2022 NLSC 160, 2022 NLSC 160

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Penney v. L.B. , 2022 NLSC 160 Date : November 4, 2022 Docket : 200401T1834 Between: Ellsworth James Penney Plaintiff/First Defendant by Counterclaim And: L.B. First Defendant And: L.M. Second Defendant/FIRST plaintiff by counterclaim And: N.G. Third Defendant And: J.M. Fourth Defendant/SECOND plaintiff by counterclaim ( discontinued ) And: M.B. Fifth Defendant And: Attorney General of Canada

Sixth Defendant And: His Majesty in Right of Newfoundland and Labrador Seventh Defendant Restriction on Publication: By court order made on the 14th day of September, 2020, information that may identify the First Defendant, Second Defendant/First Plaintiff by Counterclaim, Third Defendant, Fourth Defendant/Second Plaintiff by Counterclaim, and the Fifth Defendant as complainants or witnesses in proceedings in action 1997 No. G-152, in the Supreme Court of Newfoundland and Labrador, Trial Division, shall not be published in any documents, broadcasted, or transmitted in any way.

Before: Associate Chief Justice Rosalie McGrath Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: October 6, 2022

Summary: The Court dismissed an action for want of prosecution on the basis that there was inordinate and inexcusable delay as well as both inherent and actual prejudice to the Defendants. More than twenty-four years had passed since the events giving rise to the cause of action and it had been eighteen years since the Statement of Claim was issued. Appearances: Averill Baker Appearing on behalf of the Plaintiff/ First Defendant by Counterclaim L.B. Appearing on his own behalf L.M. Appearing on his own behalf Corinne Bedford Appearing on behalf of the Sixth Defendant David G. Rodgers Appearing on behalf of the Seventh Defendant Authorities Cited:

CASES CONSIDERED: Penney v. L.B., 2021 NLSC 82; Penney v. Lush (1996), (NL CA), 139 Nfld. & P.E.I.R.114, 433 A.P.R. 113 (Nfld. C.A.); Allen v. Sir Alfred McAlpine & Sons Ltd., [1968] 1 All E.R. 543, 2 Q.B. 229 (Eng. C.A.); Avdeeva v.Estate of Levon Khankaldiyan, 2021 ONSC 4302; Fennelly v. Lloyd’s Underwriters, 2016 NLTD(G) 1; Fennelly v. Lloyd’sUnderwriters, 2021 NLSC 160; Dawe v. Brown (1994), (NL SC), 120 Nfld. & P.E.I.R. 40, 373 A.P.R. 40 (Nfld.S.C. (T.D.)); Penney v. Lush (1994), (NL SC), 127 Nfld. & P.E.I.R. 103, 396 A.P.R. 103 (Nfld. S.C.(T.D.)); HalifaxInsurance Co. v. Hunt, [1992] N.J.

No. 154, 33 A.C.W.S. (3d) 1046 (Nfld. S.C.(T.D.)); Kilfoy v. Shanahan’s Investigation and SecurityLtd. (2010), CarswellNfld 486 (Nfld. S.C. (T.D.)), Horgan v. Law Society of Upper Canada, 2012 ONSC 4540; Henley Estate (Re), 2019NLSC 54; British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 STATUTES CONSIDERED: Interprovincial Subpoena Act, R.S.N.L. 1990, c. I-20 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch.

D REASONS FOR JUDGMENT McGrath, a.C.J.: INTRODUCTION [1] The Sixth Defendant (“Canada”) filed an application asking this Court to make an order under Rule 40.11 of the Rules of theSupreme Court, 1986, S.N.L. 1986, c. 42, Sch.

D (the “Rules”), that the claim of the Plaintiff be dismissed for want of prosecution. [2] More than eighteen years have passed since the Plaintiff filed his Statement of Claim alleging negligent investigation andmalicious prosecution, together with other related claims. [3] The criminal trial against the Plaintiff that gave rise to the claims took place more than twenty-four years ago, with theNewfoundland and Labrador Court of Appeal overturning the trial conviction more than twenty years ago.

The alleged acts giving rise tothe criminal charges at issue, i.e., sexual assault and indecent assault against two minors, date back approximately forty years. [4] The Seventh Defendant (the “Province”), with the leave of the Court, did not file its own separate application under Rule 40.11as the Province’s counsel advised the application would have mirrored that of Canada.

The Province therefore indicated it wassupporting the application and asked that the claim against it be dismissed under Rule 40.11 for the same reasons as requested byCanada. [5] The remaining individual Defendants, the First and Second Defendants, are self-represented and did not file their ownapplications to dismiss for want of prosecution. Despite having notice, they also did not appear on this application.

However, thebrother of the First Defendant observed all Court appearances and advised that he updated both the First and Second Defendant. [6] The claim against the Fourth Defendant was discontinued as she passed away in 2012. The claims against the Third and FifthDefendants were dismissed in June 2021 on the basis that they disclosed no reasonable cause of action. [7] The matter was called before the Court on October 6, 2022 to address the issue of whether leave should be granted to hear theapplication, as required by a previous order of the Court referred to below.

