The Plaintiff commenced an Action against his doctor and his local hospital, claiming that he had been misdiagnosed with multiple sclerosis by the Defendant physicians, and the treatment of steroids and other drugs had caused him to become addicted and homeless. The Claim was commenced in 2001, Questioning was completed in 2009 and a Pre-Trial Conference was held in 2010. A proposed Litigation Plan respecting the exchange of expert’s reports in preparation for Trial was prepared in 2011, and Plaintiff’s counsel filed a Notice of Withdrawal in December of 2011. The Plaintiff did not obtain further counsel. The Defendants applied to dismiss the Action for delay under Rule 4.33.

Master Schlosser considered whether the incapacity of the Plaintiff might suspend the calculation of time under Rule 4.33, or whether Rule 15.6 could be invoked to prevent injustice. The Plaintiff had filed an Affidavit, but did not serve it on the Defendants and Master Schlosser discovered the Affidavit on file when drafting the Decision for the Application. Master Schlosser allowed Defendants’ counsel the opportunity to respond to the Affidavit noting that, technically the direction was not compliant with Rule 6.6. Master Schlosser relied upon the Affidavit pursuant to the discretion afforded to the Court in Rule 6.6(3).

Master Schlosser observed that transitional Rule 15.4 was in effect until November 1, 2013 when Rule 4.33 replaced it. Rule 4.33 now requires that an Action must have a “significant advance” within three years or the Action will be dismissed; “things” or “steps” are no longer needed. Master Schlosser noted that the issue in this case was whether it would be appropriate to apply the five year drop-dead period set out in Rule 15.4(1)(b) instead of the three year period in Rule 15.4(1)(a) or 4.33 in order to avoid a “difficulty or injustice” under Rule 15.6. Master Schlosser held that, even if broad equitable powers were read into the words “difficulty or injustice” in Rule 15.6, there were limits; the circumstances of this case were not sufficient for equity to intervene. Master Schlosser noted that the Plaintiff’s issue appeared to be the loss of representation, but this was not the sort of “injustice” contemplated by Rule 15.6. Further, Rules like 4.33 are absolute and mandatory. Rule 4.33 was intended to be a “bright line Rule” subject to the exceptions in 4.33(1)(a)-(d). Master Schlosser noted that such Rules remind us that the privilege to litigate in Court is easily lost. In the result, the Application was allowed and the Plaintiff’s lawsuit was dismissed for long delay. Based on the analysis of Rule 4.33, it was unnecessary to decide whether incapacity might suspend the running of time under Rule 4.33.