Lawyers are required to navigate a myriad of potential issues for their clients during the course of litigation. Clients rely on their lawyers not only to handle highly complex questions of law, but also to address the procedures required to bring their matters before the courts. While these rules of procedure are typically quite routine, they can still cause serious issues for the unprepared.
This articles addresses one such procedural rule: the "drop dead rule". It will cover what the drop dead rule is and the court's evolving interpretations of what is required of a litigant who wishes to avoid having the otherwise valid claim dismissed for delay.
First, what is a drop dead rule? The rule exists to ensure that claims are dealt with in a timely manner. This desire for prompt resolution is reflected in Alberta's Rules of Court, which include two means for the court to dismiss a claim in the event of delay: (1) a discretionary rule, and (2) a mandatory "drop dead" rule. The latter, officially known as "Dismissal for Long Delay", currently reads 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 [...] The informal name is quite appropriate; if 3 or more years pass without a significant advance then, on application of the opposing party, the action drops dead.
As such, it is very clear that all one must do to avoid dismissal of one's court case under the drop dead rule is significantly advance the action at least once every 3 years. If at this point you are asking, "what constitutes a significant advance?" you're not alone; lawyers find themselves asking this question primarily in two scenarios. The first is when they feel that the action they are defending against has been inactive for quite some time and they start to wonder if they can get it dismissed. The second scenario could not exist without the first--a lawyer begins to consider this question, quite possibly in a panic, when they are served with an application to have their client's action dismissed pursuant to the rule. Notably, this rule is mandatory as it requires such an action be dismissed instead of simply allowing dismissal. Regardless of the injustice you may have suffered, your case is dead in its tracks.
So what is a significant advance? Courts have considered the meaning of the drop dead rule, but unfortunately, the rule has not always appeared as...