After counsel for the Plaintiff consented to the granting ofleave, I proceeded to hear the application. The following are my reasons for decision on that application. background [8] The following subparagraphs outline the history of this proceeding insofar as it relates to this application. [9] The Statement of Claim was filed on March 26, 2004.

At that time, the Plaintiff was self-represented. [10] The Statement of Defence and Counterclaim of the Second and Fourth Defendants was filed on May 3, 2004. [11] The Defence to Counterclaim of the Plaintiff was filed on May 31, 2004. [12] The Statement of Defence of the Province was filed on May 31, 2004. [13] The Statement of Defence of the Third Defendant was filed on June 8, 2004. [14] The Demand for Particulars of Canada was filed on June 22, 2004. [15] A Response to Demand for Particulars was forwarded by the Plaintiff via email on June 30, 2004.

It was never filed with theCourt. [16] The Statement of Defence of Canada was filed on July 8, 2004.

[ 17 ] A Notice of Intent to Proceed and a Notice of Appointment of Solicitor, appointing current counsel for the Plaintiff, were filed on November 17, 2009. [ 18 ] The Plaintiff’s List of Documents was filed on June 3, 2015. [ 19 ] The Statement of Defence of the First Defendant was filed on June 26, 2015. [ 20 ] The Statement of Defence of the Fifth Defendant was filed on June 26, 2015. [ 21 ] The List of Documents of the Province was filed on August 13, 2015. [ 22 ] The List of Documents of Canada was filed on September 25, 2015. [ 23 ] The Plaintiff filed a Trial Record with the Court on January 18, 2016. [ 24 ] The Plaintiff provided counsel for Canada with a Trial Record on January 25, 2016 but no Certificate of Readiness was included. [ 25 ] An Examination for Discovery of the Plaintiff was held on May 19, 2016. [ 26 ] An Examination for Discovery of a representative of the Province was held on August 14, 2018. [ 27 ] Counsel for Canada states that, over the course of many years, requests have been made to Plaintiff’s counsel to move the matter forward, either by further discoveries or setting the matter down for trial.

Plaintiff’s counsel has been largely unresponsive to communication from counsel for Canada. [ 28 ] Counsel for Canada further states that she made a request to Plaintiff’s counsel on February 12, 2019 to forward a Certificate of Readiness for signing but no response was received. She made further requests regarding the Certificate of Readiness on February 21 and April 1, 2019. Again, no response was received.

The April 1, 2019 correspondence also inquired about the setting down of further discoveries. [ 29 ] Counsel for Canada filed an application requesting an Order that the Plaintiff be required to file and serve a Certificate of Readiness in the draft form attached to that application on April 15, 2019. The matter was called in Court on May 14, 2019 but was adjourned to June 25, 2019 in order to allow for service on certain of the individual Defendants.

Another applications judge adjourned the matter again to September 17, 2019, allowing the Plaintiff time to either complete and file a Certificate of Readiness or set dates for any remaining discovery examinations. [ 30 ] Counsel for Canada sent a Certificate of Readiness to the Plaintiff again on July 4, 2019, requesting that it be executed and forwarded to counsel for the Province for his signature. Counsel for Canada wrote again to counsel for the Plaintiff on July 10, 2019, to request confirmation of receipt of the Certificate of Readiness.

Canada also requested that the Plaintiff either sign the Certificate of Readiness or inform that she did not intend to do so as the timelines were tight to get the document sent to all of the parties to the action.

No response was received to these two requests. [ 31 ] Counsel for Canada sent a further follow-up letter to counsel for the Plaintiff on July 18, 2019, requesting that counsel for the Plaintiff advise of her intentions regarding the Certificate of Readiness by July 24, 2019, or Canada would be forced to file an application to have the matter dismissed for want of prosecution. [ 32 ] On July 26, 2019, Plaintiff’s counsel sent an email indicating her intention to have “everything priority posted” over the weekend.

Canada responded to this email asking what was meant by “everything.” [ 33 ] On July 28, 2019, counsel for the Plaintiff sent another email requesting that counsel for Canada confirm she had received a copy of the Trial Record in 2016. [ 34 ] On July 29, 2019, counsel for Canada responded confirming she received a copy of the Trial Record which did not contain a Certificate of Readiness. She also again requested that the executed Certificate of Readiness be forwarded to counsel for the Province for his signature and he would forward the document to counsel for Canada.

She also requested that the Plaintiff inform that day if her intention was to proceed with further discoveries. No response was received from counsel for the Plaintiff. [ 35 ] Counsel for Canada wrote to counsel for the Province and counsel for the Plaintiff on July 30, 2019, asking if anything had been received from the Plaintiff. Counsel for the Province confirmed that nothing had been received. [ 36 ] Subsequently, an application pursuant to Rule 40.11 was filed by Canada and was scheduled for September 17, 2019, the same date as the adjourned application to have the matter set down for trial.

