The Crown sought an Order summarily dismissing the claim pursuant to Rule 7.3. On November 25, 2015, the Plaintiff, Mr. Osman, was remanded as an inmate at the Calgary Remand Centre (the CRC). On November 29, 2015, he alleged to have been assaulted by a corrections officer. He filed a claim for the alleged assault on November 10, 2017, which was subsequently dismissed for long delay. Mr. Osman filed another Statement of Claim on June 23, 2023, fundamentally identical to the basis of the first action, namely with respect to the purported assault.

The Crown defended the second claim on the basis that it was barred by operation of the Limitations Act, R.S.A. 2000, c. L-12 (the Act). Mr. Osman filed a Reply to Defence, pursuant to which he alleged that at the time of the assault, he was “utterly dependent” on the CRC corrections officers, including those said to have assaulted him. He relied on subsection 3.1(1)(c)(iii) of the Act (the Subsection), which provides that there is no limitation period in respect of “a claim that relates to an assault or battery, other than a sexual assault or battery, if, at the time of the assault or battery...the person with the claim was dependent, whether financially, emotionally, physically or otherwise, on the person who committed the assault or battery”.

After noting the factors under Weir-Jones Technical Services Incorporated v Purolator Courier Ltd., 2019 ABCA 49, Applications Judge Park explained that an applicant must prove, on the balance of probabilities, the facts necessary to establish the date on which the plaintiff had knowledge of an injury caused by the defendant (and resulting damages), and no genuine issue requiring trial. Where it is plain and obvious that an action is statute-barred, summary dismissal should be granted.

A relationship of dependence was at the heart of the Subsection. In the Court’s view, the Plaintiff had the onus to establish the existence of such a relationship at the time of the purported assault. Mr. Osman did not do so. The absence of such evidence was raised at the hearing of the Application. Counsel for Mr. Osman advised that he did not understand that the Crown’s argument focused on the question of dependence and therefore elected not to offer any evidence on that issue. However, even if there had been evidence tendered to establish the necessary dependence, Applications Judge Park noted that it would not have changed his conclusion, and the Subsection would not have saved Mr. Osman’s claim.  

The “golden rule” of statutory interpretation requires the words of a statute to be read in their entire context and grammatical and ordinary sense, harmoniously with the scheme and object of the legislation and the intention of the legislative body. Applications Judge Park found that expanding the category of litigants to include those who delay prosecution would lead to absurd results. Therefore, the claim was time-barred, and Summary Judgment was appropriate.