The Defendants applied for dismissal of the Plaintiffs’ Action due to long delay pursuant to Rule 4.33 (the “Application”). The Application was initially brought in March of 2020 and was adjourned sine die to allow the Plaintiffs to gather the relevant evidence to respond to the Applications. The Defendants revived the Application as no further evidence had been produced. The Plaintiffs did not oppose the Application and acknowledged that no steps had been taken to advance the Action in over nine years. The Action was dismissed.

The Defendants each sought Costs from the Plaintiffs as a consequence for the dismissal of the Action. The Plaintiffs argued that no Costs should be awarded in light of the nature of the claim and the age of the Plaintiffs at the time of commencement. The Action relates to allegations of sexual assault and battery, and the Plaintiffs were minor children at the time of commencement in 2007. The Plaintiffs were initially represented by their mother as Litigation Representative. Upon their mother’s death, a subsequent Litigation Representative was appointed. The three Plaintiffs were each represented by the Litigation Representative until they came of age in 2011, 2013, and 2015, respectively.

The Court held that the Plaintiffs should not be held personally responsible for Costs that may have been incurred during the time that they were represented by a Litigation Representative. Rule 10.47(1) provides that a Litigation Representative is liable to pay any costs award against a Plaintiff, and Rule 2.14(2)(g) requires a Litigation Representative to acknowledge this liability. Justice Graesser further stated that any Costs Award against the Plaintiffs’ mother would be moot given that she had passed away.

Justice Graesser concluded that the Litigation would be no more costly with a single Plaintiff than with multiple and as a result, Costs should not be attributable to the individual Plaintiffs until all Plaintiffs were of age. The Court ordered that the Plaintiffs were jointly and severally liable to the Defendants for costs based on Schedule C for all steps taken following the date that all Plaintiffs were of age.