Sorenson v. Saliken Landscaping Inc., 2020 BCPC 83

Citation: Sorenson v. Saliken Landscaping Inc. 2020 BCPC 83 Date: 20200309 File No: C-70166 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: LARRY SORENSON CLAIMANT (Respondent) AND: SALIKEN LANDSCAPING INC. DEFENDANT (Applicant) RULING ON APPLICATION OF THE HONOURABLE JUDGE V. CHETTIAR Counsel for the Claimant: Brahm Dorst, Taylor Nakai Litigation Counsel for the Defendant: Brian Grootendorst, Sorensen Smith LLP Place of Hearing: Surrey , B.C.

Dates of Hearing: May 1, 2019; July 3, 2019; September 3, 2019; November 15, 2019 Written Submissions: November 29, 2019; December 31, 2019; January 6, 2020 Date of Judgment: March 9, 2020 I. INTRODUCTION [ 1 ] On or about May 25, 2009, the Claimant, Larry Sorenson, hired the Defendant, Saliken Landscaping Inc. (“Saliken”), to install an irrigation system and do some landscaping work on his property located at 16339 30B Avenue, in Surrey, British Columbia (the “Property”).

[ 2 ] Saliken completed its work in or about July 2009, and, at Mr. Sorenson’s request, performed some adjustments to the irrigation system in or about July 2010. [ 3 ] In June 2011, Mr.

Sorenson commenced this action against Saliken for breach of contract and negligence (the “Action”), claiming damages of $25,000 and other relief. [ 4 ] In April 2019, Saliken applied to have the Action dismissed for want of prosecution, as almost 10 years had passed since it performed its work on the Property, and almost seven years had passed since the last Pre-Trial Conference was held on August 30, 2012 when the Action was adjourned, at Mr.

Sorenson’s request, to allow him to pursue his claim against Saliken in the Supreme Court of British Columbia (the “Supreme Court”). [ 5 ] Saliken filed a counterclaim against Mr. Sorenson, but later notified him that it does not intend to pursue its counterclaim, as stated in Saliken’s Trial Statement, filed February 7, 2019. Saliken’s counsel also informed the court, during the hearing of this application on May 1, 2019, that Saliken has abandoned its counterclaim. [ 6 ] Mr. Sorenson opposes Saliken’s application for dismissal of his claim.

He concedes that the delay Saliken alleges is inordinate, but says it is excusable and that Saliken has not suffered any prejudice as a result. He seeks dismissal of Saliken’s application. II. BACKGROUND AND CHRONOLOGY [ 7 ] I will first set out the background, the chronology of the relevant events, and the history of the court proceedings in this matter. [ 8 ] Prior to 2009, Mr. Sorenson had hired Messrs. Accili, doing business as C.O.P.S., to perform landscaping work on the Property. [ 9 ] From 2007 to 2016, Mr.

Sorenson was involved in an action that he brought against the Accilis (the “COPS action”) regarding their landscaping work on the Property. [ 10 ] In or about 2008 or 2009, Mr. Sorenson hired Mr. Bruce McTavish as a consultant to advice Mr. Sorenson on how to remediate the landscaping on the Property and as an expert in the COPS action. [ 11 ] In or about 2008, Mr. Sorenson hired another landscaper to remove the lawn the Accilis had installed and install a new lawn, but that work was not completed. [ 12 ] On or about May 25, 2009, Mr.

Sorenson and Saliken entered into a contract for the installation of an irrigation system and some landscaping services (the “Contract”), which is the subject of this Action. [ 13 ] At all material times, Mr. Wayne Saliken was the director of Saliken. [ 14 ] On or about the same time Mr. Sorenson hired Saliken, he also hired Mr. Tim Baker to do the drainage work on the Property. [ 15 ] In or about July 2009, Saliken completed its work on the Property. [ 16 ] In or about July 2010, at Mr. Sorenson’s request, Saliken performed certain adjustments to the irrigation system, at no cost to Mr.

Sorenson. [ 17 ] In 2011/2012, Mr. Sorenson obtained some quotes to repair the landscaping and related work on the Property. [ 18 ] On June 10, 2011, Mr. Sorenson filed a Notice of Claim commencing this Action. His address noted on the Notice of Claim was that of a law firm. [ 19 ] On July 6, 2011, Saliken filed a Reply, including a counterclaim. Saliken was not represented by legal counsel at the time. [ 20 ] On July 26, 2011, Mr. Sorenson filed a Reply to Saliken’s counterclaim. His address noted on his Reply was that of the same law firm noted on his Notice of Claim. [ 21 ] In November 2011, Mr.

Sorenson’s father passed away, and subsequently he was involved in an action that he brought against his sister, relating to his late father’s estate (the “Deveau action”). [ 22 ] On January 17, 2012, a Settlement Conference was held. [ 23 ] A Pre-Trial Conference was scheduled for August 30, 2012, due to Mr. Sorenson’s unavailability in June, July, and most of August 2012. [ 24 ] On August 30, 2012, a Pre-Trial Conference was held, and at Mr. Sorenson’s request, the Action was adjourned generally to allow Mr.

Sorenson to pursue his claim against Saliken in the Supreme Court. [ 25 ] Between 2012 and 2018, in addition to the current Action, Mr. Sorenson initiated and was involved in at least five other court actions, four in the Supreme Court and one in this court. [ 26 ] In 2014, Mr. Sorenson retained Mr. McTavish to provide an expert opinion on whether Saliken’s work was done to applicable standards. [ 27 ] In 2014, Mr. Saliken was on an advisory board (the “Board”) to the school of horticulture, and Mr. McTavish also sat on that Board as the department chair of the school of horticulture. At that time, Mr.

McTavish was also the co-chair of the B.C. Landscape

Nursery Association (the “BCLNA”), which is the industry association for the landscapers and nursery industry in British Columbia. Mr.Saliken was a member of BCLNA at that time. [28] Effective January 1, 2016, Mr. McTavish resigned from the Board and as co-chair of the BCLNA. [29] On January 19, 2016, a Notice of Change of Address was filed, changing Mr. Sorenson’s address to that of his current counsel,Mr. B. Dorst. [30] In February and April 2016, Mr. McTavish, with the assistance of Dr. H. Timmenga, carried out observations and testing of thelandscape on the Property. [31] In July 2016, Mr.

