The Trial in this matter, set for April 2020, was adjourned because of the COVID-19 pandemic. On July 4, 2023, the Plaintiff applied for a 4-month suspension of the Action under Rule 4.33(9). The Defendant cross-applied to dismiss the Action under Rule 4.33(2).

Justice Henderson found that the Plaintiff was not entitled to a suspension of the Action because, when the Plaintiff filed her Application to suspend time, more than 3 years had already passed without any significant advance in the Action. The Action was therefore dismissed for long delay pursuant to Rule 4.33(2).

Rule 4.33(2), often referred to as the “Drop Dead Rule”, provides that if 3 or more years have passed without a significant advance in an Action, the Court must dismiss the Action. The Rule is mandatory and leaves no room for discretion. However, there are two exceptions to the Drop Dead Rule. First, if the Action has been adjourned by Order under Rule 4.33(2)(a). Second, if, after the 3-year period lapsed, the Defendant participated in further steps that were taken in the Action, and the Court considers the Defendant’s participation in these steps a continuation of the Action under Rule 4.33(2)(b).

In analyzing the first exception to Rule 4.33(2), Henderson J. noted that Actions can been stayed or adjourned by Court Orders. However, the Order adjourning the Trial was not such an Order because it did not prevent the parties from taking further steps in the Action. For example, the Order did not prevent the Plaintiff from answering Undertakings given at Questioning.

The second exception to Rule 4.33(2) was also not engaged. The Plaintiff argued that after she had filed her Application to suspend time, the Defendant appeared in Court to seek an adjournment. The Plaintiff argued that by seeking an adjournment to a date when both parties were available, the Defendant had “participated” in further steps in the Action. Justice Henderson rejected this argument, noting that the Defendant’s partition “to seek a date when the parties were both available is not the type of acquiescence that is contemplated by the Rule”.

As a collateral argument, the Plaintiff tried to extend the 3-year timeframe under the Drop Dead Rule by pointing to medical incapacity or disability. The Court noted that despite the Plaintiff’s chronic pain, she was able to retain and instruct counsel to commence the proceedings in 2019 and to be ready to proceed to Trial in April 2020. While the Court of Appeal has not addressed the question of whether a Plaintiff’s incapacity or disability can extend the
3-year time, the Plaintiff in this case has been suffering from serious and long-standing issues. Absent any evidence that the Plaintiff was unable to instruct counsel and participate in the litigation, there was no basis to permit an extension of the time limitation in Rule 4.33(2), even assuming such an extension was permissible in law.

The Court concluded that no steps significantly advanced the Action until 3 years and 75 days later. As the Plaintiff filed her Application after the expiry of the “drop dead” date, the Court was unable to grant the Application as it would have amounted to a retroactive suspension period.  Imposing suspension periods retroactively under Rule 4.33(9) is not allowed as it would detract from the mandatory nature of Rule 4.33(2). Accordingly, litigants seeking to invoke a suspension period by an Application for relief under Rule 4.33(9) must do so prior to the expiry of the “drop dead” time period.