THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 35 Date: 20110315 Between: Docket: CACV 2053 George Forrester, Phillip Scott, Keith Bowers and R. Gary Cooper Applicants (Proposed Appellants) (Defendants) and University of Saskatchewan Respondent (Proposed Respondent) (Plaintiff) Before: Richards J.A. (in Chambers) Counsel: Timothy P. Ryan for the Appellants Michelle J. Ouellette, Q.C. for the Respondent Application: From: 2011 SKQB 55 (CanLII) Heard: March 9, 2011 Disposition: Leave to appeal granted Written Reasons: March 15, 2011 By: The Honourable Mr. Justice Richards Richards J.A. I. Introduction [1] The Applicants, George Forrester, Phillip Scott, Keith Bowers and R. Gary Cooper (the “Applicants”) are defendants in an action commenced by the Respondent, University of Saskatchewan. They applied to have the University’s claim against them dismissed for want of prosecution but were unsuccessful. They now seek leave to appeal that decision. II. Basic Background [2] The relevant background facts are set out in the decision of the Queen’s Bench Chambers judge now reported at 2011 SKQB 55 (CanLII). will outline only their key features. [3] The Applicants were partners in an architectural firm that provided design drawings and specifications for the construction of the Education Building on the University of Saskatchewan campus. The building was substantially complete by 1970. [4] In 1985, some of the stone panels on the exterior of the building fell to the ground. [5] In 1986, the University commenced an action against its insurer for coverage of the loss. In 1991, in order to preserve the University’s right to relief, the insurer commenced an action against the Applicants as well as against Cana Construction Co. Ltd., Haid Construction Ltd. and Con-Force Structures Limited. With respect to the Applicants, the University alleged that its loss occurred as result of their negligent design efforts. [6] The litigation between the University and its insurer moved forward. However, it was not resolved until 1997 when this Court held there was no coverage. [7] As result, the University did not assume control of the action in issue here until 1998. The Chambers judge summarized what happened between 1998 and today in these terms: [7] At that point the insurers no longer had an interest in this action, but the University did. Accordingly, the University assumed control of this action in February of 1998. The following steps took place in 1998 and in 1999: (a) In early March 1998 the University served Notice of Intention to Proceed. (b) Throughout much of the rest of 1998 the parties delivered various defences, cross-claims and statements as to documents. (c) In November 1998 the University's counsel conducted examination for discovery of Cana's proper officer. (d) Through the rest of 1998 and up to March 1999 the parties delivered various particulars, defences and responses to undertakings. [8] Following March of 1999 no progress was made in the action until 2005. The following occurred beginning in late 2005: (a) In November 2005 the University obtained an appointment for the examination for discovery of Phillip Scott, one of the defendants Forrester, Scott, Bowers and Cooper ("the architects"). (b) In February 2006 the University's counsel conducted examination for discovery of Phillip Scott. (c) In April 2006 the University's counsel conducted examination for discovery of Keith Bowers and Gary Cooper. (d) In September 2006 the architects' counsel conducted examination for discovery of the University's proper officer. (e) In 2007 the University and the architects delivered responses to undertakings given at examination for discovery, and the University delivered revised statement as to documents. (f) In 2008 the University and the architects agreed to request that judge of this court preside over negotiation session, for the purpose of exploring settlement. (g) In August 2008 the University and the architects filed "Joint Request for Post-Pleadings/Pre-Trial Conference" that had been completed and executed on behalf of the University and the architects. conference date was set by the local registrar. Before the conference was conducted, the University invited Cana to attend as well. (h) On February 5, 2009 conference was convened by judge of this court. It was attended by representatives of and counsel for the University, the architects and Cana. The conference was adjourned for additional exchange and gathering of information. (i) The conference was reconvened on July 26, 2010, with the same participants. No resolution was achieved. III. The Queen’s Bench Decision [8] In September of 2010, all of the defendants moved to have the University’s claims against them dismissed for want of prosecution. [9] The Chambers judge struck the claims against all of the defendants but the Applicants. [10] In considering the situation of the Applicants, the Chambers judge concluded that the delay from 1991 to 1998 (when the University’s insurer was prosecuting the action) was not problematic. However, he said the delay from 1999 to 2005 was both inordinate and inexcusable. [11] That done, the Chambers judge nonetheless concluded it was not in the interests of justice that the action be struck for delay. In arriving at this result, he emphasized three considerations: (a) the litigation had progressed to late stage, (b) the action had been pursued in timely manner since 2005 and the Applicants had participated in those proceedings, and (c) the lack of availability of people connected with the Applicants’ design work was not overly significant because the University’s negligence claim would