Sorenson settled the COPS action. [32] On or about October 19, 2017, Mr. Sorenson’s counsel wrote to Mr. McTavish to follow up on Mr. McTavish’s opinion onSaliken’s work. [33] On or about November 13, 2018, Mr. Sorenson’s counsel requested the court registry to

schedule a Settlement or Pre-TrialConference. [34] A Trial Conference was scheduled for February 21, 2019. [35] On February 4, 2019, a Notice of Change of Address was filed, changing Saliken’s address to that of its current counsel, Mr. B.Grootendorst. [36] On February 7, 2019, Saliken filed its Trial Statement. [37] On or about February 14, 2019, Mr. Sorenson’s application to postpone the Trial Conference scheduled for February 21, 2019,was granted, with the consent of Saliken. [38] On or about February 15, 2019, Mr.

McTavish released an expert report, dated February 15, 2019, opining on “whether thelandscape [on the Property] has been done to a workmanlike standard or done to the applicable landscaping and irrigation standards”. [39] On March 5, 2019, Mr. Sorenson filed his Trial Statement. [40] On March 20, 2019, a Trial Conference was held. [41] In March 2019, Mr. Sorenson provided Mr. McTavish’s expert report to Saliken. [42] On April 5, 2019, Saliken filed this application to have the Action dismissed for want of prosecution. [43] On May 1, 2019, the hearing of this application commenced. III.

ISSUES [44] The main issue in this application is whether the Action should be dismissed for want of prosecution. In other words, whetherSaliken’s application should be granted. [45] However, Mr. Sorenson questioned whether this court had the jurisdiction to dismiss an action for want of prosecution.Although his counsel, on the first day of the hearing, appeared to agree that this court had the jurisdiction, and the appropriate legal testto be applied is that set out in Irving v. Irving, (BC CA), he later argued otherwise, and suggested a different test basedon Bracken v.

Timberview Developments Ltd., 2017 BCPC 63. Therefore, I will address the jurisdiction issue first. [46] During the hearing, another issue came up as to whether or not Mr. McTavish was qualified to provide opinion evidence oncertain issues. I rendered an oral ruling on this issue on November 15, 2019, which I have attached as an Appendix to this ruling on themain issue. I ruled that Mr.

McTavish was properly qualified as an expert in soils drainage on residential-scale landscaping projects, andthat he may provide expert opinion evidence for the limited purpose of responding to the Impugned Statements (as defined in my earlierruling). IV. DISCUSSION A. Jurisdiction [47] Saliken submits that this court has jurisdiction to dismiss a claim for want of prosecution under

Section 2 of the Small ClaimsAct, RSBC 1996, c. 430 (the “Act”), and Rule 16(6)(

o) of the Small Claims Rules, BC Reg 261/93 (the “Rules”). [48]

Section 2 of the Act reads as follows: 2

(1) The purpose of this Act and the rules is to allow people who bring claims to the Provincial Court to have them resolved and to haveenforcement proceedings concluded in a just, speedy, inexpensive and simple manner.

(2) Subject to this Act and the rules, in conducting a hearing the Provincial Court may make any order or give any direction it thinksnecessary to achieve the purpose of this Act and the rules. [49] Rule 16(6)(

o) of the Rules reads as follows:

(6) A judge may make any of the following orders after a hearing: (

o) any other order that a judge has the power to make and notice of which is served on another party. [50] The Rules contain a number of provisions that specifically permit the court to dismiss a claim, including for non-compliancewith certain rules. [51] However, there is no specific rule in the Rules, similar to Rule 22-7(7) of the Supreme Court Civil Rules, B.C. Reg. 168/2009,which states:

(7) If, on application by a party, it appears to the court that there is want of prosecution in a proceeding, the court may order that theproceeding be dismissed. [52] The oft-cited authority on the issue of dismissal for want of prosecution is Irving v. Irving. It discusses the applicable test,which has been applied in many cases in British Columbia. The test is as follows (see, Irving, at para. 8): (1) that there has been inordinate delay. . . . (2) that this inordinate delay is inexcusable. . . . (3) that the defendants are likely to be seriously prejudiced by the delay. . . .

If the defendant establishes the three factors . . .

In the end, the court must decide whether or not on balance justice demands that theaction should be dismissed. (the “Irving test”) [53] The parties indicated that there are next to no reported cases at the provincial court level dealing squarely with the issue ofdismissal for want of prosecution, where there has been no breach of, or gap in, the Rules, or before a trial on the merits of the case hasbeen held. [54] The parties referred to a few provincial court cases wherein the court discussed its authority to dismiss a claim, but theseinvolved breaches of, or gaps in, the Rules.

Bracken was the only one, where there was no issue of a breach of, or a gap in, the Rules, butthe application for dismissal in Bracken was made after the hearing of the evidence at trial. [55] Saliken referred to Yewchuk v. Cleland, 2002 BCPC 200, wherein the defendants applied to have the claim dismissed due to theclaimant’s non-compliance with Rule 7(9) of the Rules, which required the claimant to file a certificate of readiness by the time requiredby the Rules. The court found the almost 15-month delay in this case to be inordinate.

In applying the Irving test, the court, at paras. 10and 11, said: [10] I have reviewed the authorities provided respecting the applicable principles. Kern et. al. v. Watson et al., a decision of theSupreme Court of British Columbia of March 20, 1997 (Vancouver registry, No. C920143) involved an application to dismiss a civilclaim for want of prosecution. The court applied the test from Irving v.

Irving (1982) (BC CA), 38 B.C.L.R. 318(C.A.): There must be inordinate delay; the delay must be inexcusable, and the delay must cause serious prejudice or be likely to causeserious prejudice to the applicant. [11] The same test should be applied here because the potential result, loss of the right of action, is the same, and the relevantconsiderations are the same. [56] Saliken also referred to Gradley v.

