More than a decade after implementing the new rules, Alberta courts continue to refine the long delay rule. Justice Mah’s recent Court of King’s Bench decision in 2114223 Alberta Ltd v Lougheed[1] provides useful clarity on Rule 4.33 and the uncertainty about which three‑year period matters when assessing delay.
Although the decision also deals with default judgment (and specifically setting aside default judgment), we focus on the Court’s analysis of Rule 4.33.
Lougheed explains how to identify the correct three‑year window and what type of inactivity will, or will not, trigger mandatory dismissal. For litigators, the message is simple: identifying the correct three‑year period is key.
Overview of Key Facts in Lougheed
Lougheed is an appeal to a Justice from the decision of Applications Judge Birkett.
Justice Mah succinctly summarizes the facts in their decision. For our purposes, the key facts are:
- The defendant, Mr. Lougheed, was questioned in October 2015 and responded to undertakings in 2016.
- Lougheed’s counsel withdrew in 2017.
- The plaintiffs’ counsel attempted to continue Mr. Lougheed’s questioning in 2020, attempting to serve a Notice of Appointment at what was believed to be his residence.
- Lougheed did not attend questioning, and so the plaintiffs applied for a declaration of contempt and for an order to strike Mr. Lougheed’s Statement of Defence.
- The plaintiffs’ application was granted ex parte and Mr. Lougheed’s defence was struck on March 1, 2021.
- Years later, on October 16, 2024, the plaintiffs applied for (by ex parte desk application) and were granted Default Judgment under Rule 3.37.
- On February 20, 2025, Mr. Lougheed learned of the Default Judgment after his employer was served with a garnishee summons.
- Lougheed retained counsel and applied to have the Default Judgment set aside and for the action to be dismissed for long delay.
Judge Birkett granted Mr. Lougheed’s application, and the plaintiffs appealed.
On appeal, Justice Mah upheld setting aside of the default judgment but found that the requirements for dismissal under Rule 4.33 were not satisfied (paras 16 and 68).
Though Justice Mah notes feeling that the long delay issue is the “least controversial” (para 7), the issue has been the subject of many reported decisions, and has never quite fell into “settled law” territory.
Justice Mah makes it clear that there was absolutely a three-year period in which the plaintiffs failed to significantly advance the action (paras 9 and 12). The plaintiffs waited more than three years between striking the defence and applying for default judgment.
Judge Birkett used the striking out date as the starting point for their Rule 4.33 calculation.
Justice Mah found this to be an error which overlooked the plaintiffs obtaining default judgment as being a step that significantly advanced the action. Indeed, as Justice Mah observed, the default judgment not only advanced the action, it put an end to it (para 11).
Thus, the key issue was how to calculate the three‑year period under Rule 4.33.
While the Court of Appeal’s decision in Rahmani v 959630 Alberta Ltd.[2] is frequently cited for its caution against “counting backwards”, Justice Mah emphasized that the Rule itself requires identifying a three‑year period of inactivity ending on the date the Rule 4.33 application is filed (para13).
The focus must therefore be on the most recent three‑year window and not on any inactivity gap in the litigation history.
Justice Mah noted that although Rahmani describes the test as counting forward from the last “significant advance,” the practical reality is that courts must review the three‑year period immediately preceding the application date. In Lougheed, the default judgment obtained in October 2024 was found to be a significant advance that reset the clock. When Mr. Lougheed filed his long‑delay application in 2025, fewer than three years had elapsed, making mandatory dismissal unavailable.
Clarifying the Clock: Key Developments from Lougheed
Justice Mah’s reasons provide valuable guidance for future Rule 4.33 applications.
Most notably, the decision confirms that the only calculation that matters is whether there has been at least three years without significant advance ending on the date of the 4.33 application file date.
Earlier periods of inactivity, regardless of length or severity, do not matter for a 4.33 application (though they may matter for a Rule 4.31 inordinate delay application, which are often brought as alternative relief in 4.33 applications).
This resolves any confusion that earlier case law (discussed below) could be interpreted as allowing a party to argue that any three‑year lull in an action history could ground dismissal for long delay. Lougheed makes clear that this is not the correct approach (para 13).
Although the Court repeated Rahmani’s caution to avoid backward counting, Lougheed effectively acknowledges that, in practice, a backward‑looking review is unavoidable. Counsel must examine the three years leading up to the intended application filing date to determine whether any step has restarted the clock. Justice Mah reconciled this apparent tension by distinguishing the formal wording of the Rule, which describes time running forward from the last advance, from the practical reality of how the assessment must be conducted.
The decision has significant implications for litigation practice. Long‑delay applications now require careful planning and precise timing. A party seeking dismissal must be ready to file as soon as possible when three‑year mark passes.
Does Lougheed Align with the Court of Appeal?
Two Court of Appeal decisions—Ro-Dar Contracting Ltd v Verbeek Sand & Gravel Inc, 2016 ABCA 123, and Flock v Flock Estate, 2017 ABCA 67—also considered Rule 4.33. Both decisions pre-date Rahmani, and both decisions say that “any” three-year period of inactivity will require dismissal of an action (paras 17 in both cases).
The decisions’ reference to “any” three-year period invites the question of whether Lougheed conflicts with the Court of Appeal.
At first blush, that appears to be the case. But in our view, any apparent conflict is resolved by reading down the word “any” to not mean literally any three-year period in the action’s life, but rather any three-year (or longer) period ending with a Rule 4.33 application.
This interpretation of “any” in Ro–Dar and Flock also squares nicely with the implication that counsel should diarize diligently so that “any” critical three year period doesn’t pass by unnoticed. This leads us to best practices.
Takeaways and Best Practices
Following the Lougheed decision, parties and counsel should consider diarizing three years ahead after every step that significantly advances the action. Receive fulsome undertaking responses? Diarize three years from that date. Served with an affidavit of records? Diarize. Diarize any time the file advances significantly.
In addition to thorough diarizing, 4.33 application materials should be drafted in advance of the three-year mark, so they may be filed immediately when the deadline passes.
[1] 2114223 Alberta Ltd v Lougheed, 2026 ABKB 78.
[2] Rahmani v 959630 Alberta Ltd, 2021 ABCA 110.
