Executive Summary: Key Legal and Evidentiary Issues

• Chambers judge failed to assess the legal impact of the November 18, 2022 adjournment, which was not caused by the appellant.

• The application to set the matter for trial was ruled not to have significantly advanced the action under Rule 4.33.

• Respondent’s counsel’s unavailability delayed proceedings past the January 3, 2023 Rule 4.33 deadline.

• Ministerial Order 27/2020, which extended timelines due to COVID-19, was not factored into the chambers decision.

• Appellant, a self-represented litigant, relied on assurances from the court and opposing counsel that his application would proceed unchanged.

• Appeal court found relevant facts were overlooked, warranting reinstatement of the action.

Background and procedural history

On August 31, 2018, Csaba Takacs filed a Statement of Claim against the International Union of Operating Engineers, Local 955, Pension Trust Fund. He alleged the respondent wrongfully failed to pay out the full value of his pension after he left employment and stopped paying union dues. An Amended Statement of Claim was filed on February 28, 2019. The respondent filed a Statement of Defence on March 7, 2019. Takacs’ Affidavit of Records was filed by August 20, 2019, at the latest. The respondent’s Affidavit of Records followed on October 18, 2019.

No further steps occurred in the litigation until Takacs filed an application on September 29, 2022 to set the matter down for trial pursuant to Rule 8.5. This application was originally returnable on November 28, 2022. However, the respondent applied for and received an adjournment on November 18, 2022 due to counsel unavailability. The application was rescheduled to January 18, 2023, at which time it was dismissed.

Takacs then filed an application on February 28, 2023 for a judicial dispute resolution (JDR), returnable April 5, 2023. The respondent cross-applied for dismissal under Rule 4.33 for long delay. The parties agreed that January 3, 2023 was the "drop dead" date under Rule 4.33, accounting for the three-year delay period and a 75-day COVID-related suspension under Ministerial Order 27/2020.

Chambers decision and appeal

On April 5, 2023, the chambers justice dismissed Takacs’ action under Rule 4.33. He ruled that the application to set the matter for trial did not significantly advance the action, as it did not clarify issues, aid negotiations, improve the court’s adjudicative position, or enhance factual understanding. The JDR application, filed after the drop-dead date, was found incapable of reviving the action.

Takacs appealed, arguing that the chambers justice failed to consider that, had his application been heard on November 28, 2022 as scheduled, he might have had time to take further action before January 3, 2023. The Court of Appeal agreed, finding that the chambers justice did not account for several important facts: the respondent’s request for adjournment, the court’s assurances that the application would proceed unchanged, and the effect these had on the self-represented appellant’s ability to act.

The Court noted that the November 18, 2022 adjournment resulted from the respondent's counsel's unavailability. At the adjournment hearing, the court explicitly stated that everything except the date would remain the same. This reinforced Takacs’ belief that no further action was required until January 18. The Court of Appeal acknowledged that while Takacs bore responsibility for earlier inaction, the treatment of the adjournment effectively deprived him of the opportunity to act in the final weeks before the Rule 4.33 deadline.

Outcome

The Alberta Court of Appeal allowed the appeal and set aside the dismissal. The action was reinstated as of January 8, 2025. The Court emphasized that this decision did not address the merits of the underlying claim. It noted that two years and nine months had passed without a significant advance and explicitly preserved the respondent’s ability to bring another Rule 4.33 application if justified. The appellant’s JDR application, filed February 28, 2023, remained active and could be rescheduled in the Court of King’s Bench.