Case: Delver v Gladue, 2019 ABCA 54 (CanLII)
Keywords: MVA; Delay; Outcome; Rule 4.33 of the Alberta Rules of Court, Alta Reg 124/2010
Despite wearing her seatbelt, Leona Delver (the Plaintiff) is injured in a motor vehicle accident being ejected from the seat. She suffers rib, shoulder, pelvic, and neck fractures in addition to collapsed lungs and ongoing psychological effects. The vehicle is operated by Calvin Lariviere and owned by Brenda Gladue (the Defendants). The accident takes place in 2008.
In 2016, the Defendants bring an application, pursuant to Rule 4.33 of the Alberta Rules of Court, Alta Reg 124/2010, to dismiss the action for long delay. The Master grants the application on the basis nothing occurs during the three years prior which significantly advances the action. A Chambers Judge allows an appeal from the Master’s decision. The Court of Appeal allows the Defendants’ appeal; dismisses the action. O’Ferrall J.A. dissents.
This case is important because it offers some perspective on the relevance of “outcomes” when interpreting Rule 4.33(2) of the Alberta Rules of Court, Alta Reg 124/2010.
Rule 4.33(2) provides:
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
(a) the action has been stayed or adjourned by order, an order has been made under subrule (9) or the delay is provided for in a litigation plan under this Part, or
(b) 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.
Both the Majority and Dissent noted the “functional analysis” applicable to determine whether a “significant advance” has occurred is described in Ro-Dar Contracting Ltd v Verbeek Sand & Gravel,  ABCA 123. The Majority emphasized language from para. 21 of that decision, which provides as follows:
 That is not to say, however, that the “outcome” of various steps is irrelevant. The chambers judge correctly embraced the functional test, following cases such as Nash v Snow which stated at para. 30:
30 Put another way, the court must view the whole picture of what transpired in the three-year period, framed by the real issues in dispute, and viewed through a lens trained on a qualitative assessment. This necessarily involves assessing various factors including, but not limited to, the nature, value and quality, genuineness, timing, and in certain circumstances, the outcome of what occurred.
The outcomes or consequences of anything done by the litigants are relevant to whether there has been a significant advance in the action. It was open to the chambers judge to observe that nothing came of the activities during the period of delay, and the languid pace of the action continued.
For the Chambers Judge, two steps taken by the Plaintiff’s counsel constituted reasonable efforts to resolve the litigation:
- an unsuccessful attempt to have the Defendants consent to a trial of an issue (on whether Lariviere was driving with the owner’s consent); and
- a without prejudice letter indicating willingness to recommend a full and final settlement of $250,000.
For the Majority, however, the test is not whether the Plaintiff took steps that could have advanced the action or would have done so. Rather, Rule 4.33 requires acts which result in an outcome which significantly advances the action. In other words, what matters is what actually happens:
In our view, this case is distinguishable from Ro-Dar. There is no evidence that the plaintiff here provided any important new information within the relevant three year period, or that the proposals made by her narrowed the issues or clarified the parties’ positions. While the outcome of any step is not determinative, the test is whether there was a significant advance in the action, not whether unaccepted proposals or attempted procedures could have resulted in a significant advance in other circumstances. The language in paragraph 12 of the chambers judge’s reasons suggests that he was focusing on whether the steps taken by the Plaintiff could have resulted in a significant advance, rather than whether anything was done that actually did significantly advance the action. (See para. 13). [Emphasis in original].
Critically then, the Majority’s decision provides important information to future litigants as to what will/will not constitute an act which complies with Rule 4.33 – specifically, “[a] without prejudice proposal by the plaintiff’s counsel to recommend a settlement figure to her client” does not meet the test. (See para. 14). Additionally for the Majority, “…the unsuccessful proposal to schedule a trial of an issue did not advance this action.” (See para. 15).
In Dissent, O’Ferrall J.A., suggested the Majority’s approach to Rule 4.33 results in the “…inflexible application of a procedural rule” which ultimately impairs the ends of justice, rather than serving them. (See para. 20).
O’Ferrall J.A. cited Ro-Dar for the proposition that the role of outcomes in the analysis should not be overemphasized, particularly in the circumstances of this case. (See paras. 24, 25, and 29):
The plaintiff is a young, indigenous, and indigent woman relying on the best representation she could afford to have her rights vindicated following this horrific accident. Her counsel—a student at law—was working as best she could to advance the cause of her client in the face of uncooperative and more experienced opposing counsel who consistently blew off her reasonable, though unforceful, proposals. The chambers judge was well informed of these circumstances and was not prepared to dismiss this action. He did not make a palpable and overriding error in refusing to dismiss. (See para. 29).
O’Ferrall J.A. offered an alternative policy perspective in this case, one which suggests determining whether an action has been continued “…should not depend on the cooperation of opposing counsel when genuine and reasonable efforts are being made to advance the action.” (See para. 20).
Counsel for the Respondent: Stuart Weatherill (Emery Jamieson LLP, Edmonton)
Counsel for the Appellant Brenda Gladue: Colleen Nash (Intact Insurance Company, Edmonton)
Counsel for the Appellant, Calvin Lariviere: Damian Shepherd (CBM Lawyers, Edmonton)