The Plaintiff commenced a Civil Action against a Police Officer for head injuries sustained during an arrest. According to the Defendant, the last significant step in the proceeding was a Pre-Trial Conference which took place on October 10, 2006. The Plaintiff was later arrested and held in custody for murder in British Columbia in 2009.

The issue was whether the Civil Action should be Dismissed in accordance with Rule 4.33. The Court considered the issues of whether the Plaintiff was mentally fit to instruct counsel, as well as whether it was physically possible for him to stand Trial (being that he was in custody in British Columbia). After reviewing the Plaintiff’s psychiatric report, Master Breitkreuz determined that the Plaintiff was likely fit to instruct counsel; however, he was not physically able to do so as long as he was imprisoned in British Columbia. The Master then determined that the Plaintiffs ability to advance this Action would depend almost entirely on his being found not guilty of murder. Under the circumstances, Master Breitkreuz made the following Order:

… that if the plaintiff is acquitted of the murder charge he will have 45 days after the expiry of the appeal period, to take the next significant step in these proceedings. If he is convicted of the murder charge, this action will be dismissed upon the expiry of the appeal period.

In dealing with the strict requirements imposed on the Court by the new drop dead rule, Master Breitkreuz quoted 4.33(2) and made the following comment:

Rule 4.33(2) provides as follows:

(2) If the Court refuses an application to dismiss an action for delay, the Court may still make whatever procedural order it considers appropriate.

It is apparent to me that this sub-rule is intended to moderate the harsh effect of 4.33(1).