The Defendants applied to have a sexual assault Action struck for long delay pursuant to Rule 4.33. One of the Plaintiffs sought an adjournment of the Application on the basis that part of the reason for the delay was that she was so emotionally damaged that she was disabled from being able to proceed with the lawsuit. The adjournment was meant to provide her time to pursue expert evidence to prove that allegation and to properly oppose the Application to strike.

The Court confirmed that Rule 1.2 does not place an onus on the Defendant to take active steps to move an Action along and went on to consider whether disability or inability to instruct counsel is a valid basis on which to oppose an Application to strike under Rule 4.33.

The Court found that to date, disability had not been accepted as a basis for denying an Application to dismiss under Rule 4.33 where all of the necessary elements to strike were established. However, the Court also emphasized that the cases where disability had been advanced as a defence to the Application, the alleged disability had not been proven to the required standard on the Application. This suggested that disability may be a relevant consideration if proven. In fact, the Court found no Court of Appeal authority which stated that disability is not an answer, or a potential answer, to a Rule 4.33 Application.

While the Court confirmed that Rule 4.33(10) prohibits a Court from using its discretion provided in Rule 13.5 to extend the Rule 4.33 time deadlines, the Court considered the fact that under section 5 of the Limitations Act, RSA 2000, c L-12 (the “Limitations Act”), disability extends a limitation period during a period of disability, or does away with the limitation period for someone who is permanently disabled.

Justice Graesser held that this provided a basis to have Rule 4.33 yield to the same principle. Ultimately, His Lordship found that a disabled litigant may raise disability as an answer to delay under Rule 4.33 where the litigant provides evidence establishing disability of the sort required to extend limitation periods under the Limitations Act. The standard of proof of disability would be on a balance of probabilities.

However, the Court did not go so far as to offer any comments on the nature or extent of disability that may justify delay. The test under the Limitations Act is being “unable to make reasonable judgements in respect of matters relating to a claim” (section 1(h)(ii)). The Court stated that this “would seem to be the appropriate test to apply” but left that it open for future development through the case law.

The Court granted the adjournment of the Application to strike to allow the Plaintiff to gather the necessary evidence to attempt to establish her disability to the extent necessary to defeat the Rule 4.33 Application.