The applications judge ordered that the matter be set down for trial. He further ordered that no pre-trial steps be taken, including interlocutory applications, without leave of the Court. [ 37 ] The matter was then set for trial to commence on September 14, 2020, but was adjourned to November 9, 2020, to allow time for counsel to be appointed for the Fifth Defendant, who had developed dementia.

Applications requesting that four of the individual Defendants be dismissed from the action were then filed and heard during the first two days that had been set for trial in November. [ 38 ] My decision ordering discontinuances against the Third and Fifth Defendants was filed on June 4, 2021 and is the subject of a written decision Penney v. L.B. , 2021 NLSC 82 .

In that decision, I also ordered that the Plaintiff either amend his Statement of Claim or provide further and better particulars of his claim against the First and Second Defendants. [ 39 ] On June 30, 2021, a Case Management Conference was held and the trial was scheduled to re-commence on April 18, 2022.

[40] After an attempt to amend the pleadings, counsel for the Plaintiff forwarded particulars with respect to the claims against theFirst and Second Defendants on September 2, 2021. [41] On the morning of April 18, 2022, counsel for the Plaintiff contacted the Court and the parties via email to state that she was illand would be unable to attend the trial. Counsel for the Plaintiff appeared by phone that morning to confirm she was ill. The matter wasrecalled the following day and the trial was adjourned to January 16-20, 2023, as counsel for the Plaintiff was still unwell. [42] In May, 2022, counsel for Canada requested a case management meeting to

schedule this application to dismiss for want ofprosecution. That case management meeting took place on June 9, 2022, but counsel for the Plaintiff was not present. The Plaintiff waspresent himself but was not successful in attempting to contact his counsel by phone. Dates were set for the hearing of this application.

At a subsequent case management meeting on September 8, 2022, filing dates were set for both the application for leave and theapplication on the merits, if leave was granted. issues [43] Should the claim of the Plaintiff be dismissed for want of prosecution? law and analysis [44] As a preliminary submission, counsel for the Plaintiff asserts that the Court has no jurisdiction to dismiss the action for want ofprosecution in light of the wording of Rule 40.11. That Rule read as follows: 40.11.

Where a plaintiff does not apply to set a proceeding down for trial, the defendant may apply to set it down for trial or apply tothe Court to dismiss the proceeding for want of prosecution, and the Court may order the proceeding to be dismissed or make an orderthat is just. (Emphasis added). [45] Because this proceeding was already set down for trial, counsel for the Plaintiff submits that Rule 40.11 does not apply.

Icannot agree with that submission for two reasons. [46] Firstly, the Rule is drafted such that it gives a defendant either the option to set the matter down for trial or apply to have theproceeding dismissed. The Rule is premised on the principle that it is the Plaintiff who is required to advance their matter through courtand take steps to set the matter down for trial. In this case, it was Canada that applied to force the filing of a certificate of readiness andthen sought to have the action dismissed. That resulted in trial dates being set.

As such, it is evident that the Plaintiff did not apply to setthe proceeding down for trial. [47] Secondly, the court’s authority to dismiss a proceeding for want of prosecution derives not only from the authority granted to itunder Rule 40.11, but also from its inherent jurisdiction as a superior court. [48] At paragraph 12 of the leading Newfoundland and Labrador Court of Appeal decision in Penney v. Lush (1996), (NL CA), 139 Nfld. & P.E.I.R. 114, 433 A.P.R. 113 (Nfld. C.A.), Gushue, J.A. cited Allen v. Sir Alfred McAlpine & Sons Ltd.,[1968] 1 All E.R. 543, 2 Q.B. 229 (Eng.

C.A.) as follows: 12 The comments of Salmon, L.J. in the same case are also instructive. He stated at p. 561: A defendant may apply to have an action dismissed for want of prosecution either (

a) because of the plaintiff’s failure to comply with theRules of the Supreme Court or (

b) under the court’s inherent jurisdiction. In my view it matters not whether the application comes underlimb (

a) or (b), the same principles apply…. [49] As such, whether I exercise my authority under the Rules or the Court’s own inherent jurisdiction, I must apply the sameprinciples enunciated at page 561 of Allen and cited at paragraph 12 of Penney: … They are as follows: In order for such an application to succeed, the defendant must show: (

i) that there has been inordinate delay. It would be highly undesirable and indeed impossible to attempt to lay down a tariff so manyyears or more on one side of the line and a lesser period on the other. What is or is not inordinate delay must depend on the facts of eachparticular case. These vary infinitely from case to case, but it should not be too difficult to recognize inordinate delay when it occurs. (ii) that this inordinate delay is inexcusable.

As a rule, until a credible excuse is made out, the natural inference would be that it isinexcusable. (iii) that the defendants are likely to be seriously prejudiced by the delay. This may be prejudice at the trial of issues between themselvesand the plaintiff, or between each other, or between themselves and the third parties. In addition to any inference that may properly bedrawn from the delay itself, prejudice can sometimes be directly proved. As a rule, the longer the delay, the greater the likelihood ofserious prejudice at the trial.

