QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 402 Date: 2010 10 27 Docket: Q.B. 3159 of 1999 Judicial Centre: Regina BETWEEN: McDIARMID LUMBER LTD. PLAINTIFF (RESPONDENT) and OCHAPOWACE FIRST NATION DEFENDANT (APPLICANT) Counsel: Philip J. Gallet for the plaintiff (respondent) Mervin C. Phillips for the defendant (applicant) JUDGMENT ZARZECZNY J. October 27, 2010 THE APPLICATION [1] The defendant, Ochapowace First Nation (“Ochapowace”), applies for the dismissal of the plaintiff’s claim for want of prosecution pursuant to the inherent powers of the court. The respondent, McDiarmid Lumber Ltd. (“McDiarmid”) responds through its counsel that it now has every intention to diligently proceed with its action. [2] McDiarmid’s claim in this matter was issued November 1, 1999. It is claim based in debt for goods and services provided to Ochapowace in relation to the construction of portable classrooms, 10 housing units and the purchase of mobile homes. The indebtedness claimed owing is $521,283.89. Contracts are claimed to exist for the provision of these materials, services and products in 1995 and 1996, some 15 years ago. [3] Ochapowace’s defence was filed November 12, 1999 and an amended defence June 21, 2002. The defences basically consist of general denials of liability and challenges to the quality of goods and services provided by McDiarmid. More recently, the amended defence claims that settlement involving the payment by Ochapowace to McDiarmid of $100,000.00 had been reached pursuant to which Ochapowace had paid $40,000.00 with $60,000.00 remaining due and owing. [4] Mediation was concluded in February of 2000. [5] On July 25, 2000, counsel for McDiarmid filed motion seeking to appoint Mr. Laird Allary, “...servant and Band Councillor of the Defendant” as the proper person to be examined on behalf of Ochapowace. Paragraph of the motion setting out the grounds for the order sought states: 5. The Defendant is an Indian Band within the meaning of The Indian Act and the said Laird Allary is Councilor of the said Defendant who has the greatest personal knowledge of the matters and facts which are at issue in this litigation; [6] In ground of the motion, the plaintiff states: 7. The Plaintiff is unable to obtain the information from other persons as there are no persons the Plaintiff is entitled to examine without the requested Order; [7] In the affidavit of Robert Chartier, sworn July 10, 2000 in support of the motion, Mr. Chartier deposes in paragraph 5: 5. The person the Plaintiff wishes to discover is Laird Allary. He is Band member and Counsel [sic] member of the Defendant. He is also responsible for housing on the Defendant’s reserve and was the individual involved in the negotiations and day to day discussions between the Defendant and the Plaintiff. ... [8] authorized the issue of consent order dated August 3, 2000 appointing Laird Allary as the appropriate representative of Ochapowace to be examined for discovery on behalf of the defendant. [9] An appointment was required to be issued for Mr. Allary’s examination in January of 2002. consent order issued permitting the amendment to the statement of defence to plead the settlement previously mentioned. Supporting the motion for amendment was an affidavit filed on behalf of Petra Bellanger claiming to be “an officer of the Ochapowace Band” and reciting her participation in the settlement negotiations with McDiarmid. Band Council approving the alleged settlement was passed. [10] Apparently, notwithstanding the court’s order for the appointment of Laird Allary as the appropriate person to be examined on behalf of Ochapowace, Petra Bellanger appears to have been substituted, presumably by agreement of the parties, and her examination for discovery was held on June 25, 2002. In May of 2003, the plaintiff brought an application to strike the defence alleging failure to comply with undertakings and in August, 2003, the defence brought an application to strike the plaintiff’s claim for failure on its part to reply to undertakings given at the examination for discovery of its officer. Consent orders were issued addressing each of these applications. [11] It is at this juncture that the file became dormant. Neither time nor circumstances similarly stood still. [12] Chief Denton George, the Ochapowace Band Chief throughout the whole of the time that Ochapowace had dealings with McDiarmid, died on August 16, 2009. In the spring and early summer of that year, counsel for Ochapowace wrote counsel for McDiarmid advising that Laird Allary had been diagnosed with and was undergoing treatment for serious illness and that he would be unavailable “unless the action was prosecuted by the plaintiff immediately”. The written notice given to the plaintiff on June 24, 