Articles
<< back to all ArticlesUnderstanding Alberta’s Delay Rules
Rule 4.33 vs. Rule 4.31
If a lawsuit sits idle for too long, Alberta courts have tools to bring it to an end. Rule 4.33 and Rule 4.31 of the Alberta Rules of Court provide mechanisms for dismissing the claim. Both rules deal with delay, but they work in very different ways.
In simple terms, Rule 4.33 is the “drop dead” rule: if three or more years pass without a significant step forward in the action, the court must dismiss the claim unless an exception applies.
Rule 4.31 is more discretionary. It allows the court to dismiss a claim where delay has caused significant prejudice to another party.
Why the Difference Matters
Although both rules address delay, they answer different questions. Rule 4.33 asks whether there has been a three-year gap with no significant advance in the lawsuit. Rule 4.31 asks whether the overall delay has gone too far and has unfairly harmed another party’s ability to defend or proceed with the case.
Rule 4.33: The Mandatory “Drop Dead” Rule
A party may bring an application under Rule 4.33 when three or more years have passed without a significant advance in an action. If that threshold is met, it is mandatory for the court to dismiss the action, unless one of the recognized exceptions applies. Those exceptions include situations where the action was stayed or adjourned by court order, where the delay was addressed in a litigation plan, or where the applicant participated in steps after the delay in a way that supports allowing the action to continue.
Rule 4.31: A More Flexible Tool for Delay
Rule 4.31 takes a more flexible approach than the “drop dead” rule. Instead of focusing on whether there has been a specific three-year gap, it asks a broader question: has the delay gone on long enough, and caused enough harm, that the court should step in?
Under Rule 4.31(1) of the Alberta Rules of Court, the court may dismiss all or part of a claim if delay has caused significant prejudice to another party. The court also has other options. Rather than dismissing the claim outright, it can make a procedural order or another order that is appropriate in the circumstances.
Rule 4.31(2) adds an important shortcut. If the court finds that the delay is both inordinate and inexcusable, significant prejudice is presumed. In other words, once the delay is serious enough and there is no good explanation for it, the party bringing the application does not always have to prove every detail of the harm caused by the delay.
Examples of prejudice that have been considered by the court include litigation prejudice, such as fading memories, unavailability of a ‘star witness,’ and the loss of documents due to the passage of time (see Humphreys v Trebilcock, 2017 ABCA 116 at paras 166 to 188). Prejudice also includes non-litigation prejudice, such as the reputational and business harms of outstanding litigation (ibidat paras 178 and 179), though these harms are more difficult to prove (see Transamerica Life Canada v Oakwood Associates Advisory Group Ltd, 2019 ABCA 276, at paras 44-45).
Differences between R 4.33 and R 4.31
There are several key differences between the delay rules.
Mandatory versus discretionary: Rule 4.33 is mandatory. If three years have passed without a significant step forward in the lawsuit, and no exception applies, the court must dismiss the action. In other words, once the rule is triggered, the court has very little room to manoeuvre. Rule 4.31, on the other hand, gives the court discretion. Even if there has been delay and even if that delay has caused significant prejudice, the court can decide what remedy makes sense. That might mean dismissing the claim, but it could also mean making a procedural order to move the matter forward.
Relevant timeline: Rule 4.33 is all about the clock. The key question is whether three or more years have passed without a significant advance in the lawsuit. Each time a meaningful step is taken, the clock may reset. It is focused on whether there has been a three-year period where nothing happened to move the case forward. Rule 4.31 takes a wider view. It does not require a fixed three-year gap. Instead, the court looks at the whole history of the case and asks whether the overall delay has become unfair. This can capture situations where there may not be one single three-year gap, but the cumulative delay has still caused real prejudice to the other party.
Proving prejudice: Under Rule 4.33, the applicant does not need to show that the delay caused harm. If the three-year period with no significant advance is established, that is enough to dismiss the claim (unless an exception applies). Under Rule 4.31, prejudice is central to the analysis. The court must be satisfied that the delay has caused significant prejudice to another party. As noted above, prejudice might include problems within the lawsuit, such as faded memories, missing documents, or unavailable witnesses. It may also include broader practical harm, such as reputational or business consequences caused by having litigation hang over a party for too long.
Which Rule should you use?
If both rules might apply, it is strategic to rely on both in the same application.
Rule 4.33 is powerful because it does not require proof of prejudice. But it also depends on showing a clear three-year gap with no significant advance. If there is a debate about whether a step in the lawsuit counted as a significant advance, the Rule 4.33 application is less certain.
That is where Rule 4.31 can help. Even if the court finds that some steps were taken and Rule 4.33 does not apply, Rule 4.31 may still be available if the overall delay was inordinate, inexcusable, and prejudicial.
Conclusion
Bottom line: Rule 4.33 is the strict “drop dead” rule, while Rule 4.31 is the more flexible delay rule. Rule 4.33 focuses on whether there has been a three-year gap in moving the lawsuit forward. Rule 4.31 looks at the bigger picture and asks whether the delay has become unfair enough to justify court intervention. For that reason, both rules are often considered together when delay becomes an issue in Alberta litigation.
This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.
