Executive Summary: Key Legal and Evidentiary Issues

• The appeal concerned a chambers justice’s decision allowing an appeal from an applications judge’s dismissal of an action under Rule 4.33 of the Alberta Rules of Court.

• The Court of Appeal confirmed that the interpretation of Rule 4.33 is a question of law reviewed for correctness, while the application of that rule to the facts is a mixed question of fact and law reviewed for palpable and overriding error, absent an extricable error of law.

• The chambers justice applied a functional approach to Rule 4.33, focusing on whether the action had “truly died,” and the Court of Appeal held that this approach was consistent with prior authority and entitled to deference on its application to the facts.

• In light of the action’s significant degree of complexity and voluminous production, the chambers justice found that providing electronic copies of the documents listed in the 126-page Affidavit of Records, which completed the defendants’ discovery of records and were first provided to Kallis at that time, significantly advanced the action.

• The Court rejected the appellants’ assertion that provision of documents listed in an Affidavit of Records can never constitute a significant advance for Rule 4.33 purposes, while noting that in appropriate circumstances a court may find that a non-genuine request made only to avoid Rule 4.33 does not significantly advance an action.

• The appeal was dismissed; paragraphs 2 to 5 of the chambers justice’s order were set aside because the parties could no longer comply with them due to the passage of time, and counsel were directed either to jointly formulate a litigation plan within 60 days or return to the Court of King’s Bench for a new litigation plan. The decision does not state any monetary amount ordered in favour of any party.

Facts and procedural background
The case is an appeal in the Court of Appeal of Alberta in Kallis v Schiffner, 2026 ABCA 11, arising from an order of the Honourable Justice C.B. Thompson dated July 23, 2025, in action 1401-04781 (2025 ABKB 443). The respondent is Michael Kallis, and the appellants are Randy Schiffner, Slade Schiffner, Brandon Schiffner, Elayne Schiffner and Cameron Schiffner. The appeal was heard in Calgary on January 7, 2026, before Justices Crighton, Fagnan and Grosse, and the memorandum of judgment was filed on January 15, 2026.
An applications judge had dismissed the action under Rule 4.33 of the Alberta Rules of Court. A chambers justice then granted an appeal from that dismissal. The memorandum records that a chambers justice “granted an appeal of an applications judge’s order dismissing an action pursuant to Rule 4.33.”
As part of the litigation, the defendants served a 126-page Affidavit of Records. The chambers justice noted that the action involved a significant degree of complexity and that the production was voluminous. At a later point, electronic copies of the documents listed in the Affidavit of Records were provided. The chambers justice found that this was the first time copies of the Schiffner records were provided to Kallis, despite the defendants’ lawyer having represented shortly before that he would provide a “stick,” and that providing the actual records completed the Schiffners’ discovery of records in the case.
The chambers justice also considered, as part of the context, that a partial summary judgment application had been set in January 2020 for a June 2020 special chambers hearing, that the hearing was derailed by court scheduling restrictions due to COVID, and that the partial summary judgment application was still extant at the time the documents were requested and provided.

Legal framework on Rule 4.33
The Court of Appeal stated that the interpretation of Rule 4.33 raises a question of law which is reviewed for correctness. It further stated that the application of the law on Rule 4.33 to a set of facts is generally a finding of mixed fact and law, reviewable for palpable and overriding error absent some extricable error of law.
The Court reaffirmed that whether an action has been “significantly advanced” requires an assessment and measurement of what happened in the action during the alleged period of delay, in light of the facts and the objectives of the Rules of Court. It noted that a chambers justice’s conclusion on that issue is entitled to deference.
The chambers justice adopted what the Court described as a functional approach under Rule 4.33 rather than a formulistic approach. She observed that each case is unique and that the content, value, and timing of the step said to “reset the clock” must be assessed within the context of that lawsuit. She also noted that Rule 4.33 is not designed to regulate the efficient prosecution of actions, but rather to prune out actions that have truly died.

Application of the functional approach to the records production
In considering the Affidavit of Records and related production, the chambers justice found that an affidavit of records may or may not significantly advance an action under the functional approach. She noted that Alberta courts have held that the provision or delivery of documents, in and of itself, may or may not materially advance an action, and referred to decisions recognizing that modern litigation often involves providing multiple records in electronic form rather than appearing in person to review paper copies.
The chambers justice analyzed the context and complexity of this action to decide whether providing electronic copies of the documents listed in the Affidavit of Records constituted a significant advance. She considered the nature of the litigation and factors adding to its complexity, the description of the records listed in the 126-page Affidavit of Records, and the nature, value, quality, genuineness, and timing of what had occurred.
She found that the action involved a significant degree of complexity and that the production was voluminous. She also found that it was the first time copies of the Schiffners’ records were provided to Kallis, despite earlier representation that a “stick” would be provided, and that provision of the actual records completed the Schiffners’ discovery of records in the case.
The chambers justice further considered the partial summary judgment application set in January 2020 for a June 2020 special chambers hearing, which was derailed by COVID-related court scheduling restrictions, and noted that the application was extant when the documents were requested and provided. She found that the timing of the electronic document provision did not suggest a last-minute strategic activity to save an action about to be dismissed and addressed the argument that mischief might generally occur if last-minute provision of documents is found to significantly advance an action.
Ultimately, she concluded that providing the documents increased by a measurable degree the likelihood that either the parties or a court would have sufficient information and be in a better position to rationally assess the merits of the parties’ positions and either settle or adjudicate the action.

Appellate conclusions and outcome
The Court of Appeal held that the chambers justice’s application of Rule 4.33 to the particular facts was entitled to deference. It stated that she reviewed the relevant factors and drew reasonable conclusions.
The Court characterized the appellants’ argument as amounting to an assertion that provision of documents listed in an Affidavit of Records can never constitute a significant advance for the purposes of Rule 4.33 and stated that this assertion does not align with the functional approach. It noted that it is open to a court to find that such a step does not significantly advance an action for various reasons, giving as an example a finding that a request for documents was not genuine and was made to avoid the consequences of Rule 4.33.
The Court also observed that it did not endorse the chambers justice’s broad statement that a record is not produced by disclosing it in an Affidavit of Records and making the records available for inspection, and stated that it was not necessary in this case to determine when “production” occurs in all cases for purposes of a Rule 4.33 analysis.
The Court concluded that the chambers justice applied the functional approach to determine whether, in the context of this litigation, the action had truly died and that there was no reviewable error in her interpretation of Rule 4.33 or its application in the circumstances.
The Court dismissed the appeal. It held that the parties could not comply with the procedural directions in paragraphs 2 to 5 of the chambers justice’s order due to the passage of time and set those paragraphs aside. It directed counsel to return to the Court of King’s Bench for a new litigation plan if they are unable to jointly formulate one within 60 days of the decision. The memorandum does not state any amount ordered or awarded in favour of any party.