[ 50 ] Counsel for the Plaintiff does not dispute that this generally represents the law to apply on an application to dismiss for delay. However, she submits that if I were to dismiss the claim for delay at this time, I would be essentially overturning a decision of the applications judge made in September, 2019. At that time, the applications judge did not dismiss the action but, instead, set the matter down for trial.

As a result, he must have found that the test to dismiss for want of prosecution had not been met. [ 51 ] Counsel for the Plaintiff further submits that the delay since that first application has not been occasioned by any inexcusable delay on the part of the Plaintiff. The delay of the September, 2020 trial date was occasioned by the discovery of the diminished cognitive capacity of the Fifth Defendant and the resulting need to retain counsel.

The trial did not proceed in November 2020 as the individual Defendants brought applications to strike the pleadings as disclosing no cause of action, which ultimately resulted in the claims against two individual Defendants being struck.

The next available trial dates were not until April, 2022. [ 52 ] With respect to the postponement of the April 2022 trial dates, counsel for the Plaintiff submits that she was too ill to conduct the trial and the delay is therefore excusable. [ 53 ] In determining the correct approach on a second application to dismiss for delay, I take guidance from the Ontario Superior Court of Justice decision in Avdeeva v. Estate of Levon Khankaldiyan , 2021 ONSC 4302 in which the court was faced with a third motion to dismiss an action for delay.

The court commented on whether the motions Master ought to have focused on the period since the second motion to dismiss or whether he should consider the whole course of action. [ 54 ] At paragraphs 39 to 43, the court noted the following as the correct legal analysis to follow where there have been previous motions to dismiss for delay. 39 First, where delay is intentional and contemulious, the action may be dismissed for delay: Woodheath Developments Ltd. v. Goldman 2001 CanLII 28019 (Ont.

S.C.), at para. 14 . 40 Second, the court must recognize that in the absence of an explanation for the delay, the delay must be presumed to be intentional: Berg v. Robbins 2009 CanLII 85303 (Ont. S.C.D.C.), at para. 13 . 41 Third, delay is contumelious when it is contemptible, abusive, or has arisen as a result of conduct that demonstrates a disdain or disrespect for the court process: Woodheath , at para. 15, Zamanifar v.

Mortezagholi, 2016 ONSC 6978 , at para. 10 . 42 Fourth, the appellant argues that where more than one motion to dismiss for delay has been brought, the focus should be on the delay that has not been absolved by the court. It relies on the Court of Appeal's decision in 1196158 Ontario Inc. v.6274013 Canada Ltd., 2012 ONCA 544 , at para. 25 , where, in the context of an appeal from a motion to dismiss for delay in a case where there were multiple status hearings, the court held that a lifeline order made at a status hearing did not absolve the plaintiff for all the delay prior to the order.

The court wrote: The plaintiff ignored the lifeline it had been given and failed to respect the timetable that had been set. Without repentance, there can be no absolution. The plaintiff did not emerge from the January 2010 status hearing with a clean slate and it was open to the status hearing judge to consider the entire history of delay. 43 I agree with the appellant that this is the appropriate legal analysis to follow. Where delay has been excused by a court, it should not be the focus of a subsequent court on a motion to dismiss for delay.

Unexcused delay, however, can properly be the focus of a subsequent motion to dismiss. [ 55 ] This Court has also had occasion to consider a matter in which there had been a second application to dismiss for delay. In Fennelly v. Lloyd’s Underwriters , 2016 NLTD(G) 1, the defendants brought an application to dismiss the matter for want of prosecution. As the applications judge who heard that first application to dismiss, I found that a delay of nine and one-half years from the date the cause of action arose, and seven and one half years from the filing of the claim, was inordinate and inexcusable.

However, there was no actual prejudice resulting from the delay. Further, the length of the delay, in and of itself, did not constitute sufficient evidence of prejudice. I therefore declined to grant the application to dismiss. [ 56 ] However, by the time the second application was decided by Justice Burrage in Fennelly v. Lloyd’s Underwriters , 2021 NLSC 160 , an additional four years had passed with little progress being made to have the matter set for trial.

Justice Burrage relied on my findings that the delay to the date of the first application was inordinate and inexcusable and then focused on the delay in the intervening four year time period. By that time, the parties had conducted some discoveries. It was apparent during the oral discoveries that the memories of key witnesses had faded, thereby demonstrating actual prejudice. Justice Burrage also found that prejudice could be inferred by the length of the delay i.e. in excess of thirteen years.

He therefore allowed the application to dismiss. [ 57 ] In that case, it was clear from my written decision that I had not given a “clean slate” to the Plaintiff when I declined to allow the first application to dismiss. In contrast, in the matter now before me, no written decision was rendered in respect of the first application to dismiss for delay. [ 58 ] However, I do have the record of the September 2019 appearance. It is evident from the Court record that the time allotted that

day was insufficient to fully adjudicate the application. The Court time had been booked for the prior application to have a certificate ofreadiness filed and to have the matter set down for trial. Counsel for Canada had advised the Court in advance of the September 2019date that she would need more time for the application to dismiss and the other parties were all either late filing materials or had notactually been able to file anything. [59] As such, the applications judge used the limited time available to practically deal with the matter.

