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Delay In Implementation of Drop Dead Rule

17-Jul-12

by Alexis Moulton

July 17, 2012

When the new Alberta Rules of Court came into force November 1, 2010 one of the most talked about changes was the rule as it related to dismissal for long delay, also known as, the Drop Dead Rule (Rule 4.33).

Under the old Rules, five years had to have passed since the last substantive step or the last step taken to significantly advance the action. With the coming into force of the New Rules, this time line was shortened to two years since the last step taken to advance the action. The transition period was two years after November 1, 2010 or five years since the last thing was done to significantly advance the action, whichever came first.

Therefore, as of November 1, 2010 when the New Rules came into force the countdown was on to November 1, 2012.

The expectation by counsel and the Court was that there would be a mad rush of filing and applications on November 1, 2012 to dismiss actions that had been sitting dormant for some time. As this date drew closer, members of the Bar began to voice concerns that perhaps this new two year drop dead date was too onerous. Concern was voiced that two years was not that long considering that in some cases IMEs can take a year to schedule and almost that long to get a report. There was also discussion over what a "step" was and how do the parties know if a "step" had been taken so they were not at risk for dismissal of their action.

The Law Society's Rules Committee took note of these concerns and after a consultation process, requested that the Minister extend the implementation of the two year drop dead rule to three years, subject, as before, to the five year period for acting that existed prior to the New Rules coming into force.

This request has been accepted and the implementation of the drop dead period has been extended an extra year to November 1, 2013 to allow for further discussion and consultation.

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