Doig Baily McLean Greenbank Murdoch, 2000 BCPC 25, wherein the court, at paras. 6 and7, said: [6] It is, I believe, common ground that I have the authority under s. 2 of the Small Claims Act or s. 19 of the Small Claims Rules todismiss this particular claim for what amounts to want of prosecution. That discretion lies in either s. 2(1) which allows me as thepresiding judge in conducting a hearing in Provincial Court to make any order or give any direction I think necessary to achieve thepurposes of this Act and the Rules.

Section 19(1) of the Rules provides that if an individual does not obey a direction of the court, I maydismiss the claim or application. [7] That having been said, I should, I believe, be guided in the exercise of my discretion by the state of the law that exists in BritishColumbia for dismissal for want of prosecution.

Supreme Court Rule 2(7) contains the statutory codification of the rule. [57] The court in Gradley applied the Irving test and concluded, at para. 11, that a dismissal of the claim would not result in asubstantial injustice. [58] Saliken admits that Gradley was a unique case in that the court dismissed the claim for want of prosecution after a trial on themerits of the case had been held. It acknowledges that the court in Bracken had reservations about Gradley.

The court in Bracken, atpara. 289, said: [289] At the trial, I expressed some concern that a judge of this Court had the jurisdiction to dismiss a claim for want of prosecution;something Mr. Morgan urged me to do on December 12, 2016 in his closing argument. He then drew to my attention a decision ofThrelfall PCJ in Gradley v.

Doig Baily et al, 2000 BCPC 25, wherein he considered an application brought by the defendant to dismissthe claimant’s case for want of prosecution at which application the claimant was represented by counsel and dismissed the claimant’sclaim seeking apparently damages for wrongful dismissal. This order was made after hearing all the evidence at trial on the basis thatthe claimant had not in 20 months filed a written argument dealing particularly with issues of credibility as directed by the court after thetrial concluded.

He took the view that the claimant is [sic] not doing so had essentially abandoned its case as a result of the evidence at

trial and that further delay would prejudice the defendant. He found that the discretion he had was based on s. 2 of the Small Claims Actand Rule 19(1). Thus this case might seem to support the view that I do have a discretion (and jurisdiction) to dismiss a case forwant of prosecution and potentially even after all the evidence is heard at trial. I find this latter proposition unsettling in theextreme. The decision in Gradley surely is fact driven.

The claimant was a lawyer and had been directed to file a written argument, was20 months late in doing so, on at least two occasions Threlfall PCJ had directed Registry staff to contact the claimant (which assumedlyoccurred) with no result and he found in essence as a fact that the defendant could take the view that the claimant had abandoned hisclaim as a result of the evidence at trial. He found the unexplained delay was such that the defendant was likely to be prejudiced by it.

Thus he granted the application to dismiss for want of prosecution. (my emphasis) [59] The court in Bracken chose not to follow Gradley. [60] In Bracken, the defendant, in its closing submissions, invited the court to dismiss the claimant’s claim for want of prosecutionor as an abuse of process. The court, in Bracken, at para. 288, said: [288] I have carefully considered Mr. Morgan’s 20-page written argument . . . and cases in support. . . . I do not intend to deal with allof these cases one by one. In Kemp v. Dickson, 2006 BCSC 288, Mr.

Justice Groberman notes at para. 23 the respondent’s reliance onthe case of Homer Estate v. Eurocopter S.A., 2003 BCCA 229, where the court noted that striking a pleading was a draconian remedyonly to be invoked in the most egregious cases because it deprives the litigants of a trial on the evidence. So too does a dismissal forwant of prosecution and I am of the view that this principle in Homer can be considered whereas here, an application is made to dismissfor want of prosecution. It should only succeed in the clearest of cases where there is egregious delay causing real prejudice to theapplicant.

Otherwise, it is the business of the court to do what I have done – decide cases on the merits. [61] Mr. Sorenson’s counsel says that Bracken does not suggest that there is never jurisdiction under s. 2(2) of the Act to dismiss aclaim for want of prosecution, but that such an application should only succeed in the clearest of cases, where there is egregious delay,causing real prejudice to the applicant; otherwise, the court should decide the case on its merits. [62] Mr.

Sorenson’s counsel emphasized that the dismissal of a claim prior to trial is a remedy that should be used with caution andonly in clear cases, as the court noted in Michell v. Emond, 2007 BCPC 295. In this case, the court was faced with an application fordismissal pursuant to Rule 7(14)(

b) and (i), and Rule 16(6)(

o) of the Rules. In discussing the test to dismiss a claim in the context of asettlement conference (Rule 7), the court, at paras. 4 to 6, said: [4] The Small Claims rules permitting dismissal of a claim prior to trial serve to weed out those claims which have no virtual chanceof success, without having to expend the resources of a trial.

The Judge who hears the application serves as a gatekeeper whose task it isto keep out those claims which have no merit, those which are unsupported by any evidence (without weighing the existing evidence)and those whose outcome can be easily determined without a significant expenditure of court time. [5] This application may be brought within the context of a settlement conference as rule 7 contemplates. It may also be done as aseparate application as part of the court’s mandate for “just, speedy, inexpensive and simple” resolution of claims (see Pierce v.