be resolved at trial on the basis of documents and expert testimony. [12] The test for determining whether to grant leave to appeal is well known and there is no need to repeat it. See: Rothmans, Benson Hedges Inc. v. Saskatchewan, 2002 SKCA 119 (CanLII), 227 Sask. R. 121 at para. 6. The test involves consideration of both the merits of the proposed appeal and its importance. [13] As to the issue of merits, the Applicants say the Chambers judge erred in several respects. They stress that (a) he treated them inconsistently by striking the claim against Cana Construction Co. Ltd. even though it too had progressed to a very late stage in the litigation, (b) he improperly discounted the fact that many of their key witnesses would be unable to testify due to death or mental and physical disability and failed to properly assess the prejudice that they would suffer if they are forced to proceed to trial, (c) he improperly discounted the problems they will face in obtaining appropriate expert evidence so many years after the work in issue was done, (d) more specifically, he wrongly discounted the importance of their difficulty in finding expert witnesses by saying the University would face the same problems, and (e) he failed to give sufficient or any weight to the overall delay, i.e. from 1991 to 2010, in considering whether it was in the interests of justice for the case to proceed to trial. With respect to the importance of the appeal, the Applicants say it will be useful for this Court to refine what it said in International Capital Corp. v. Schafer, 2010 SKCA 48 (CanLII), [2010] W.W.R. 407 about dismissing claim for want of prosecution. They stress, of course, that an appeal would potentially be determinative of the claim against them. [14] For its part, the University submits that the proposed appeal has little merit. It says the Chambers judge identified and applied the proper principles of law as set out in International Capital Corp. It submits, as well, that the Chambers judge considered the relevant evidence and acted judicially, arriving at decision which is neither unjust nor clearly wrong. Accordingly, in light of the deferential standard of review applicable to proceedings such as the one in issue here, the University contends the Applicants’ proposed appeal is destined to fail. It also says the appeal is of no general importance and will have no implications beyond the facts of this case. [15] The standard of review applied in respect of decisions such as the one in issue here will present some difficulty for the Applicants on appeal. Nonetheless, I am persuaded there is enough merit in their position to warrant granting leave. As matter of first impression only, arguments (a) and (b), summarized above in para. 13, appear to be of particular interest. Given my ultimate conclusion with respect to this application, will refrain from saying more about the substance of the Applicants’ arguments or about the University’s position in response to them. [16] am also persuaded that this appeal is of sufficient importance to warrant the attention of the Court. Granted, like all cases, it is grounded in its own facts but this does not necessarily mean it will be of no larger jurisprudential significance. The issue of delays in litigation is important and this case appears to present some opportunity for this Court to clarify the legal framework relating to such matters. [17] All of that said, appreciate there is an arguable irony in decision granting leave to appeal in case like this because the appeal itself will cause additional delay. However, this appeal is not particularly complex and it should be capable of resolution within reasonably short timeframe. Having been granted leave to appeal, expect the Applicants to move the proceedings forward with dispatch. V. Conclusion [18] Leave to appeal is granted. Costs will be in the discretion of the panel hearing the appeal. DATED at the City of Regina, in the Province of Saskatchewan, this 15th day of March, A.D. 2011. “RICHARDS J.A.” RICHARDS J.A.
The applicants applied for leave to appeal from a Chambers decision denying their application to dismiss the respondent's claim against them for want of prosecution. The applicants were partners in an architecture firm that provided design drawing and specifications for the construction of the Education Building at the University of Saskatchewan. The building was substantially completed in 1970. In 1985, stone panels fell off the exterior of the building. In 1986 the respondent commenced an action against its insurer for coverage of the loss. In 1991, the insurer commenced an action against the applicants in order to preserve the respondent's right to relief. In 1997, the Court determined the respondent was not entitled to coverage from its insurer. The respondent commenced control over the litigation against the applicant in 1997. Between 1997 and 2010, documents were exchanged, discoveries were held and an unsuccessful settlement negotiation was held. In 2010 all of the defendants applied to have the respondent's claim dismissed for want of prosecution. The Chambers judge struck the claims against all the defendants except the applicant. HELD: Leave to appeal was granted because there was some merit to the applicant's arguments that they had been treated inconsistently and that key witnesses were no longer available to testify because of death or mental or physical disability, which would prejudice the applicant. Secondly, the issue of delays in litigation is important and the case will present an opportunity for the Court to clarify the legal framework pertaining to such matters.