Dismissal for long delay confirmed after steps in related action fail the significant advance test
Gordon Ryley Travis lost two personal injury cases because his former lawyer, Toby D. Schultz, let them sit too long. When Travis sued Schultz for negligence, the same thing happened to that case too.
The Court of King’s Bench of Alberta upheld the dismissal for long delay of Travis’ negligence claim after finding the action had not advanced in more than three years. The court dismissed the appeal, leaving Travis to pay a $20,000 costs award, with appeal costs still to be determined.
Triggering a dismissal for long delay under Rule 4.33
Under Rule 4.33 of the Alberta Rules of Court, a dismissal for long delay is mandatory when three or more years pass without a significant advance in an action. This Rule is sometimes called the “drop dead rule” because courts have no discretion to overlook it. As such, the merits of the claim and whether a party has legal representation are both irrelevant.
However, there are two exceptions under Rule 4.33(2) that can prevent a dismissal:
- the action was stayed or adjourned by court order, or the delay falls within a litigation plan
- after the delay period, the applicant participated in proceedings to a degree that, in the court’s opinion, warrants the action continuing
In Travis v. Schultz, 2026 ABKB 693, the court found neither exception applied.
What counts as a significant advance in Alberta
The last step taken in Travis’ negligence claim against Schultz (the Schultz Action) was the service of an expert report on September 14, 2021. Schultz filed his dismissal for long delay application on November 8, 2024, more than three years later.
A significant advance is a step that moves litigation toward resolution in an essential way. The assessment is functional, as courts look at substance and effect, not what a step was labelled or how it was filed. This decision cited three cases where the Alberta Court of Appeal confirmed this approach.
In practical terms:
- what matters are substance and effect, and not the form of the step taken
- a step must move the specific action forward, and not just generate activity in the file
Whether steps in a related action advance a case
Travis argued that the activity in a parallel proceeding (the Denis Action) should count as advancing his case against Schultz. The Denis Action was a fee recovery claim by Jonathan B. Denis, Travis’ original lawyer before Schultz, against Schultz directly. Notably, Travis was not a party to that proceeding.
He pointed to two events:
- his response to a consolidation application filed in March 2022
- the settlement of the Denis Action by Consent Dismissal Order on October 30, 2022
However, the court rejected both. Citing Center Street Limited Partnership v. Nuera Platinum Construction Ltd, 2025 ABCA 290, the court stated that the steps in a related action can only count when that action is potentially dispositive of the case at hand.
Here, the court held that the Denis Action was not. Its resolution could not decide any issue in the Schultz Action, and the settlement only removed a possible deduction from a future damages award. In short, nothing in the Denis Action moved Travis any closer to winning against Schultz.
Bookmark Canadian Lawyer’s Personal Injury page for more news, articles, and legal updates in this practice area.
