Prosecute Your Cases With Diligence, or Risk Losing Them Altogether

Droog v Hamilton concerned an action where, by May 22, 2021, a period of three years had passed without a significant advance. The deadline fell on a Saturday. The appellants took their next procedural step on the following business day, Tuesday, May 25, 2021, by serving an affidavit of records. That same day, the respondents applied to dismiss the action for long delay under Rule 4.33 of the Alberta Rules of Court.

Following two adjournments, the parties consented to an order permitting the respondents to amend their application to include a request for summary dismissal as an alternative ground. The appellants did not object to this course of action. The application was granted by an applications judge, whose decision to dismiss the action for delay was subsequently upheld by a chambers judge, leading to the present appeal.

Court’s Analysis

The Court of Appeal of Alberta affirmed the dismissal, addressing two primary arguments from the appellants: first, that the three-year delay period ought to have been extended because its final day fell on a weekend; and second, that the respondents’ subsequent procedural steps justified the continuation of the action.

The Court found the first argument unpersuasive. It held that the long delay rule is framed in absolute terms: dismissal is mandatory if three or more years pass without a significant advance. The appellants contended that section 22(2) of the Interpretation Act should apply to extend the deadline to the next business day. The Court rejected this, reasoning that the provision only applies when an action must be performed at a specific office that is closed. Here, modern service rules permitted service by email or facsimile at any time, including on the Saturday deadline. The appellants were not prevented from acting within the prescribed period, and thus no extension was warranted.

The Court also dismissed the appellants' second argument. The appellants submitted that by amending their application to seek summary dismissal in the alternative, the respondents had participated in the action in a manner that justified its continuation under the exception in Rule 4.33(2)(b). The Court of Appeal deferred to the chambers judge's reasonable exercise of discretion, noting that scheduling an alternative application was an efficient use of judicial resources and did not constitute a waiver of the delay.

Practice Implications

This decision serves as a stringent reminder of the unforgiving nature of Alberta's long delay rule. The key takeaways for legal practitioners are:

1. Rule 4.33 is a Terminal Provision: The judgment reinforces that Rule 4.33 is not a procedural guideline but a mandatory rule that will be strictly enforced. The courts have little appetite for excuses for inactivity.
2. No "Next Business Day" Rule for Long Delay: The Court has clarified that deadlines calculated in years are not subject to extension simply because they end on a weekend, particularly when 24/7 electronic service methods are available. Counsel cannot rely on office closures to excuse a failure to act.
3. Procedural Efficiency is Encouraged: A defendant will not be penalized for taking efficient procedural steps, such as combining a delay application with a "fallback" application for summary dismissal. Such actions will not be interpreted as a waiver that breathes new life into a dormant file.

This case imposes a standard of exceptional diligence. The responsibility to advance an action lies squarely with the plaintiff. Practitioners must implement vigilant file monitoring and calendaring systems to avoid the severe consequences of delay.

Conclusion

The ruling in Droog v Hamilton delivers a definitive statement on the judiciary's low tolerance for litigation delay. It establishes a clear and unforgiving standard: the clock on Rule 4.33 does not pause for weekends or holidays when electronic service is an option. The decision effectively mandates that legal professionals implement robust, proactive file management systems that leave no room for error.

Ultimately, this case is a powerful cautionary tale. The Court has signaled that the era of relying on procedural leniency or creative interpretations to excuse inactivity is over. The onus is entirely on the plaintiff to move a case forward, and failure to do so within the prescribed three-year period will, with few exceptions, result in the irreversible dismissal of the action.

This decision underscores the critical importance of diligent file management and the severe consequences of litigation delay. If you or your business are involved in a legal dispute and require guidance on procedural obligations, risk management, or strategies for advancing or defending a claim, please contact Mohit Malhotra in Calgary, Jeremy Taylor in Edmonton or any member of Field Law’s Litigation Group for guidance and assistance in this area.

Link to decision: Droog v Hamilton, 2025 ABCA 228