CanadaCustoms and Revenue Agency 2004 BCPC 307 , 2004 BCPC 0307). The dismissal of a claim prior to trial is a remedy thatshould be used with caution and only in clear cases. See Eco-Tourism 2010 Society v. Vancouver 2010 Bid Corporation and the Queen2005 BCPC 23; Cecil v. Holt-Renfrew 2001 BCPC 54 , [2001] BCJ No. 798; 2001 BCPC 54; Zablotniuk v. City of Vancouver[1999] BCJ No. 3067 (B.C.P.C.); Sigurdur v. Fung and Louie 2007 BCPC 239 , 2007 BCPC 0239. [6] Some examples of when this remedy is used are: (

a) where the claim in one for which the court lacks jurisdiction . . . (

b) where the issue can be decided on a point of law . . . (

c) where the facts on which the claim is based are not in dispute . . . (

d) where the claim is brought after the expiration of a limitation period . . . (

e) where the bringing of the claim constitutes an abuse of process . . . (

f) where a claimant in an action for negligence is unable to provide any supporting evidence of such negligence prior to trial . . . [63] Mr. Sorenson acknowledges that Saliken is not alleging any abuse of process. But, his counsel says, even where the rulesprovide explicit authority to dismiss a claim, such remedy is reserved for clear cases. [64] Mr. Sorenson’s counsel submits that the purpose of the Act is to “allow people who bring claims to have them resolved” (s.2(1)). He emphasizes the word “allow”, and submits that, according to Bracken, the test for dismissing a small claim for want ofprosecution, should be: (

a) in the clearest of cases; (

b) where there is egregious delay; (

c) causing real prejudice to the applicant. [65] I note that s. 2(1) of the Act does not stop after stating, the purpose of the Act is to “allow people who bring claims to have themresolved”. It goes on to state, “in a just, speedy, inexpensive and simple manner.”

[ 66 ] The proceedings to date in Mr. Sorenson’s Action can hardly be said to be speedy, inexpensive or simple, largely due to Mr. Sorenson’s inaction from 2012 to 2018, which I will discuss later. [ 67 ] In my view, the wording in s. 2(1) of the Act , which states, “allow people who bring claims to have them resolved,” does not mean that in every case, a trial must be held for a claim to be resolved. That would defeat the purpose of the many pre-trial processes provided in the Rules , specifically aimed at allowing people to resolve their claims in a speedy, inexpensive and simple manner.

The prime example is the settlement conference process, where many people who bring claims resolve their claims, with the assistance of the court, in a speedy, inexpensive and simple manner. [ 68 ] While I agree with the general principle that “the dismissal of a claim prior to trial is a remedy that should be used with caution,” I disagree with Mr.

Sorenson’s counsel’s articulation of the test, as extrapolated from Bracken , to be the proper test to be applied in considering a dismissal for want of prosecution. [ 69 ] The tried and accepted test is the Irving test, which has been applied in many cases in British Columbia. It recognizes that dismissal of a claim prior to trial is a draconian remedy.

It provides the proper framework to analyse the issues in a principled way; most importantly, it requires the court to consider whether, on balance, justice requires dismissal of the action. [ 70 ] The overarching objective of the court, under s. 2 of the Act , is to allow people who bring claims to have them resolved in a just, speedy, inexpensive and simple manner. The introduction to the Rules states: The purpose of these rules is to make it as easy as possible for people to use the court to resolve their disputes. If necessary, there will be a trial and a judge or a justice of the peace will decide the claim.

However, both sides are encouraged to try to come to an agreement. A settlement is always possible, even after a judge or a justice of the peace has made a decision . (my emphasis) [ 71 ] Section 2(2) of the Act allows the court, in conducting a hearing, to make any order it thinks necessary to achieve the purpose of the Act and the Rules . Rule 16(6) (

o) states that after a hearing, a judge may make any order the judge has the power to make, and notice of which is served on another party. [ 72 ] In the context of an application for dismissal of a claim for want of prosecution, the complaint invariably is that there has been an inordinate and inexcusable delay on the part of the respondent (claimant) in prosecuting the claim, resulting in serious prejudice to the applicant (defendant) in presenting a defence, and thereby creating a substantial risk that a fair trial is not possible. [ 73 ] In my view, the consideration of such a complaint is entirely within the scope of s. 2 of the Act .

Therefore, the court derives its authority from s. 2 of the Act to resolve such a complaint. Thereafter, under Rule 16(6) (o), the judge may make any order the judge has the power to make, including dismissing an action for want of prosecution. [ 74 ] I am satisfied that s. 2 of the Act and Rule 16(6)(

o) of the Rules provide this court with the authority and power to dismiss an action for want of prosecution. [ 75 ] I will now turn to the analysis of the main issue at hand. B. Dismissal for want of prosecution [ 76 ] I am fully cognizant that dismissing an action, other than on its merits, must be approached with “considerable caution”, as I have discussed earlier, and also as the court noted, at para. 19, in 0690860 Manitoba Ltd. (formerly known as PMC Builders and Developers Ltd.) v. Country West Construction Ltd., 2009 BCCA 535 . I approach the following discussion with that caution in mind.

Proper approach : [ 77 ] Even though Mr. Sorenson’s counsel suggested a different test (extrapolated from Bracken ), he agreed that the “framework developed by the Supreme Court is [a] useful guide for applications in Small Claims Court.” He then went on to make submissions on the factors under the Irving test. [ 78 ] More recently, the Court of Appeal for British Columbia, in Murrin Construction Ltd. v.

All-Span Engineering and Construction Ltd. , 2012 BCCA 251 , set out the proper approach to an application for want of prosecution, which the court in PMC Builders and Developers discussed after referencing the statement of the law in Irving . The court in Murrin , at para. 6, said: [6] The proper approach to an application to dismiss for want of prosecution is set out in PMC Builders and Developers Ltd. v.

Country West Construction Ltd., 2009 BCCA 535 , where the Court said, [27] ... [A] chambers judge charged with the hearing of an application for dismissal of an action for want of prosecution is bound to consider the following: (1) the length of the delay and whether it was inordinate; (2) any reasons for the delay either offered in evidence or inferring from the evidence, including whether the delay was intentional and tactical or whether it was the product of dilatoriness, negligence, impecuniosity, illness or some other relevant cause, the ultimate consideration being whether the delay is excusable in the circumstances; (3) whether the delay has caused serious prejudice to the defendant in presenting a defence and, if there is such prejudice, whether it creates a substantial risk that a fair trial is not possible at the earliest date by which the action could be readied for trial after its reactivation by the plaintiff; and

(4) whether, on balance, justice requires dismissal of the action. [28] I consider the fourth question to encompass the other three and to be the most important and decisive question. 1. Length of delay and whether it is inordinate [ 79 ] Saliken submits that Mr. Sorenson took no steps to advance the Action between July 2010, when it last did any work on the Property, and February 2019, when the last Trial Conference was initially scheduled. It says this was a delay of approximately nine years, and that it is inordinate. [ 80 ] Mr.

