Rules 4.31 and 4.33 were introduced in order to manage litigation and ensure actions are dealt with in an efficient manner. The Courts have noted that litigation delay is a “longstanding and corrosive problem” (Humphreys v Trebilcock, 2017 ABCA 116) and in recent years, these particular delay rules have been used more and more frequently in order to dismiss old, stale actions. For instance, the Alberta Lawyers Indemnity Association (ALIA) reported a 239% increase in claims from 2016 to 2021. However, dismissals pursuant to Rule 4.31 and 4.33 in the context of personal injury claims are relatively rare despite the fact that these actions can drag on for many, many years.
Babiuk v Heap, 2023 ABKB 410 features just that, a dismissal of a personal injury claim pursuant to Rule 4.31 and Rule 4.33 of the Alberta Rules of Court. In this case, the plaintiff was a passenger in a motor vehicle that was rear-ended on October 7, 2003. The driver of the offending vehicle was uninsured, and an action was brought against the Administrator of the Motor Vehicle Accident Claims Fund in respect of the Plaintiff’s personal injuries. The action was commenced on October 4, 2005. Several steps occurred at this time. The Plaintiff served expert reports including an orthopaedic assessment and some medical records were exchanged. It was not until July 23, 2008 that the Fund provided a filed Statement of Defence. From there, document production occurred, as did Questioning. However, between the years 2007 and 2019, much of the litigation between the parties pertained to ascertaining the identity of the owner of the motor vehicle that had caused the accident, followed by applications both to add that owner and then to dismiss the claim against the owner due to the late addition of that party. The Action essentially lay dormant at that time.
The Court held that the last material step in the Action occurred on January 31, 2018, a costs hearing in relation to a dismissal application relating to the owner of the vehicle. The Plaintiff’s position was that the settlement discussions that occurred after January 31, 2018 amounted to a material step in the Action. However, the Court held that there was no evidence that those settlement discussions actually narrowed the issues, meaning they did not constitute a material step.
In assessing the merits of the Fund’s application to dismiss the claim, the Court relied heavily on the foundational rules and held that “litigants are mandated to litigate cost-effectively, in a timely fashion, with a focus on the issues and on well-timed resolution, in a transparent fashion.” The Court found that the case at bar was not a complex case, and that there was “no difficulty in finding the delay [inordinate]”.
The only excuse that could be offered by the Plaintiff to justify the delay was the fact that her previous lawyer was “blatantly dilatory” in the prosecution of the action. However, this does not entitle a plaintiff to save their action despite the Court’s sympathy to the Plaintiff. The Court went on to dismiss the action pursuant to Rule 4.31 and 4.33 of the Alberta Rules of Court.
Although the within case featured a relatively egregious delay, it is a reminder that motor vehicle accident claims are not immune from dismissal pursuant to Rule 4.31 and Rule 4.33. It is also a reminder that settlement discussions, while encouraged by the Court to resolve matters efficiently, do not often amount to a “material step” as per Rule 4.33.
