Legalviews Personal

The quest to have King’s Bench justices repeal Rule 4.33 continues. As usual, ignoring binding precedent is necessary, but the spotlight of this decision is on one word. Not a word found in the Rule (whose words are ignored). Instead, one word in a few King’s Bench decisions.

The case law says that a defendant who claims there has been a gap of more than three years must show that after something which advances the suit, three or more years must pass with no advancement until the defendant files an application under R. 4.33 to dismiss. But this recent King’s Bench decision says no, that is wrong. Three years’ inaction is not enough to dismiss. If after a full three-year gap with no advancement then a few weeks later something is done to advance the suit, the court cannot dismiss the suit. Supposedly time starts to run all over again, and the defendant must wait another three years. Even if the defendant had nothing to do with that recent advancement, and did not participate or support it.

That is not what the words of R. 4.33 say: “If 3 or more years have passed without a significant advance ...”

This decision contradicts what the case law says (most of it from the Court of Appeal). Any three-year gap before the defendant applies to dismiss the suit, requires dismissal. See Trout Lake Store v. C.I.B.C. (#1) 2003 ABCA 259, 330 AR 379 (¶’s 26, 31, 32, 33); Lanset Cap. Corp. v. Waterloo Geological Consulting 2006 ABCA 77, 380 AR 210 (¶’s 7- 9); Barath v. Schloss 2015 ABQB 332, 617 AR 224 (¶ 11); Ro-Dar Contr. v. Verbeek Sand &c. 2016 ABCA 123, 616 AR 366 (¶ 17); Flock v. McKen (Flock Est.) 2017 ABCA 67, 49 Alta LR(6th) 41 (¶’s 17(3), 22, 24), leave den (SCC 19 Oct ‘17).

Everyone agrees that the three years start running from any act which materially advances the suit, and stops when the defendant files an application to dismiss. Everyone agrees that significant advancement before three years have run bars dismissal. Everyone agrees that there is no time limit for how quickly the defendant must apply to dismiss the suit, unless the defendant takes steps which approve restarting the lawsuit.

So how was this new canard argued? This recent decision says that the advancement of the suit which begins the three years running is called by a few King’s Bench decisions “the last significant advance”. So therefore, if after the three years are complete, something happens which advances the suit, before the defendant’s motion is filed, then this brand-new advance becomes the last advance. So no longer is the advance which was a little over three years old, the last. In other words, to bar any use of R. 4.33, ever, the plaintiff can make a late advance. It need not be during the three years. It can be later, so long as it is done before the defendant files his motion to dismiss. That ignores the wording of the Rule, contradicts binding case law cited above, replaces R. 4.33 with a foot race between the parties, and makes no sense at all.

Furthermore, this odd suggestion is not even reliable English. Maybe at one time, the words “last” and “latest”, when used strictly, had different meanings. But Fowler says that “many idioms militate against” that distinction (Fowler’s Modern English Usage 2d ed. rev., 1974 p. 324). The word “last” can mean coming at the end, but it can also mean “next before some expressed or implied point of time”, or “the most recent”, or the one recently mentioned (Concise Oxford Dictionary 6th ed. 1964 p. 681). Speaking of most recent, the New Shorter Oxford Dictionary p. 1536 (4th ed. 1993) contains many examples of all those different usages for the word “last”. So the word “last” can mean different things, depending on the time as of which the word is being used.

Think of modern everyday speech. If a person refers to “my last good meal”, he means the most recent good meal; he is not announcing that he will be hanged in the morning and never again eat good food. If someone says “The last time I looked, it was still not closing time”, she does not mean that she will never look at her watch ever again. It used to be well known that it was an offence for an English pub to fill an order after closing time. The bartender calls out just before then, “Last calls.” But if the pub opens and closes the next day, does the previous night’s offence of late service disappear? Will there never be an offence because every future evening there is a closing hour during the entire life of the pub, so there is never a “last call”?

The recent decision is 2114223 Alta. v. Lougheed 2026 ABKB 78 (Feb 4).

– Hon. J.E. Côté

ONE-WORD DEVICE