4.31: Application to deal with delay
4.33: Dismissal for long delay

Case Summary

This was an Application to strike a claim for sexual assault for long delay. Master Schlosser began with a Rule 4.33 analysis and considered whether there had been a three-year period without a significant advance in the Action. When the Action began in 2014, an issue arose as to whether or not it was barred by limitations. In 2017, An Act to Remove Barriers for Survivors of Sexual and Domestic Violence, SA 2017, c 7 was proclaimed, which amended the Limitations Act, RSA 2000, c L-12. The amendment was retroactive and removed any and every limitation period for claims for sexual assault. The Applicant argued that the change in law did not count as a significant advance in the Action, as the Respondent did not intentionally or deliberately bring it about. Master Schlosser found that neither the language of Rule 4.33 or the applicable case law required the agency of the Plaintiff in relying on an advancing event. The Rule 4.33 Application was dismissed.

Master Schlosser then proceeded with a Rule 4.31 analysis and considered whether there had been an inordinate and inexcusable delay. The Court observed that the Action had effectively been stalled pending determination of the limitations issue, and further that the Applicant had not, but could have, moved to strike the Action before the change in legislation. Master Schlosser found that the delay was excusable and dismissed the Rule 4.31 Application.

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