TODD CHADWICK v. WENDY CHADWICK,, 2023 NBKB 226

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON Todd Chadwick & Wendy Chadwick v. George W. Martin & Royal Bank of Canada (Third party) 2023 NBKB 226 MC/894/2012 BETWEEN: TODD CHADWICK and WENDY CHADWICK, Plaintiffs/Respondents – and – GEORGE W. MARTIN Defendant/Moving Party – and – ROYAL BANK OF CANADA Third Party DECISION BEFORE: Chief Justice Tracey K. DeWare AT: Moncton, New Brunswick DATE OF HEARING: December 12, 2023 DATE OF DECISION: December 14 th , 2023 APPEARANCES: Mark Sheehan, for the Plaintiffs Andrew Kinley and Philippe Frenette, for the Defendant

DeWARE, C. J. INTRODUCTION [ 1 ] The Defendant, George W. Martin, requests the dismissal of this action pursuant to Rule 26.01(

c) and Rule 26.04(1) of the New Brunswick Rules of Court . FACTS [ 2 ] Todd Chadwick and Wendy Chadwick commenced the action in July 2012 against the Defendant alleging professional negligence in the handling of a real estate transaction in June of 2010. The Defendant filed a Statement of Defence in October 2012 denying the allegations of negligence and requesting the dismissal of the action with costs. In November of 2012, the Defendant issued a third-party claim against the Royal Bank of Canada.

The third-party has yet to file a defence and did not participate in the hearing of this motion. [ 3 ] Affidavit of documents have not been exchanged in this matter. While the action filed by the Plaintiff on July 20 th , 2012 was filed pursuant to Rule 79 of the New Brunswick Rules of Court , none of the requirements of Rule 79 have been complied with by the parties.

In particular, the Court highlights the requirements of Rule 79.09: 79.09 Setting Down for Trial At the first Motions Day following 7 months after the close of pleadings, the plaintiff shall set the action down for trial in accordance with the procedure set out in Rule 47, except that all parties shall file and serve their pre-trial briefs and file their affidavits of witnesses and expert reports no later than that Motions Day. [ 4 ] In support of the motion for dismissal, the Defendant has filed with the Court an affidavit of Robert B.

Jackson, Director of Insurance for the Professional Liability Reserve Fund of the Law Society of New Brunswick. In the June 2023 affidavit, Mr. Jackson explained the various communications which took place between counsel for the Plaintiffs and the Defendant between may 2014 and October 2022. It is clear that in all of the communications between the parties, Defence counsel were seeking advice from Mark Sheehan, Plaintiff’s counsel, as to the status of the action and the need to move forward.

In addition to the numerous letters sent by Defence counsel to Plaintiffs’ counsel, there were also telephone calls between the lawyers in the fall of 2018, March 5 th , 2019, September 17, 2020, January 21 st , 2022, February 28 th , 2022 and July 12 th , 2022. [ 5 ] The last emails sent by Defence counsel, Philippe Frenette to Mr. Sheehan clearly express the Defendant’s mounting frustration as to the lack of progress on the file. Mr. Frenette’s emails as provided in the record of February 1 st , 2022, August 30 th , 2022 and October 11 th , 2022 state as follows: February 1, 2022 Mr.

Sheehan, We spoke 11 days ago regarding this matter. I gave you a deadline of January 31, 2022 to respond with your clients’ intentions regarding this matter, which you said would be sufficient to receive instructions. If your clients are not prepared to discontinue this matter, the delay in proceeding with this matter is completely unacceptable. If I do not hear from you by end of Friday, February 4, 2022, with confirmation that your clients are prepared to withdraw their action on a without costs basis, I will ask Mr. Cooper to prepare and file his Third Party Defence on behalf of RBC.

I will then push this matter to a motion for dismissal or to trial, where I will seek solicitor and

clients costs against your clients. You can also advise your clients that my client will actively pursue recovery of the costs against your clients, including filing necessary security interests against their real and personal property and will exercise all means of recovery possible. My clients have been more than reasonable in this matter, which has now sat silent for more than 7 years. I look forward to hearing from you at your earliest convenience, Sincerely, Philippe M. Frenette — — — August 20, 2022 Mr. Sheehan, Can I please get a response from you with your clients’ intentions regarding this matter?

I fail to understand why your client refuses to discontinue the action but also refuses to instruct you to move the matter forward. Kindly provide me with an update as to how this matter can progress. Sincerely, Philippe M. Frenette — — — October 11, 2022 Mr. Sheehan, Can I please have an update on this matter. Should proceeding to Court by way of Motion to get progress on this file become necessary, my client will be seeking costs. Sincerely, Philippe M. Frenette [ 6 ] The Plaintiffs filed no evidence in response to the Defendant’s motion. Mark Sheehan did appear on behalf of the Plaintiffs at the motion. Mr.