2009 by counsel for Ochapowace to counsel for McDiarmid advised, in part: ... We confirm our advice this morning, the principle witness for Ochapowace, Laird Allary, is seriously ill and expected not to survive. The prejudice therefore will be significant at the trial of this action. ... Mr. Allary died September 25, 2009. [13] In an apparent attempt to support his application now made for dismissal of the action, counsel for Ochapowace, in June, 2010 (some almost one year subsequent to Mr. Allary’s passing), solicited responses to the further undertakings given in the examination of Walter Guylas (the designated representative of McDiarmid) held November 30, 2004. Counsel advised that unless responses were received, an application for dismissal of the action for want of prosecution would be taken. Nothing further developed in the next ensuing two months until this application was filed on August 19, 2010 seeking dismissal of the action for want of prosecution, failure to complete undertakings or alternatively for an order compelling delivery of the sought after undertakings. [14] In the further alternative, the defendant seeks an order for the return by McDiarmid to Ochapowace of the $40,000.00 Ochapowace had paid towards the settlement claimed to have been made, $10,000.00 of which was paid July 5, 2001 and $30,000.00 December 31, 2001, some nine years ago. These applications for dismissal and the alternate relief claimed are supported once again by the affidavit of Petra Bellanger. She deposes in her affidavit that the death of Chief Denton George and Laird Allary have significantly prejudiced Ochapowace’s ability to defend. In para. 6, she states: 6. THAT as result of the deaths of Chief Denton George and Laird Allary, Ochapowace First Nation has been deprived of the ability to adequately defend itself because the only two persons with direct involvement in the events have died. [15] The issues to be determined upon this application are the following: 1. Whether or not the defendant’s application to dismiss the plaintiff’s claim for want of prosecution should be granted in the circumstances; 2. Whether, if the action is not dismissed as applied for, an order should issue requiring compliance with the undertakings given and remaining outstanding from the examination for discovery of Walter Guylas November 30, 2004; 3. Whether an order should now issue for the return of $40,000.00 paid by Ochapowace to McDiarmid; 4. What costs, if any, should be awarded upon this application. [16] The Court of Appeal has recently released decision in the case of International Capital Corporation v. Robinson Twigg Ketilson et al., 2010 SKCA 48 (CanLII), 350 Sask.R. 160 (Sask. C.A.) (the “ICC case”). This judgment announced an “adjustment” to the traditional approach to be taken when deciding whether claim should be dismissed for want of prosecution. The traditional approach was as determined by this Court’s decision in the case of Carey v. Twohig, 1973 CanLII 898 (SK QB), [1973] W.W.R. 378, 37 D.L.R. (3rd) 718 (Q.B.). In the Carey case, Bayda J. (as he then was) determined the following approach to be followed when deciding whether or not an application to dismiss claim for want of prosecution should succeed. He concluded the defendant must show: 1. that there has been inordinate delay; 2. that the inordinate delay is inexcusable; and 3. that the defendants would likely be seriously prejudiced by the delay. [17] Bayda J. went on to observe at p. 388: If the defendant establishes the three factors to which have referred, the court, in exercising its discretion, must take into consideration the position of the plaintiff himself and strike balance. If he is personally to blame for the delay, no difficulty arises. There can be no injustice in his bearing the consequences of his own fault. If, however, the delay is entirely due to the negligence of the plaintiff's solicitor and the plaintiff himself is blameless, it might be unjust to deprive him of the chance of recovering the damages to which he could otherwise be entitled. [18] The Carey case and its principles were confirmed by the Saskatchewan Court of Appeal in the case of Humboldt Flour Mills Co. v. Ewen (1984), 1984 CanLII 2431 (SK CA), 36 Sask.R. 81(Sask. C.A.), [1984] S.J. No. 710 (QL). In the ICC case the court observed that in Humboldt Flour Mills “the court also endorsed Bayda J.’s description of the overriding principles in these sorts of matters as being whether justice can be done despite the delay” (para. 18). (See also Potash Corp. of Saskatchewan Inc. v. Barton 2009 SKCA (CanLII), 320 Sask.R. 29 (Sask. C.A.) at paras. 19-20). [19] These and other cases have recognized that the decision to dismiss an action for want of prosecution is discretionary in nature. At paras. 