Two recent Alberta Court of Appeal decisions mark an important reaffirmation of Rule 4.33 of the Alberta Rules of Court. In Kallis v Schiffner, 2026 ABCA 11, the Alberta Court of Appeal solidifies the functional approach to Rule 4.33. Whereas McLeod v McLeod, 2026 ABCA 41 serves as a reminder that only litigation steps that meaningfully advance an action will save a claim from dismissal. 

Kallis v Schiffner, 2026 ABCA 11

Background

Michael Kallis appealed the dismissal of his $108 million bankruptcy action for long delay under Rule 4.33. The action was commenced on May 2, 2014. In August and September 2017, the parties exchanged Affidavits of Records. Schiffner served their Affidavit of Records on September 15, 2017, listing numerous producible documents, but did not provide actual copies at that time. On October 31, 2018, they delivered electronic copies of the documents listed in their 126-page Affidavit of Records for the first time.

On August 5, 2021, Schiffner applied under Rule 4.33 to dismiss the action for long delay, arguing that the October 31, 2018 production did not constitute a significant advance. The Applications Judge dismissed the action, stating providing copies of documents already disclosed was merely procedural compliance under Rule 5.14 and did not materially advance the action.

On appeal to the Court of King’s Bench, the chambers justice overturned the decision, stating when applying the functional approach, the first-time delivery of the records materially advanced the case by completing discovery obligations and improving the parties’ ability to assess the merits.

Court of Appeal Decision

The Alberta Court of Appeal upheld the decision, rejecting the appellants’ argument that delivery of documents listed in an Affidavit of Records can never constitute a significant advance. It held that the chambers justice properly applied the functional approach and reasonably concluded that completing documentary discovery and providing the parties with the information necessary to assess the merits meaningfully advanced the action and was not a tactical last-minute step. 

The Court reaffirmed that whether document production significantly advances an action depends on context, including: 

1. the value of the documents in the litigation;
2. whether production moves the action closer to trial;
3. whether it is necessary to advance the action;
4. whether it allows a party to reconsider its position; and
5. whether it provides a basis for early settlement discussions.

McLeod v McLeod, 2026 ABCA 41

Background

The Appellant owned trucking equipment used in an agricultural transportation company.

In 2013, the Appellant commenced an action, alleging their son wrongfully transferred ownership of the trucking equipment to himself, seeking recovery of the equipment or damages in the amount of its value and related profits. 

There were several procedural steps which occurred early in the litigation:

·      Statements of Claim and Defence were exchanged in 2013–2014;

·      Affidavits of Records were exchanged in 2014;

·      Questioning occurred in 2015; and

·      Follow-up questioning on undertakings took place in 2018.

In May 2019, the parties obtained a Consent Order requiring the Registrar of Motor Vehicles to produce vehicle registration records. Counsel later delivered the records in a letter dated July 17, 2019. The Appellant’s counsel withdrew from the case in 2020. In 2022, new counsel submitted an Application for a Procedural Order. 

As no meaningful litigation steps were taken for several years, the Respondent successfully applied to dismiss the action for long delay under Rule 4.33 of the Alberta Rules of Court. This was subsequently appealed.

The Issue on Appeal

The Alberta Court of Appeal examined whether producing the July 2019 letter and associated records constituted a “significant advance” sufficient to reset the Rule 4.33 clock.

The Decision

The Alberta Court of Appeal dismissed the appeal. The Court confirmed the Registrar’s records provided in July 2019 contained no new information. Further, all documents had already been exchanged years earlier through the Affidavit of Records process. Lastly, the accompanying letter showed counsel was still seeking instructions regarding Judicial Dispute Resolution, and no further steps were taken. 

As both the applications judge and chambers Justice found, the delivery of duplicate documents did not move the litigation closer to trial or resolution. Importantly, the Courts rejected the Appellants’ central argument that compliance with a court-ordered step must automatically qualify as a significant advance.

The Court confirmed the substance of the step matters, not the fact that it was required.

Kallis versus McLeod – The Different Outcomes

In Kallis, records were listed in an Affidavit of Records produced in 2017, but the records themselves were not disclosed at that time. A year later, in 2018, the records were actually produced and the Court of Appeal affirmed that production of the listed documents was a significant step. The completion of discovery steps under 5.14 clarified the issues and assisted the matter moving forward.

In McLeod the records were obtained from the Registrar of Motor Vehicles pursuant to a Consent Order, but the records did not disclose any new information to help clarify issues. Similar to Kallis where the information was disclosed pursuant to the Rules, the information in McLeod was obtained in compliance with a court order. However, in McLeod the Court maintained the important factor was whether the action was advanced, not the procedural steps.

While the steps in Kallis and McLeod share similar aspects with respect to the information being disclosed in compliance with required steps, the most important consideration is whether the information provided advances the action.

Key Takeaways

A significant advance requires real progress toward resolution. The fact a step is required to comply with the Rules or another Court Order is immaterial if the step does not narrow the issues or otherwise advance the matter.