He ordered that the matterbe set down for trial, as requested on the prior application that was still outstanding, and ordered costs against the Plaintiff. [60] He did not hear detailed submissions on the requisite test for dismissal for delay and counsel acknowledged to me that theapplications judge did not make rulings on the three elements. As such, there is nothing to indicate that the applications judge found thatthe delay to that point was not inordinate. Nor can it be said that he found the delay to be excusable.

He also did not address the issue ofwhether there had been any prejudice. [61] In essence, he provided the Plaintiff with a lifeline by ordering that the matter be set for trial quickly. He further ordered thatno further applications or steps be taken without leave of the Court. In particular, he stated the following to counsel for the Plaintiff: “There’s been three applications to the Court trying to get this thing resolved. It’s really, I mean, you should consider yourself fortunatethat you’re escaping it being dismissed, quite frankly.

And I think that at the very least that the Defendants are entitled to their costs. So,that’ll be the costs on the application before … Justice Marshall, Justice Boone and today.” [62] In light of the circumstances surrounding the first application to dismiss, I therefore find it is appropriate to consider the entirehistory of delay, including the pre- and post-September 2019 delays.

However, in doing so, I recognize that the circumstances presentedto the applications judge on September 2019 did not cause him to dismiss the action. [63] I will therefore now consider all three aspects of the test argued by counsel. 1. Has there been inordinate delay? [64] While there is no hard and fast rule for the length of delay that will be deemed inordinate, a review of cases submitted byCanada reveals that courts have found inordinate delay when matters had not been put down for trial anywhere from five years toeighteen years from the time the claim was filed.

Consideration has also been given to the length of time that has passed since the eventsgiving rise to the cause of action occurred. [65] In Dawe v. Brown (1994), (NL SC), 120 Nfld. & P.E.I.R. 40, 373 A.P.R. 40 (Nfld. S.C. (T.D.)), atparagraph 8, Hickman, C.J. held that a delay of five years from the date of issuance of the statement of claim was inordinate and onewhich, under ordinary circumstances, should not be tolerated. [66] In Penney v. Lush (1994), (NL SC), 127 Nfld. & P.E.I.R. 103, 396 A.P.R. 103 (Nfld.

S.C. (T.D.)), a fiveyear delay from the date of issuance of the statement of claim was determined to be an inordinate delay. [67] In Halifax Insurance Co. v. Hunt, [1992] N.J. No. 154, 33 A.C.W.S. (3d) 1046 (Nfld. S.C.(T.D.)), Barry, J. held that a delay ofalmost sixteen years from the time the cause of action arose and nine years from the date the statement of claim was issued wasinordinately long, unexplained and inexcusable. [68] In Kilfoy v. Shanahan’s Investigation and Security Ltd. (2010), CarswellNfld 486 (Nfld.

S.C. (T.D.)), Handrigan, J. found aneight-year delay from the time the event occurred to be inordinate. [69] A decision in which the lapse of time is similar to that before me is the Ontario Superior Court of Justice decision in Horgan v.Law Society of Upper Canada, 2012 ONSC 4540 in which a plaintiff’s claim was dismissed for delay. Over twenty-five years hadpassed since the conduct giving rise to the cause of action and almost fifteen years has lapsed since the close of pleadings. [70] In this matter, the delay from the time the cause of action arose is more than twenty-four years.

The delay from the issuance ofthe claim is over eighteen years. Almost thirteen years have passed since counsel for the Plaintiff took carriage of the file. [71] I have no hesitation in concluding that the above time periods represent an inordinate delay in having the matter heard. If thefirst application had been fully argued on its merits in 2019, I also find it highly likely that the applications judge would have found thedelay to that date (i.e., twenty-one years from the time the cause of action arose and fifteen years from the filing of the claim) to beinordinate. 2.

If there has been inordinate delay, is that delay excusable? [72] In Dawe v. Brown, in excusing the delay, the Court took account of the plaintiff’s lack of appreciation of court procedures andhis financial inability to retain a lawyer. Similarly, I note that for the period of delay from July 9, 2004 to November 2009, the plaintiffwas not represented by counsel. That is a factor that may excuse some of the delay. However, the plaintiff has demonstrated throughoutthat he is somewhat familiar with the Court process and has no hesitation in putting his position forward.

As such, the entirety of thefive and one-half year delay has not been explained. [73] There is also five and one-half years of unexplained delay between the appointment of counsel in November 2009 and the startof the exchange of Lists of Documents in June 2015. [74] Document exchange concluded in January 2016 and the only other steps were a discovery of the Plaintiff in May 2016 followedby a two year and three month gap until a representative of the Province was discovered in August 2018.