40 49 of its judgment in the ICC case, the Court of Appeal outlined the revision which it considered appropriate to the Carey case approach. The ICC case decision now governs. It binds this Court when considering dismissal applications. [20] In ICC, the court importantly notes, at para. [41] Delays of the sort underpinning this appeal frustrate not only litigants. They also undermine public confidence in the justice system as whole. At para. 42, our Appeal Court directs as follows: [42] The best way to proceed is by adjusting the Carey v. Twohig approach so that finding to the effect defendant will likely suffer serious prejudice is not strict precondition to striking claim. Rather, the question of prejudice should be factor an important one considered when determining whether it is in the interests of justice that claim proceed to trial notwithstanding inordinate and inexcusable delay. ... [emphasis added] At paras. 43 45, the Court sets out the three step approach for dealing with an application to strike with its modification to step 3: 1. Step one an inquiry about whether the defendant has established that the delay in moving case ahead has been inordinate. 2. Step two an examination of the reasons for the delay aimed at determining whether it is excusable. 3. Step three if the delay is found to be both inordinate and excusable, determine whether it is in the interests of justice that the case proceed to trial notwithstanding the delay. [23] The third step should involve consideration of the issue of prejudice (previously the focus of step 3) as one, albeit an important, aspect of step but having regard to eight enumerated factors (para. 45) as may be applicable to and in the circumstances of the case. They include the following: 1. The prejudice the defendant will suffer in mounting its case if the matter goes to trial; 2. The length of the inexcusable delay; 3. The stage of the litigation; 4. The impact of the inexcusable delay on the defendant; 5. The context in which the delay occurred; 6. The reasons offered for the delay; 7. The role of counsel in causing the delay; and 8. The public interest. Step Inordinate Delay [24] As discussed in the ICC case at para. 43, this step in the analysis involves consideration of the time the plaintiff has taken to get the litigation to the point where the application to strike is brought compared to typical time frames for cases of similar complexity. [25] This case is an action in debt but it apparently relates to substantial and significant course of dealings between these parties occurring over period of years, mainly in 1995-96 and perhaps into 1997 and thereafter. The amount claimed owing is substantial and the products, goods and services provided are significant. There is no suggestion in the amended defence that these goods, products and related services were not provided as it appears they were. [26] Between the commencement of the action in 1999 and 2004, when apparently the file became dormant, the pleadings were closed, mediation completed and examinations for discovery conducted. Additionally, settlement negotiations were undertaken and at least the amount of $40,000.00 was paid to Ochapowace to McDiarmid. [27] The affidavit of Ms. Bellanger demonstrates the delays experienced in initially arranging for the discovery of Laird Allary. This may have ultimately contributed to an agreement to the designation of Ms. Bellanger as appropriate officer to be examined for Ochapowace and her subsequent examination for discovery these circumstances are unclear from the record on the file. [28] Although letters were sent by counsel for Ochapowace to counsel for McDiarmid in the summer of 2009, this correspondence appears to be the first concerted attempt in five years to revive the action. prior 2007 correspondence by the solicitors for Ochapowace to the solicitors for McDiarmid seems to have encouraged no further action on this file by either party. Even so, it is not until now, at least year after the 2009 correspondence, that this application to dismiss the action for want of prosecution is taken. [29] On the other hand, as reviewed in step 2, there is no satisfactory explanation proffered by McDiarmid for its delay in furthering this action or bringing it to trial during the five year period of dormancy. [30] This case, subject to compliance with the undertakings, is ready to be referred for pre-trial settlement conference. Failing settlement, it could be entered for trial. [31] In ICC, the action was commenced in 1994, examinations for discovery held in 1997, 1998 and 2002 and the file then remained dormant for some four years until 2006. As did the trial judge in the ICC second decision, I find and conclude that a delay in excess of five years