Sheehan explained part of the delay in this matter was the result of personal medical challenges he had experienced. As a long-standing officer of the Court, Mr. Sheehan’s explanation of these events is accepted. Mr. Sheehan underwent surgical procedures in 2015, 2018 and May 2023. Mr. Sheehan explained that he was “ out of commission ” for one or two weeks after each of these medical interventions. Mr. Sheehan further explained he has faced staffing challenges in his office and that his clients have been somewhat difficult.

ISSUES [ 7 ] The sole issue to resolve in this matter is whether or not it is appropriate to dismiss the action for delay pursuant to Rule 26.01 of the Rules of Court . LAW AND ANALYSIS [ 8 ] Rules 26.01 and 26.04(1) provide as follows: 26.01 Where Available A defendant who is not in default under these rules or under an order of the court, may apply to have the action dismissed for delay where the plaintiff has failed (

a) to serve his Statement of Claim on all the defendants within the time limited for so doing, (

b) to note in default any defendant for failure to file and serve his Statement of Defence, within 30 days after such default, or (

c) to set the action down for trial within 6 months after the close of pleadings . 26.04 Effect on Subsequent Action

(1) The dismissal of an action for delay shall not be a defence to a subsequent action unless so provided in the order dismissing the action.

(2) Where a subsequent action in respect of the same subject matter is brought before payment of the costs of an action dismissed for delay, the court may order a stay of the subsequent action until those costs have been paid. [Emphasis mine] [ 9 ] In The Province of New Brunswick v. Clayco Construction

(2001) Ltd et al, 2022 NBQB 66 , Justice Morrison set out the principles a court must consider when determining whether the dismissal of an action pursuant to Rule 26.01 is appropriate. Justice Morrison set out the framework for this analysis at paragraphs 22 to 24 as follows: [22] The principles governing the Court’s discretion to dismiss an action for delay are well settled. In order to succeed the moving party must establish that:

a) there has been inordinate delay;

b) the inordinate delay is inexcusable; and

c) the defendant is likely to be seriously prejudiced by the delay. (Régie régionale de la santé 6 v. Robichaud, 2009 NBCA 51 (“Robichaud”) (NBCA) ; Michaud v Robertson, 2003 NBQB 288 ; Ingalls v. Steeves, 2009 NBQB 163 ; 513012 N.B. Ltd. v. New Brunswick, 2013 NBQB 307 ; Levesque v. Réseau de Santé Vitalité¸ 2019 NBQB 200 ; J.D. Irving Ltd. v. Swain¸ 2020 NBQB 198 ). [23] The onus is on the defendant to demonstrate prejudice. In order to demonstrate serious prejudice the moving party must establish that he or she will not be able to properly defend the plaintiff’s claim because of the unavailability of witnesses, failing memory or any other such cause ( Levesque , supra, at para. 17 ).

[24] In cases of grossly inordinate delay, prejudice may be inferred and it then falls to the plaintiff to displace the inference(Michaud v. Robertson, supra; 513012 N.B. Ltd. v. New Brunswick, supra; J.D. Irving Ltd. v. Swain, supra). The discretion to dismissan action for delay should be exercised with caution and only in the clearest of cases (Robichaud; Betts v.

Norris, (NB CA), [1991], 120 N.B.R. (2d) 384 (NBCA)). [Emphasis mine] [10] The Plaintiffs have proffered no explanation for the inordinate delay in this matter other than the few weeks that regrettably Mr.Sheehan was suffering from some medical challenges. However, during the years 2017 – 2022 when the Defendant was attempting tomove the matter forward, the Plaintiffs did absolutely nothing. I accept in these circumstances that the delay is both inordinate andinexcusable. As noted by Justice Morrison in Clayco Construction, prejudice may be inferred when the delay is inordinate.

In thepresent matter, absolutely nothing has happened since the filing of the Statement of Claim in July 2012, over 11 years ago. In thesecircumstances, the onus falls to the Plaintiff to displace the inference that prejudice may be inferred. [11] The Plaintiffs filed no response to the Defendant’s motion. There is no sworn evidence before this Court to explain why theinordinate delay of over 11 years has not prejudiced the Defendant. Mr. Sheehan’s explanation of his challenges in 2015, 2018 and 2023is insufficient.

The Defendant has diligently tried to move this matter forward and received no cooperation from the Plaintiffs. In all ofthe circumstances, I am satisfied that the delay has been inordinate and inexcusable, which has resulted in serious prejudice to theDefendant. [12] The law is clear that the Court should only issue an order dismissing an action for delay in the clearest of cases. In my view, thisis one of those cases.

A plaintiff who has commenced a civil action against another party has a duty to diligently prosecute that action.The onus is not upon the Defendant to move the matter forward, and in circumstances where a defendant has attempted to move anaction forward for over a decade and received no collaboration form the plaintiff, dismissal is the appropriate remedy. CONCLUSION [13] The Defendant’s motion is granted. The Plaintiffs’ action is dismissed pursuant to Rule 26.01 with costs payable to theDefendant of $1,000.00.

DATED at Moncton, New Brunswick this 14th day of December 2023. _____________________________________ Tracey K. DeWare, Chief Justice of the Court of King’s Bench of New Brunswick