Sorenson submits that the delay was approximately six years, calculated from August 30, 2012, when the first Pre-Trial Conference was held, to November 13, 2018, when his counsel contacted the court registry to

schedule another Settlement or Pre-Trial Conference. [ 81 ] In Trak Energy Corporation v. Happy Valley Resort Ltd. , 2015 BCSC 1928 , the court, at para. 26, said: [26] In assessing whether delay is inordinate, it is the overall delay in prosecuting the action since it has been commenced that is usually to be considered rather than the delay since the last step in the litigation [citing Ed Bulley Ventures Ltd. v. The Pantry Hospitality Corporation, 2014 BCCA 52 , para. 38] .

This is not, however, a hard and fast rule, as the facts in any particular case may justify the court exercising its discretion to use a different date as a reference point. [ 82 ] The Action has been languishing for approximately eight years since it was commenced on June 10, 2011. [ 83 ] In the circumstances of this case, regardless of whether the delay is eight years or six years as Mr. Sorenson submits, it is inordinate, according to the case law. [ 84 ] Mr. Sorenson also concedes that his delay is inordinate. 2.

Whether the delay is excusable or inexcusable [ 85 ] The burden of proof is on the plaintiff to establish that the delay is excusable ( see, Steil v. Monroe , 2015 BCSC 2122 , para. 57 ). As a rule, until a credible excuse is made out, the natural inference would be that it is inexcusable ( see, Irving , para. 8 (2)). [ 86 ] Mr. Sorenson submits that the delay is excusable because of the following overlapping reasons: (

a) he was involved in ongoing related litigation until June 2016; (

b) he was suffering from chronic severe headaches from the summer of 2013 until May 2015; (

c) Mr. McTavish’s conflict of interest with Mr. Saliken, due to both of them serving on the Board from 2014 until January 2016; (

d) a lack of alternative qualified experts in British Columbia; and (

e) Mr. McTavish’s inability to produce his expert report due to his personal medical and business issues. [ 87 ] Saliken submits that Mr. Sorenson has not met his burden of proving that the delay is excusable. [ 88 ] I will address each of Mr. Sorenson’s reasons.

a) Related litigation [ 89 ] Mr. Sorenson suggests that the COPS action that he was involved in from 2007 to 2016 was related to this Action, because the main problem with the landscaping on the Property related to the sub-grading and the topsoil spread on the west side of the Property, and that was the reason Saliken was hired to fix that problem. The COPS action was resolved in June 2016. [ 90 ] Therefore, Mr.

Sorenson submits that resolving the related COPS action, before focusing on this Action, is a justified and excusable delay because, as he put it, “the Defendant [Saliken], by its inactivity, appeared to acquiesce to this delay. This justifies delay until June 2016.” [ 91 ] In support of this submission, he refers to Tundra Helicopters Ltd. v. Allison Gas Turbine , 2002 BCCA 145 , wherein the court, at para. 20, said: . . . In relation to the question whether the delay was excusable, the question was not whether the remaining defendants were "committed to " the arrangement.

It was enough that, by their inactivity, they appeared to acquiesce. [ 92 ] In response to this submission, Saliken says the facts in Tundra are vastly different from the facts in this Action. It points to para. 21 in Tundra , wherein the court said: . . . having regard to the whole of the circumstances including the fact that the four defendants in this action were defendants in the Texas action, it was not unreasonable for the plaintiffs to assume that all defendants were content with the approach proposed by Standard Aero.

On the face of it, it was as much, and perhaps more, to the benefit of the defendants as to that of the plaintiffs to await the outcome of the Texas action. The liability issue in the two actions was precisely the same. [ 93 ] I agree with Saliken that there is absolutely no comparison between the circumstances in Tundra and this Action.

[ 94 ] Other than the fact that the defendants in the COPS action and Saliken (the defendant in this Action) did landscaping work on the Property, there is no evidence to suggest how or why the Action and the COPS action were related. The defendants were not the same in the two actions. There is no evidence to suggest that Saliken even knew about the existence of the COPS action, or the nature or extent of the defendants’ alleged liability in that action, or that Saliken acquiesced to a delay in this Action to allow Mr. Sorenson to resolve the COPS action.

That being the case, how could Saliken possibly benefit from the delay resulting from the COPS action? [ 95 ] Mr. Sorenson’s related litigation argument, in the circumstances of this case, to put it mildly, is completely without merit.

b) Mr. Sorenson’s health issues [ 96 ] Mr. Sorenson submits that another reason for the delay relates to his health issues, particularly his headaches, which became severe in the summer of 2013, and were constant through to May 2015, when his doctor prescribed him nadolol. He says he suffers from numerous health issues that impair his capacity to deal with his affairs, but that it was during this period of constant headaches that his ability to handle litigation was most impaired. He says that excuses the two-year delay from the summer of 2013 to May 2015. [ 97 ] Mr.

Sorenson testified that he has battled cancer for many years, and that he also suffers from a number of other health conditions, including asthma, type 2 diabetes, sleep apnoea, and blocked carotid arteries. [ 98 ] His evidence was that in 2000, he was diagnosed and treated for cancer; around 2001, he was diagnosed with type 2 diabetes; in January 2015, he was diagnosed with sleep apnoea; and in 2018, he had a reoccurrence of cancer. [ 99 ] Saliken argues that Mr.

Sorenson has not provided any documentary evidence to show that his health conditions have prevented him from pursuing this Action. [ 100 ] It says, in fact, he has pursued five other active and ongoing court actions since he commenced this Action. [ 101 ] The evidence indicates that Mr. Sorenson initiated, and was involved in, the following court actions from June 2011 (when he commenced this Action) to November 2018 (when he took steps to reactivate this Action): Table 1 – List of Mr. Sorenson’s court actions as at April 5, 2019 (the date this application was filed) No. Style of Cause Action No.