Counsel for the Plaintiff wasthen mostly non-communicative with counsel for Canada and the Province until applications were filed by Canada.

[ 75 ] There has been little to no explanation for such a delay, either in the response to the first application or this application, on a matter that has involved only two discovery examinations. [ 76 ] Given the position on the effect of the September 2019, counsel for the Plaintiff focused primarily on the reasons for delay since September 2019. She submitted that the Plaintiff was not responsible for the September 2020 trial dates being delayed.

The trial was delayed because it had only recently come to light that the Fifth Defendant had signs of dementia for which he was being followed medically. [ 77 ] However, it is notable that this only came to light once the Court, of its own volition, asked the parties to attend a pre-trial conference in early September 2020. It was during that appearance that one of the sons of the Fifth Defendant brought this to the Court’s attention.

Counsel for the Plaintiff was urged by all parties to discontinue against the Fifth Defendant so that the trial could proceed but counsel for the Plaintiff would not do so. [ 78 ] As a result, the first days set for trial were dealt with determining whether the Fifth Defendant was capable of representing himself. Ultimately, counsel was appointed to represent the Fifth Defendant. That counsel filed an application to strike the claim against the Fifth Defendant on the basis that it disclosed no reasonable cause of action.

The other individual Defendants followed suit, resulting in the rescheduled November 2020 trial dates being used to argue the applications to strike.

I subsequently found that the claims against the Fifth and Third Defendants had no reasonable prospect of success and struck those claims. [ 79 ] With respect to the postponement of the trial in April 2022, I am aware that there was a disagreement between counsel in the weeks leading up to trial as to who would be calling the investigating officer as a witness. [ 80 ] Counsel for Canada advised counsel for the Plaintiff that she would not be calling this individual as a witness as the retired officer could not testify for medical reasons.

On the other hand, counsel for the Plaintiff insisted that Canada must subpoena him. It was only two weeks before the scheduled trial date that counsel for the Plaintiff caused a subpoena to be issued from this Court for this witness who resided out of Province. However, she did not file an application under the Interprovincial Subpoena Act , R.S.N.L. 1990, c.

I-20 to ensure the subpoena could be enforced outside the Province. [ 81 ] After the exchange regarding this witness, there appears to have been little to no communication until counsel for the Plaintiff advised the parties and the Court by email early on the Monday morning of the first date of trial that she was too ill to conduct the trial. Counsel for Canada had already flown from Nova Scotia to attend and witnesses had been subpoenaed. [ 82 ] The matter was called in Court on the first day scheduled for trial and counsel for the Plaintiff appeared by phone.

Counsel for the Plaintiff advised that she had been ill the preceding week and had cancelled all her appearances in Provincial Court. She said she had hoped to feel well enough to start the trial on Monday but that was not possible. [ 83 ] As an entire week had been booked for the trial, it was agreed to call the matter the next day to see if counsel was well enough to continue. Counsel for the Plaintiff appeared by phone again the next day and confirmed she was still not well enough to represent her client.

While not requested by the Court, counsel for the Plaintiff indicated she would be providing a note from her doctor confirming she was medically unable to conduct the trial. That note was not provided. [ 84 ] The next appearance on this matter was a case management meeting on June 9, 2022 in which counsel for the Plaintiff did not appear. Counsel for the Plaintiff later explained that she had mistakenly left her cell phone in a taxi and therefore could not call into the conference. [ 85 ] Counsel for Canada points to these delays as being inexcusable delays.

In all the circumstances, I agree that the Plaintiff’s conduct of the action in the months leading up to the scheduled trial in April 2022 and during the Spring of 2022 is not indicative of a party who was intent on diligently advancing their claim without delay. In particular, the Plaintiff took positions with respect to applications and discontinuances that were unfounded and thereby delayed the trial.

However, these were tactical decisions and I would not characterize them as a deliberate attempt to delay the trial. [ 86 ] With respect to the delay of the trial in April 2022, counsel for the Plaintiff is an officer of this Court and, absent evidence to the contrary, I accept counsel’s word that she was too ill to proceed with the trial. No medical note was requested or required. With respect to the failure to appear on the case management meeting on June 9, 2022, I agree that the explanation provided by counsel is not entirely satisfactory.

However, the failure to appear did not cause any delay as dates were set for the hearing of the application in any event. It did, however, result in another unnecessary case management meeting. [ 87 ] However, as noted at the outset, when considering the delay, I will consider the entirety of the conduct of the action. There were two periods of five and one-half years each when there was lengthy and inexcusable delay. Further between January 2016 and September 2019 the only steps taken by the Plaintiff were to examine a representative of the Province and attend a discovery examination of the Plaintiff.

Overall, I find that the delays noted above represent unexcused delay. [ 88 ] Further, even after the Plaintiff was given a lifeline when the matter was set for trial in 2019, the Plaintiff did not demonstrate any particular efforts to ensure the matter was ready for trial. All filings by the Plaintiff were late, leaving little ability to deal with new issues quickly. 3.