in advancing this case does constitute inordinate delay when compared to the progress in comparable cases. Step Was the delay excusable? [32] The Chartier affidavit deposes in para. that Mr. Guylas, discovered for McDiarmid, had health issues and he, too, passed away in October of 2006. Although Chartier was responsible, with Guylas, for McDiarmid’s dealings with Ochapowace, Chartier left the employ of the company in 2001, returning in 2007. While these depositions may have some general relevance, they are not satisfactory explanations in law for the company’s lack of diligence in proceeding with its action nor do they provide “lawful excuse”. [33] The onus is on party resisting dismissal application to convince the court that the facts and circumstances support conclusion that the delay was excusable. McDiarmid’s materials fall far short of doing so. find that no legally acceptable excuses have been advanced for the inordinate delay which have found to have occurred in this case. Step Interests of Justice [34] As already observed, it is in this area that the Carey case approach has been modified by the ICC decision. The question now to be considered in the third step of the inquiry is whether or not it is in the interests of justice that this claim proceed to trial notwithstanding the finding of inordinate and inexcusable delay. This question necessarily involves the question of whether or not the defendant will likely suffer serious prejudice having regard to those of the eight factors considered relevant to the circumstances of this case as set out in ICC. [35] The affidavit filed in support of this application by Ms. Petra Bellanger does not satisfy me that the defendant will suffer serious impediments in mounting its case if the matter proceeds to trial. It does appear that Ochapowace, and initially McDiarmid, were in agreement that Laird Allary was the appropriate person to be examined on behalf of Ochapowace because he was the individual primarily responsible for construction on the Ochapowace reserve. The reserve’s dealings with McDiarmid relating to the goods, products and services McDiarmid provided, and for which it sues for payment, necessarily would involve some individuals acting for and representing both parties. However, for whatever reason, both parties appear to have subsequently agreed to or acquiesced in the appointment of Ms. Petra Bellanger as the person sufficiently knowledgeable about the McDiarmid dealings and appropriately representative of Ochapowace to be the person examined for discovery on behalf of the defendant in this action. The various court applications that were made on behalf of Ochapowace, as early as 2002, were supported by her affidavits as are the present applications. It appears to be the case that Ms. Bellanger has informed herself and is very knowledgeable about the circumstances involved in this case. She has, and continues to have, access to the Ochapowace Band records. There are no details given in her affidavit to contradict the statement made in the Chartier affidavit that Chief George did not have much direct involvement with the McDiarmid contracts [36] Although it appears that both Laird Allary and Wally Guylas were the primary representatives “on the ground” for Ochapowace and McDiarmid, neither, unfortunately, have survived the lengthy delay in bringing this case to trial. Nevertheless, both parties must have records and some documentation and, in the case of Ochapowace, other witnesses who must have been involved with the McDiarmid contracts who are still alive. Ms. Bellanger’s affidavit does not address these questions nor does it deny the existence of records, correspondence or other evidence that may or may not be available to assist Ochapowace in the presentation of its defence. [37] have therefore concluded that while there may be some prejudice that the defendant has suffered in mounting its case if the matter goes to trial as result of the unavailability of Laird Allary, nevertheless the degree of involvement of Ms. Bellanger throughout the years and the Ochapowace Band records, together with the examination for discovery the defendant conducted of Mr. Guylas and perhaps other sources, should not disarm the defendant from conducting its defence. [38] The length of the inexcusable delay in this case is comparable to that experienced in the ICC case. In that case, it was not sufficient to warrant dismissal of the action. have reached the same conclusion with respect to the present case. [39] As was the case in ICC, this case has now seen the completion of all pre-trial steps excepting for the response to certain undertakings given and still outstanding and the scheduling of pre-trial settlement conference. Accordingly, the case is ready to and