Court Registry Date File Opened Date Last Updated 1. Larry Sorenson v. Dino Accili BCSC 107674 New Westminster Aug. 2007 Sept. 2016 2. Larry Sorenson v. Saliken Landscaping Inc. BCPC 70166 Surrey Provincial June 2011 Mar. 2019 3. Larry Sorenson v. Sharon Deveau BCSC 147203 Vancouver Sept. 2014 Mar. 2016 4. Larry Sorenson and Donna Sorenson v. Dream Kitchens Ltd. BCPC 79145 Surrey Provincial Dec. 2015 Dec. 2016 5. Larry Sorenson v. Dream Kitchens Ltd. BCSC 186054 New Westminster Dec. 2016 Jan. 2017 6. Larry Sorenson v. McLaren Trefanenko Inc.

BCSC 192932 New Westminster July 2017 Jan. 2018 [ 102 ] Saliken submits that the fact that Mr. Sorenson has been able to pursue five other court actions simultaneously with this Action, contradicts his assertion that his health conditions have prevented him from pursuing this Action in a timely manner. [ 103 ] The parties disagree as to whether or not Mr. Sorenson was able to “power through” and deal with his lawyers when a claim required his attention. [ 104 ] Mr.

Sorenson submits that there was a substantial gap of inactivity in his court actions between November 2012 (after the Pre- Trial Conference on August 30, 2012) and February 2016 (February 2016 being the period when Mr. McTavish commenced his field inspection on the Property). He also submits that there was no activity during the period of the summer of 2013 and May 2015, when his headaches were constant, except for one Affidavit that he signed relating to the Deveau action. [ 105 ] In support of this submission, Mr.

Sorenson points to a Notice of Application relating to the COPS action that he filed on March 8, 2016 (which is attached as Exhibit “C” to Mr. Saliken’s Affidavit, sworn April 4, 2019), and a Notice of Application relating to the Deveau action that he filed on November 21, 2014 (which is attached as Exhibit “D” to Mr. Saliken’s Affidavit, sworn April 4, 2019). [ 106 ] Saliken disagrees that there was a gap of inactivity, as Mr. Sorenson submits. It says the Notice of Application at Exhibit “C” relates to only one action Mr. Sorenson was involved in between 2012 and 2016.

Furthermore, it says: the Notice of Application has a purpose; only dates relevant to that application will be included in it; and it was not intended to reflect the timeline of the action as a whole. [ 107 ] Saliken also says the Notice of Application at Exhibit “D” was filed in 2014, during the period Mr. Sorenson claims there was “a substantial gap in activity.” This, it says, is contrary to Mr. Sorenson’s assertion that he was “inactive”. [ 108 ] I will first start with Mr. Sorenson’s overall health issues.

I will then address whether those issues, and in particular the constant headaches, form a part of the excusable delay. [ 109 ] While Mr. Sorenson has not produced any documentary evidence relating to his multitude of health issues, other than the letter from Dr. Mackie, dated May 15, 2015, indicating that Mr. Sorenson was placed on nadolol for his headaches, he did testify to the

various health issues he has been suffering from since at least 2000. [ 110 ] On the issue of lack of medical evidence, in the context of establishing excuse for inordinate delay, I have reviewed the case Saliken’s counsel submitted, namely, Canadian Star Development Corp. v. 0712276 B.C. Ltd. , 2018 BCSC 871 . In that case, the court said, at para. 38, that it had “a number of difficulties with Mr. Sial’s evidence and assertions,” one of which was that Mr.

Sial provided “no medical evidence beyond some heart health records from 2000 and a liver scan from a Pakistan hospital from March 2018.” After discussing the other concerns with Mr. Sial’s evidence and assertions, the court concluded, at para. 49, that Mr. Sial’s illness did not constitute even a partial reasonable excuse for the inordinate delay in that case. [ 111 ] In Mr. Sorenson’s case, I have no reason to doubt his evidence about his health issues.

He even offered to read his medical records into the court record. [ 112 ] He said, due to his various medical ailments, he also suffers from allergies, short-term memory loss, minor depression, fatigue and exhaustion, and with his headaches, they cumulatively interfere with his daily living. [ 113 ] He said he has good days and bad days, and on good days, he would arrange to deal with his court actions, but on bad days, he would not even be able to take his dog for a walk, let alone pursue a lawsuit, unless his lawyer was doing everything. [ 114 ] For example, regarding the Affidavit that he swore on November 20, 2014 in the Deveau action (during the period of his severe headaches, when he was not on nadolol), he said his lawyer called him in to sign the Affidavit, as “it was pretty well pre-prepared through a phone call discussion over a period of time . . . and they read it to me, then I went in to sign in front.” [ 115 ] In spite of Mr.

Sorenson’s various health issues over the years, what is striking is his discipline, mental strength, and resilience. The following quotes from Mr. Sorenson’s testimony support this observation: (

a) It would be the summer [2013] . . . I have constant headaches, but I was able to deal with them mentally, which means I pushed them aside. (

b) Even when I dealt with court cases or legal stuff I was able then to move most of the things, like phone calls and the odd meeting, I could change to a day I felt better . . . on the days that I didn’t have a choice, I’d basically do what my father taught me to do, suck it up and be a man and just go through it no matter how bad it is, then you’ll pay the price and that’s just what you’ve got to do. (

c) I live for the day and I deal with those things I can deal with and those things I can’t I try not to worry about. (

d) When I had cancer, I radiated and I resisted taking any kind of pain medication for it because I want to have a fairly high pain tolerance. I can stand pain, although not pleasant and not comfortable . . . I’ve had to learn as a child to deal with pain on a number of instances and I still deal with that as much as I can today. (

e) With the affidavit and some other things when I’m in pain, I go deal with it. Live through the pain. It’s like when I had my tongue cut, I still went to the dog park, I still did the odd thing, although in a great deal of pain, and not happy, not comfortable and may be a little irritable. (

f) If the lawyer in a lawsuit is looking after me and doing all the things necessary, then I just quite often just need to go sign, and sometimes they come to my home, and I sign.

