OW v WP, 2012 ABQB 252


2.13: Automatic litigation representatives
7.2: Application for judgment

Case Summary

In early 1999, the Plaintiff filed a Statement of Claim alleging she had been sexually assaulted by the Defendant in the 1940s. The Defendant brought an Application for Summary Dismissal pursuant to Rule 7.2(a), arguing that admissions made by the Plaintiff in Questioning demonstrated that the limitation date for bringing her Action expired long before she filed her Statement of Claim. The Plaintiff argued that limitation date calculations in sexual assault cases are nuanced and are not appropriate for Summary Dismissal.

Mahoney J. held that the Plaintiff’s admissions during Questioning demonstrated that she appreciated the causal link between her injuries and the alleged sexual assault decades before she filed her Statement of Claim. The limitation date started to run when she became aware of this causal link. Mahoney J. held that even if he took the latest possible time at which the Plaintiff could have become aware of the causal link, the limitation date would have expired in 1974. Given that the Plaintiff’s Action was commenced 25 years later, Mahoney J. held that the Plaintiff’s Action was statute barred. As such, the Application for Summary Dismissal was granted. 

The Plaintiff further argued that the Defendant had a non-party, his son and Power-of-Attorney, swear an Affidavit in support of his Application, but the Affiant refused to answer questions that were relevant to the Application. Mahoney J. held that the Rules do not provide that only parties can file Affidavits. Rather, the Affiant, in his role as Attorney, was simply putting facts before the Court by attaching excerpts from transcripts of the Questioning of the Defendant. Mahoney J. held that Rule 2.13 provides for such a procedure and, as such, nothing unfair or improper was done in filing the Affidavit.

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