By: Mackenzie Coleman, University of Alberta Law Student
Palamar v Palamar, a 2025 Manitoba Court of King’s Bench decision, contemplates the use of the “Drop-Dead Rule” in the context of family litigation.[1] The “Drop-Dead Rule”, Rule 24.04 of the Court of King’s Bench Rules, “requires courts to dismiss actions after a three-year period elapses with no significant advances in the litigation”.[2]
In Palamar, there was a three-year delay with no significant advances to the proceedings and, therefore, the action was dismissed. Despite most aspects of the litigation coming to an end, the parties were still allowed to apply for a divorce (as both parties want one) and litigate matters concerning a jointly-owned building given that a lien was registered against the building.[3] The parties were also permitted to litigate on potential child support arrears given that this is in the best interests of the children.
The Drop-Deal Rule used in the family law context encourages promptness but has some risk of unfairness. Palamar encourages promptness by ensuring cases do not remain stagnant. This prevents undue delays and promotes judicial efficiency. However, there is also the risk of unfairness. Delays in family law matters are not always a result of inaction, but may be because of property division, child support, or divorce settlements. The Court of King’s Bench in Ruchotzke v Ruchotzke stated that the Drop-Dead Rule may be harmful in family litigation “when the parties need a divorce, where the parties are joint owners of property, and/or where the parties are both shareholders in certain corporations”.[4] As seen in Palamar, the Court mitigated these issues by allowing certain issues, such as divorce and child support arrears, to proceed despite the general dismissal.
Courts across the country are adopting a more vigorous approach to addressing delays in the civil litigation process. In Alberta, for example, in 2017, the Alberta Court of Appeal considered Rules 4.31 (dealing with “inordinate delay”) and 4.33 (the “Drop-Read Rule”) in Humphreys v Trebilcock.[5] Since 2017, Humphreys has been cited in 35 decisions in Alberta alone.[6] Alberta uses a functional test to determine if the action has progressed in the past three years. The test analyzes “the whole picture of what transpired in the three-year period, framed by the real issues in dispute, and viewed through a lens trained on a qualitative assessment. This necessarily involves assessing various factors including the nature, value and quality, genuineness, timing, and in certain circumstances, the outcome of what occurred”.[7] In order to advance an action, efforts need to be paired with meaningful outcomes.[8] Condemning litigation delays is consistent with broader policy positions by Canadian courts, including access to justice.[9] By “cracking down on chronic delay, the courts are promoting, rather than hindering, much needed access to justice for civil litigants”.[10]
Self-represented litigants are expected to comply with the Rules of Court as well. Although “courts will consider the special challenges that these litigants face, courts cannot ignore clear noncompliance with the Rules, especially when the opposing party has been prejudiced. Explanations that merely seek forgiveness for delay because a party is self-represented are unacceptable”.[11] Equitable treatment of self-represented litigants is an important access to justice issue. Despite being self-represented, and the access to justice considerations attached to being self-represented, the Rules of Court apply. This is due to key guiding principles of the Rules of Court. Without self-represented litigants complying, there may be significant prejudice to the opposing party. Moreover, compliance is important for the orderly administration of justice. To accommodate self-represented litigants, courts can offer guidance on correcting procedural errors, provide clear plain-language explanations of legal procedures, and offer self-represented litigants opportunities to remedy noncompliance, if possible, without causing undue hardship to the opposing party.
As the saying goes, “justice delayed is justice denied”. Justice must be timely. Addressing these delays, as the Court did in Palamar, can assist in ensuring access to justice for all.
[1] Palamar v Palamar, 2025 MBKB 7.
[2] Ibid at para 1.
[3] Ibid at para 3.
[4] Ruchotzke v Ruchotzke, 2022 MBQB 153 at paras 32 to 35.
[5] Humphreys v Trebilcock (“Humphreys”) 2017 ABCA 116.
[6] The Canadian Bar Association, “Not Letting Sleeping Dogs Lie – The Dangers of Litigation Delay”, online: < https://www.cba-alberta.org/Publications-Resources/Resources/Law-Matters/Law-Matters-Fall-2018/Not-Letting-Sleeping-Dogs-Lie-–-The-Dangers-of-Lit>.
[7] Delver v Gladue, 2019 ABCA 54 at para 7.
[8] Michael Gaber, “The Alberta Court of Appeal adopts a Pragmatic Approach to the Rules of Court Drop Dead Rule” (7 June 2019), online: < https://www.blg.com/en/insights/2019/06/the-alberta-court-of-appeal-adopts-a-pragmatic-approach-to-the-rules-of-court-drop-dead-rule>.
[9] Supra, note 9.
[10] Ibid.
[11] David Tupper and Fauziya Issa, “Not Above the Rules: Alberta Court of Appeal Dismisses Self-Represented Action for Delay” (5 June 2019), online: < https://www.blakes.com/insights/not-above-the-rules-alberta-court-of-appeal-dismis/>.