where a defendant’s consent or response is required for a step in the litigation, ensure there is enough time to obtain a court ordered deadline for a response. That deadline should expire with enough time to allow the plaintiff sufficient time to file, serve and have the necessary follow-up application for relief heard before the end of the three year delay period.

There are three foundational principles in assessing whether an action should be struck for long delay.

1. The Rules of Court are intended to facilitate the quickest means of resolving a dispute at the least expense.
2. The plaintiff bears the ultimate responsibility to prosecute a claim and cannot blame the defendant for the failure to do so. Thus, a failure of a defendant to respond to steps taken by the plaintiff will not negate the plaintiff’s failure to move the matter forward.
3. A “functional analysis” is to be applied, whereby the Court take a global view of the case at hand and determine whether the plaintiff has taken steps to move the lawsuit closer to trial in a meaningful way.

The recent case of XS Technologies Inc v Veritas DGC Land Ltd, 2016 ABCA 165 is illustrative. The Court of Appeal considered whether the Plaintiff’s service of a Notice of Written Questioning and service of a Supplemental Affidavit of Records were “significant” steps. The Court’s application of the aforementioned foundational principles was as follows:

Supplemental Affidavit of Records

The Court of Appeal considered the documents listed in the Supplemental Affidavit of Records and found that it could have been (and should have been) prepared and served much earlier than it was. Thus, its service was deemed to not be a step that significantly advanced the action.

Notice of Written Questioning

The Plaintiff issued this Notice in order to obtain the defendant’s corporate representative’s acknowledgment that its employee’s evidence given at Questioning formed some of its information for the purposes of trial. The Alberta Rules of Court require that this acknowledgment must be given by a corporate defendant before a plaintiff is permitted to read in that evidence at trial. The Court reasoned that it is only the Defendant’s acknowledgment that would constitute a significant advancement of the action – not the Plaintiff’s service of notice requiring it. Thus, the Notice was deemed not “significant.”

The law surrounding dismissal for delay is continually evolving. Please contact us if you require further information about it.