Are the Defendants likely to be seriously prejudiced by the delay? [ 89 ] Having determined that the delay is both inordinate and inexcusable, I must then consider the issue of prejudice. [ 90 ] As noted at paragraph 12 of Penney , noted above, the court may draw an inference of prejudice from the delay itself or prejudice may be directly proved. Generally, the longer the delay, the greater the likelihood of serious prejudice at the trial. [ 91 ] In the second decision in Fennelly , Burrage, J. inferred prejudice when thirteen years had passed since the claim was filed.

[ 92 ] In circumstances similar to those before me, at paragraph 36 of Hogan v. Law Society of Upper Canada , the court noted that a delay of fifteen years from the close of pleadings and twenty-five years since the conduct giving rise to the cause of action, in itself, gave rise of a presumption of prejudice. [ 93 ] Counsel for Canada rightfully notes that there is significant and increasing risk that prejudice will arise the longer the period of cumulative and ongoing delay. It is only reasonable to infer that people’s memories will fade over time and do not improve with advancing age.

It is the Plaintiff who ran the risk of substantial prejudice in not advancing the claim over the years. Further, it is not unreasonable to infer that parties and witnesses may develop medical conditions that impair their ability to participate in the trial process. [ 94 ] In considering the case law and the logical inferences of delay on trial fairness, I find it reasonable to infer prejudice from this lengthy delay of eighteen years since the filing of the claim and more than twenty-four years since the events giving rise to the cause of action occurred.

It must also be remembered that the alleged acts giving rise to the criminal charges occurred approximately forty years ago. [ 95 ] However, even if I am not correct in inferring prejudice from the length of the delay, I must consider the evidence of actual prejudice. There is significantly more evidence of prejudice now than there had been on the first application.

When that first application was filed, the applications judge had no evidence of any actual prejudice to the Defendants other than the death of the Fourth Defendant. [ 96 ] At this point in time, we know that, not only is the Fourth Defendant deceased, but medical evidence was presented in September 2020 that the Fifth Defendant was experiencing dementia, including memory loss, to the point that he could not adequately represent himself or follow along with testimony. [ 97 ] In Horgan , the court noted the fading memories of witnesses is evidence of actual prejudice, especially when the issues in the claim depend on the recollection of those witnesses.

As noted at paragraph 49, there was a substantial risk that a fair trial might not now be possible in all of the circumstances. [ 98 ] In Halifax Insurance Co. , Barry, J. noted at paragraph 12 that extensive delay, in itself, gives rise to an inference of serious prejudice.

However, when coupled with actual prejudice, i.e. the deaths of the defendants, the delay was so prejudicial as to warrant a dismissal for the plaintiff’s action. [ 99 ] The Plaintiff acknowledges the death of the Fourth Defendant and the symptoms of dementia of the Fifth Defendant but asserts that no prejudice would be suffered by the Defendants.

It is only the Plaintiff who will be prejudiced. [ 100 ] However, the claim of the Plaintiff is premised on the argument that the criminal allegations against the Plaintiff arose as a result of the hostile relationship between the Plaintiff and the individual Defendants. The suggestion is that the original individual Defendants, as a group, participated in providing false information and allegations to the investigating RCMP officers and the Crown prosecutor.

If Canada, the Province and the remaining Defendants cannot adduce evidence from the Fourth and Fifth Defendants to counter the evidence of the Plaintiff on this point, it is difficult to imagine how there would be no prejudice to the Defendants. [ 101 ] Further, prior to the rescheduled April 2022 trial dates, it also came to light that the RCMP investigator who had been assigned to the matter more than twenty-four years ago advised that he was not able to testify for medical reasons. [ 102 ] There has been no discovery examination of the Fourth or Fifth Defendants or the investigator and the Plaintiff asserted in her submissions in September 2019 that all intended discovery examinations were complete.

As a result, their evidence is effectively lost at this point in time. While it is true that the Defendants could have conducted discovery examinations of these co-Defendants and witness, there is no obligation on a defendant to do so and a defendant should not be faulted for failing to preserve oral evidence when a plaintiff has delayed in advancing their claim. [ 103 ] Finally, I note that at prior Court appearances, I heard from the remaining individual Defendants as to the impact this long- standing litigation has had on their mental health and well-being.

They advised they are at the point where they must put their health before their defence. It is only reasonable to take notice of the stress that can result from litigation that hangs over the head of a defendant for years. Generally, the longer the case is prolonged, the greater the stress. [ 104 ] In considering the prejudicial effect on the Defendants, I must keep in mind the reason that prejudice is a requirement in order for a defendant to succeed in dismissing a claim for delay. One of the Court’s overarching concerns is to ensure trial fairness for all parties that appear before it.

While courts do not want to dictate how a plaintiff advances their claim by laying down hard and fast rules on when a plaintiff’s claim should be dismissed for delay, where a plaintiff’s inordinate and inexcused delay leads to a substantial risk that there cannot be a fair trial, the court must intervene. [ 105 ] In this case, I am satisfied not only that serious prejudice can be inferred from the length of the delay but there is substantial evidence of actual prejudice.

