The stick matters: Alberta CA confirms sending previously produced records can be a “step”

Applications to dismiss an action for delay under Rule 4.33 of the Alberta Rules of Court often turn on whether the litigation has been “significantly advanced” within the relevant time period.

In Kallis v Schiffner, 2026 ABCA 11, the Alberta Court of Appeal reaffirmed that this determination must be made using a functional approach, and confirmed that, depending on the circumstances, the production of documents listed in an Affidavit of Records may qualify as a significant advance.

Background

The litigation involved a multi-party dispute with damages alleged in excess of $100 million. In July 2025, an applications judge dismissed the action under Rule 4.33 on the basis that it had not been significantly advanced for several years. That decision was overturned by a chambers justice, who concluded that the action had not “truly died.” The defendants appealed to the Alberta Court of Appeal.

The appeal squarely raised the question of whether the delivery of electronic copies of documents listed in an Affidavit of Records could amount to a significant advance capable of resetting the Rule 4.33 clock.

The defendants argued that providing copies of records already disclosed in an Affidavit of Records cannot amount to a “significant advance” under Rule 4.33.

The Court’s functional approach

The Court of Appeal confirmed that the interpretation of Rule 4.33 is guided by a functional approach and is not intended to regulate efficient litigation. Rather, its purpose is to remove actions that have “truly died.”

Whether an action has been significantly advanced requires an assessment of the effect of what occurred during the period of alleged delay, viewed in context and in light of the objectives of the Rules of Court. 

Why production mattered in this case

In rejecting the appeal, the Court of Appeal deferred to the chambers justice’s findings that the action had been meaningfully advanced. Several factors were critical to that conclusion:

• Complexity and volume of records: The litigation involved numerous parties and voluminous records, including a 126-page Affidavit of Records.
• First-time production: This was the first time the plaintiff received actual copies of the defendants’ records.
• Completion of records disclosure: The delivery of the documents effectively completed the defendants’ discovery of records.
• COVID-related disruption: At the time records were requested and produced, a partial summary judgment application was extant but had been derailed by court scheduling restrictions during the COVID-19 pandemic.
• No tactical last-minute conduct: The timing of production did not suggest strategic behaviour designed to artificially avoid dismissal.

Taken together, these factors supported the conclusion that the production of documents measurably increased the likelihood that the parties or the court would be in a position to assess the merits of the case, either for settlement or adjudication.

Importantly, the Court rejected the argument that producing documents listed in an Affidavit of Records can never constitute a significant advance. While it remains open to a court to find that document production is insufficient in other circumstances, particularly where requests are not genuine or are made at the last moment, such determinations are inherently contextual.

In applying the functional approach, the Court of Appeal agreed that the action had not “truly died.” As a result, the appeal was dismissed.

Key takeaways

This decision underscores several important points for litigants facing or considering Rule 4.33 applications:

• There is no categorical rule excluding document production from qualifying as a step.
• The analysis will turn on context, including the nature of the litigation, the scope of production, and its practical impact.
• In complex cases, particularly where disclosure is voluminous and provided for the first time, document production may meaningfully advance an action.
• Rule 4.33 remains focused on pruning actions that have genuinely stalled, not those that continue to move forward in substance.

If you have questions about this decision or about advancing or defending actions under Rule 4.33, please contact Don Dear, K.C., or Alexandra Prada in our Calgary office to discuss next steps.