KS v Yakabuski, 2017 ABQB 252

Court of Queen’s Bench of Alberta Citation: KS v Yakabuski, 2017 ABQB 252 Date: 20170406 Docket: 1603 07195 Registry: Edmonton Between: KS Plaintiff - and - Sean Yakabuski, Ken Stifanyk, Detective #1, Detective #2, Detective #3, Superintendent Doe, John Doe#1, John Doe #2, Doug McNally, Chief of the Edmonton Police Service, Harvey Jones, Deb Brown, and the Attorney General of Canada Defendants _______________________________________________________ Reasons for Decision of W.S.

Schlosser , Master, Court of Queen's Bench of Alberta _______________________________________________________ [ 1 ] This application takes us to the centre of remedial legislation presently before the Legislature. Bill 2, “An Act to Remove Barriers for Survivors of Sexual and Domestic Violence”, in its present form, would amend the Limitations Act to remove any limitation for claims relating to sexual assault. The Act is proposed to be retroactive; so, if passed, it would apply directly to this case. [ 2 ] This lawsuit is about an alleged sexual assault that took place “one night in late [November] 1992”.

The assault is denied. This is the Defendants’ application to dismiss this action on limitation grounds. [ 3 ] In all but the most extraordinary circumstances, a lawsuit started this long after the fact would have a life expectancy of about five minutes. The mere passage of time erodes the evidence, decreasing the chances of a fair and just result for either side. [ 4 ] There is also a Rule 3.68 application with respect to allegations of “negligent investigation” and “malicious prosecution”, which has been adjourned by consent of the parties.

The application would not dispose of the entire case. [ 5 ] The Plaintiff has raised

section 5 of the Limitations Act (persons under a disability) in response. As the legislation now stands, this could have the effect of suspending the limitation period. The burden of proving disability is on the Claimant (section 5(2)). She has pleaded it but has tendered no evidence to prove it, or to show that there is arguable merit to her position. Allegations are not evidence. Proof will likely require expert evidence from a psychiatrist, or a psychologist. It was not something the Plaintiff was able to obtain during the brief notice for this application.

Respondents to a dismissal application who tender no evidence risk having their case dismissed. [ 6 ] There are four options: First, to apply the law (as it now is), permit the application and dismiss the action; subject to an appeal with fresh evidence and (possibly) new legislation. Second, to adjourn the matter to allow the Plaintiff to obtain evidence going to her alleged disability. Third, adjourn the application for a reasonable time to permit the Plaintiff to gather evidence, and the parties to monitor the progress of the Bill.

Finally, I could dismiss the action but stay the Order for a time to see if the legislation passes. [ 7 ] I prefer the third option. I appreciate that Respondents to a

summary judgment application are obliged to put their best foot forward. The Plaintiff admits she has not done so, though she has an excuse.

[ 8 ] The Court is not to decide

summary dismissal cases on what the evidence might be. This also applies to the law. The Court cannot decide cases on what the law might be, or even on what it might probably be . The circumstances here must be unique. They are certainly extraordinary; with a government Bill, a large majority in the Legislature, remedial legislation directed at exactly this type of lawsuit, and proposed retroactive effect. [ 9 ] The application is adjourned. Costs can be dealt with when the application returns. Heard on the 24 th day of March, 2017. Dated at the City of Edmonton, Alberta this 6 th day of April, 2017. W.S.

Schlosser M.C.Q.B.A. Appearances: Tom Engel Engel Law Office for the Plaintiff Jeremy Taylor Field LLP for the Defendant, Doug McNally, Chief of the Edmonton Police Service Michael Chwok Henning Byrne LLP for the Defendant, Sean Yakabuski