In light of the length of the delay, the nature of the claims and the need to rely on the memories of witnesses, I find there is a substantial and unacceptable risk that the trial of this matter cannot be conducted fairly. [ 106 ] Given this serious prejudice, I order that the claims of the Plaintiff against Canada and the Province be dismissed for want of prosecution. In making this order, I have intentionally only dismissed the claims against those two Defendants as the First and Second Defendants did not file their own applications to dismiss.

Further, they did not personally appear or file anything to indicate that they supported the application of Canada or wished to mirror that application and seek the same relief, as did the Province. Nor were they present to speak to the issue of costs. I further recognize that the Second Defendant filed a Counterclaim against the Plaintiff and I do not know whether he wishes to continue with that Counterclaim. As a result, without hearing from these parties, it would not be appropriate for me to now make such an order dismissing the claims against them. [ 107 ] I will therefore

schedule a case management meeting with all parties to finalize the terms of the order resulting from these

reasons and to determine next steps in the matter. costs [ 108 ] As the successful party, the Sixth Defendant is entitled to costs of this application. [ 109 ] In determining the appropriate award of costs, counsel for Canada asks that I consider the decision in Henley Estate (Re) , 2019 NLSC 54 in which Orsborn J., awarded successful parties their “wasted costs”. In that decision, the applicants had requested solicitor- client costs for time that had been wasted in preparation for an application. The respondents had changed their argument and the basis of the application.

Orsborn, J. noted the following at paragraph 184 of the decision: … Their failure to put this position clearly to the other parties and the Court on a timely basis is worthy of sanction. The costs award should reflect the Court's disapproval of the approach taken by John and Christopher to the Brian Henley Application, an approach which achieved nothing other than adding to the time and expense of this litigation.

A costs award which approximates solicitor and own client costs is appropriate . [ 110 ] Further, at paragraph 175 of the decision, Orsborn, J. quoted from a decision of the Supreme Court of Canada in British Columbia (Minister of Forests) v. Okanagan Indian Band , 2003 SCC 71 , which, in turn, quoted from a leading Canadian text on costs authored by Orkin as follows: … [M]odern costs rules accomplish various purposes in addition to the traditional objective of indemnification. An order as to costs may be designed to penalize a party who has refused a reasonable settlement offer; ...

Costs can also be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice. [ 111 ] Justice Orsborn was not willing to characterize the conduct of the parties and their counsel as improper or a deliberate attempt to delay proceedings. However, he did find that it fell far short of what would be expected of senior counsel.

The failure to put a position clearly to the other parties and the court on a timely basis was worthy of sanction.

He therefore awarded a fixed sum of costs representing the hourly rate for time spent on preparation and in court on the application. [ 112 ] Relying on that decision, counsel for Canada asks that I award costs of this application as well as these “wasted” or “thrown away” costs for appearing at the trial that was postponed in April, 2022. [ 113 ] While I agree with counsel for Canada that the solicitor for the Plaintiff ought to have provided notification to the Defendants of her illness before the end of the week preceding trial, there is insufficient evidence that this was a deliberate attempt to delay the trial or that failing to so advise is worthy of sanction.

I will accept that counsel for the Plaintiff had hoped to be in a position to proceed with the trial on Monday morning.

Even if she had advised the parties in advance of her potential inability to conduct the trial, it is unlikely that any counsel would have stopped preparing for trial or that they would have agreed to a postponement in advance. [ 114 ] However, I am prepared to award counsel for Canada and the Province costs of this application, including the two case management meetings that were required to set this matter down. [ 115 ] In doing so, I have considered the circumstances of the second case management meeting in August 2022 that was necessitated by the failure of counsel for Plaintiff to appear at the first case management meeting in June 2022.

I am prepared to exercise my discretion to award costs to Canada and the Province on Column 5 of the Scale of Costs under Rule 55 of the Rules for that appearance. I make this award in light of the unsatisfactory explanation of counsel for the Plaintiff as to why she was unable to advise her client, the Court, or any of the other parties that she would not be able to call into the first case management conference.

I agree that the costs of that second case management meeting were essentially thrown away by this failure to appear. [ 116 ] The costs for the remainder of the appearances shall be on Column 3 of the Scale of Costs established under Rule 55 of the Rules . [ 117 ] As none of the other parties participated in the application and did not appear, there shall be no award of costs in respect of those Defendants. conclusion [ 118 ] The claims against Canada and the Province are dismissed for want of prosecution.

Canada and the Province shall be entitled to their costs of this application and the case management conference of June 2022 on Column 3 of the Scale of Costs and on Column 5 of the Scale of Costs under Rule 55 of the Rules in respect of the August 2022 case management conference. [ 119 ] I will

schedule a case management meeting with all parties to finalize the terms of this order and to determine the next steps in this proceeding. _____________________________ Rosalie McGrath Associate Chief Justice