So, I don’t need to do very much, especially on days that I’m not feeling well. (g) [when put to him that he has been involved in numerous lawsuits since 2009] . . . why I’m in lawsuits, I give an individual to do something and they do it extremely, in my view, shoddily, I get a second opinion whether it’s done shoddily and if that opinion comes back that it wasn’t done according to the standard of what they should’ve done, I give that person an opportunity to correct the problem. And when they don’t, I’m prepared to issue a lawsuit. [ 116 ] The evidence clearly indicates that Mr.

Sorenson was a disciplined and resilient man, who took whatever steps necessary to pursue and manage his affairs, if not solely by himself, with the assistance of others, including professionals such as his lawyers and consultants. [ 117 ] He certainly had the capacity to engage and instruct the professionals who were assisting him, regardless of his health issues. He found ways to work with them, even on his bad days, including arranging to have them come to his home when necessary.

He was involved in six active court actions, including this Action, during the period in question. [ 118 ] The Notice of Application in the COPS action indicates that the trial in that matter was scheduled for five days, commencing June 13, 2016. In all likelihood, Mr. Sorenson was aware of this and was prepared to go through with that trial. This document also indicates that he had sworn an Affidavit on March 4, 2016 in support of that application.

Surely, some effort went into this step. [ 119 ] The Notice of Application in the Deveau action indicates that that application was scheduled to be heard in the Supreme Court on December 11, 2014 (during the period of his severe headaches). There is no evidence to indicate the outcome of this application, and whether any further steps were taken before May 2015. Table 1 shows that as at April 5, 2019, the last update on this action was in March 2016. [ 120 ] Table 1 indicates that at least until January 2018, Mr.

Sorenson had conduct of, and was managing, other court actions, and yet he did not take any steps to move this Action forward until November 2018. [ 121 ] What is evident is that Mr. Sorenson did have the assistance of his lawyers to move his court actions along. He admitted that he was able to give instructions to his lawyers, even if only on his “good” days. So, there is no reasonable explanation as to why he could not have instructed his lawyers to move this Action along in a timely manner.

[ 122 ] I find that despite his health issues, Mr. Sorenson was capable of managing all of his court actions. [ 123 ] The evidence does not support Mr. Sorensen’s assertion that his health issues, or even only his severe headaches, form a part of the excusable delay.

c) Issues relating to expert witness [ 124 ] Mr. Sorenson submits that part of the reason for his delay in this Action is because he was unable to get an expert report from Mr. McTavish in a timely manner; firstly, because of Mr. McTavish’s conflict of interest with Mr. Saliken, due to both of them serving on the Board from 2014 until Mr. McTavish resigned from the Board effective January 1, 2016; and secondly, because, between 2016 and 2019, Mr. McTavish experienced various health issues and significant growth in his business which required his attention. Therefore, he did not receive Mr.

McTavish’s expert report until February 2019. [ 125 ] Mr. Sorenson also submits that there were no alternative qualified experts in British Columbia to provide an expert report for the purposes of this Action. [ 126 ] Mr. McTavish testified that he was first introduced to Mr. Sorenson in 2009, through the BCLNA to provide expert evidence in the COPS action. [ 127 ] In 2014, Mr. Sorenson, through his counsel, contacted Mr. McTavish to see if he would provide an expert report, but Mr. McTavish refused because he was on the Board with Mr. Saliken. [ 128 ] Mr.

McTavish gave extensive evidence as to why he was unable to provide his expert report until February 2019. Essentially, from 2016, his business started to grow exponentially and it required his full attention. From late 2016 and into 2017, he suffered a series of health issues, including shingles in November 2016, and then an eye surgery in February 2017. In addition, he said, he was procrastinating, and was hoping that the parties would get together and solve the problem without going to court. [ 129 ] Mr. McTavish said Mr.

Sorenson had some communication with him in 2016 about the report, but that he was not “hounded” or even contacted “weekly” or “monthly” to push him to get the report done. [ 130 ] In September 2017, Mr. Sorenson’s counsel called Mr. McTavish and asked, even if Mr. McTavish was unable to provide an expert report, whether he could provide some type of report to help Mr. Sorenson figure out how to fix the landscape on the Property. [ 131 ] Then, Mr. Sorenson’s counsel sent a letter to Mr. McTavish, dated October 19, 2017 (which is in evidence as Exhibit 1), making the same request of McTavish.

This letter read in part as follows: The Saliken dispute relates to work done more than 6 years ago. We need to move this file forward aggressively now, or there is a risk that Mr. Sorenson will lose his legal rights for want of prosecution. . . . The objective at this stage is to produce a document that describes a scope of work so that Mr. Sorenson can get quotes and hire someone to do the scope of work described in your document. . . . Just tell us what’s wrong and how should we fix it? We do not yet require an expert report! (emphasis in original) [ 132 ] Mr.

McTavish explained that he did not understand from this letter that he did not have to do the expert report, but, at that time, there was “no real pressure” to provide an expert report. He did not start work on the report in the latter part of 2017 or in early 2018, even though, by then, his health was back to normal. He was busy dealing with the exponential growth in his business. [ 133 ] Mr. McTavish said, in that period of time, Mr. Sorenson contacted him several times a year to ask about the progress on the report.

He said, in 2019, there was a communication that was quite clear that this matter was moving forward, and that he “had to just stop doing other things and prepare this report.” [ 134 ] I agree with Saliken that it is the responsibility of Mr. Sorenson, and not Mr. McTavish, to pursue this Action in a timely manner. That includes managing others he engages in that process, such as his professional advisors and consultants. [ 135 ] Firstly, I note that even though Mr. Sorenson commenced this Action in 2011, he did not approach Mr. McTavish to give an expert report until three years later, in 2014.