can proceed to trial without further delay and it should do so. [40] The context in which the delay in this case occurred is straight forward. It does appear that neither party has undertaken extensive communications with the other although McDiarmid bears greater fault in this area than does counsel for, and his client, Ochapowace. Nevertheless, the 2007 “warning” was not acted upon in timely fashion. Although greater onus lies upon McDiarmid as plaintiff, nevertheless Ochapowace, either because it considered the matter settled or alternatively was content, in the hopes that the case “had gone away”, to do nothing to encourage more timely disposition of it until the 2009 correspondence, is not blameless respecting its contribution to the delay. CONCLUSION [41] Weighing all the relevant facts, which I have, and sensitive to the on the ground realities of litigation with the aim of achieving a result which is just, I have concluded that this is not a case where the application for dismissal for the plaintiff’s want of prosecution of it should be granted. have concluded that although the plaintiff’s delay in this case was inordinate and legally inexcusable, nevertheless, the prejudice suffered by the defendant does not reach the level of “serious prejudice” having regard to the factors considered as listed in the ICC case. I have concluded that it is in the interests of justice that the plaintiff be permitted to pursue its claim. All parties are cautioned to now proceed diligently and without further delay. Failure to do so will no doubt cause the defendant to consider making further application for dismissal. [42] With respect to the alternate relief claimed, there will be an order pursuant to Rule 231 of The Queen’s Bench Rules compelling the plaintiff to complete the undertakings given at the examination of Walter Guylas November 30, 2004 within 30 days. The application for an order returning the $40,000.00 paid by Ochapowace to McDiarmid is not relief which can be granted at this time. The question of whether or not settlement was reached, the circumstances under which this payment was made by Ochapowace to McDiarmid and retained by the latter are live issues raised by the pleadings. This is an issue that must be determined by the trial judge. [43] Because have concluded that the plaintiff was responsible for an inordinate and legally inexcusable delay in pursuing its action resulting in this application, award the defendant its costs on party/party basis notwithstanding the costs that may ultimately be ordered payable in the cause. The costs awarded are pursuant to Column of this Court’s tariff of costs and must be paid within 30 days. If the parties disagree respecting costs, the same are referred for assessment by the Local Registrar. J. T. C. ZARZECZNY
The defendant applied for dismissal of the plaintiff's claim for want of prosecution. The claim was issued November 1, 1999 and is based in debt for goods and services provided to the defendant. The value of the claim is $521,283.99 and refers to provision of materials, products and services in 1995 and 1996. The statement of defence was filed November 12, 1999 and amended in 2002. In the intervening years, the Chief of the defendant Indian Band died as did the person who had been appointed the proper person to be examined on behalf of the defendant.HELD: The decision to dismiss an application for want of prosecution is discretionary. A three step process was set out in International Capital Corporation v. Robinson Twigg &amp; Ketilson et al., 2010 SKCA 48. In this case, a delay of in excess of 5 years does not constitute inordinate delay when compared to the progress in comparable cases. The amount claimed is significant and there is no suggestion in the amended defence that the goods, products and related services were not provided. Subject to compliance with undertakings, the matter is ready to be referred to pre-trial settlement conference. There is no legal excuse offered on the part of the plaintiff for the inordinate delay in this case. The plaintiff bears the onus of convincing the Court on a balance of probabilities that the delay was excusable and its materials fall short. While there may be some prejudice to the defendant in mounting a defence because of the death of some of the people who were intimately involved in the dealings between the parties, there is an individual available who is intimately familiar with the dealings between the parties and there are discovery transcripts that might be of assistance. Both parties have records and documentation that can be tendered at a trial. The Court concluded that the interest of justice favored continuing with the action. The application to dismiss the action for want of prosecution was denied.