In his Notice of Claim, Mr. Sorenson alleges that Saliken breached certain landscape and irrigation standards. So, from the outset, he knew, or ought to have known, that expert evidence may be required to prove his claim. Therefore, leaving aside all other arguments regarding delay, this delay itself is not reasonable. At the very latest, he should have started his search for an expert immediately after he got an adjournment, on August 30, 2012, to proceed to Supreme Court. [ 136 ] In 2014, Mr. McTavish declined to provide an expert report, as noted above. There is no evidence to indicate what efforts Mr.

Sorenson took, at this juncture, to seek out an alternative expert. [ 137 ] All that is before the court is Mr. McTavish’s evidence in response to Mr. Sorenson’s counsel’s question, “[d]id you refer Larry [Sorenson] to another qualified expert witness?”, to which Mr. McTavish replied, “[n]o, I didn’t.” [ 138 ] When asked, “[w]hy not?” Mr. McTavish explained that he did not know anyone else who did expert work, with the combination of soils background and landscape background. He said there was another retired landscaper in North Vancouver, British Columbia, who did expert reports, but that he had passed away.

He did not know when this person passed away, but recalled that the last time he saw this person was at a BCLNA function some time in 2014. [ 139 ] Mr. McTavish also said that he did not refer Mr. Sorenson to anyone else to do the expert report because:

(

a) he did not want to take the reputational risk of referring another landscaper to Mr. Sorenson because of the concern he had that the series of landscapers who had worked with Mr. Sorenson ended up in litigation; (

b) soil experts are not willing to do expert reports; (

c) there are good landscapers, who are educated as horticulturalists and have lots of experience, who would have the ability to evaluate a site, such as Mr. Sorenson’s, but they are all busy running their own businesses, and they have no interest in doing expert reports or being in court; and (

d) most industry persons do not want to end up in court, providing evidence against another industry person, who they might have to work with or interact with in association (BCLNA) events. [ 140 ] He said he asked the BCLNA if they knew of anyone who would do this kind expert report work, and they said, no, and that he was the only person they were aware of. [ 141 ] As Saliken points out, the BCLNA is only one source, and that too was consulted by Mr. McTavish. [ 142 ] Mr.

McTavish makes generalized statements about soil experts not willing to do expert reports, and qualified landscapers being too busy running their businesses, and that they have no interest in doing expert reports or being in court. [ 143 ] There is no evidence to show what concrete steps Mr. Sorenson took to secure an alternative expert. For example, did he approach anyone? If he did, who did he approach; when did he approach them; what were their responses? [ 144 ] I find it difficult to accept that Mr. McTavish was the only person qualified and willing to provide Mr.

Sorenson with an expert report. [ 145 ] At the very least, there was one other known expert in North Vancouver, who could have been approached between 2011 and 2014. There is no evidence that Mr. Sorenson did. [ 146 ] Finally, even though there was some delay on the part of Mr. McTavish to produce his report, the evidence indicates that Mr. Sorenson was not overly concerned about it. He followed up with Mr. McTavish only several times a year (between 2014 and 2019). The only indication in the evidence about any anxiousness about Mr. McTavish’s delay is the following statement contained in Mr.

Sorenson’s counsel’s letter dated October 19, 2017: The Saliken dispute relates to work done more than 6 years ago. We need to move this file forward aggressively now, or there is a risk that Mr. Sorenson will lose his legal rights for want of prosecution. . . . [ 147 ] I noted earlier that the evidence indicates that Mr. Sorenson is a disciplined man, capable of managing multiple court actions at the same time, in spite of his health issues. [ 148 ] Therefore, Mr. Sorenson’s lack of timely follow-up on Mr. McTavish’s expert report seems to lend credence to Saliken’s argument that Mr.

Sorenson’s delay was intentional and tactical, because even though he obtained quotes in 2011/2012 to have the landscaping and irrigation repaired, he did not pursue the Action at that time, because he understood that Mr. McTavish’s expert report would be beneficial to him, and that is why he waited until Mr. McTavish was able to provide his expert report. [ 149 ] Mr. Sorenson’s counsel pointed out that any amount of follow-up with Mr. McTavish would have made no difference in getting the report sooner, because Mr. McTavish was not responding due to his own issues, as discussed above.

In my view, even this assertion seems to bolster Saliken’s argument that Mr. Sorenson was prepared to wait any length of time, as he was keen on getting Mr. McTavish’s report for his own tactical advantage. [ 150 ] I am not satisfied that any delay caused by Mr. McTavish, or the fact that alternative experts were not easily available, form a part of the excusable delay in prosecuting this Action. [ 151 ] On the whole of the evidence, I find that Mr. Sorenson’s delay was inexcusable. 3. Whether the delay caused serious prejudice to the defendant [ 152 ] I now turn to whether Mr.

Sorenson’s delay has caused serious prejudice to Saliken in presenting its defence and, if there is such prejudice, whether it creates a substantial risk that a fair trial of the issues in this Action is not possible. [ 153 ] Since I have concluded that Mr. Sorenson’s delay was both inordinate and inexcusable, according to the case law, Saliken is presumed to have suffered prejudice . The onus is on Mr.

Sorenson to establish that Saliken would not be prejudiced (see, Trak Energy , at para. 49, citing Ed Bulley, at para. 51). [ 154 ] This presumption of prejudice is said to be a presumption of fact and not a presumption of law, and it was discussed in Tundra , at paras. 35 and 36, as follows: [35] I also regard it as error in principle to dispose of the issue of prejudice by asking whether the plaintiffs had rebutted ‘the presumption of prejudice that arises in the circumstances’ and by going on to answer that question in the negative. The "presumption of prejudice" is not a presumption of law.

It can be termed a presumption of fact but only in the sense, as it is put in Sopinka and Lederman " The Law of Evidence in Civil Cases ", 1974 at p. 378: The term "presumption of fact" is used in many instances in which it is desired merely to shift the secondary burden to a particular party. When used in this sense, it means that the facts are such that a certain inference should, but need not, be logically drawn.

[36] It is in that sense that the word "presumption" is employed in Busse v. Robinson Morelli Chertkow , supra. In considering whether the presumption of prejudice has any application in a particular case, the question properly to be asked, as stated by Goldie J.A. in para. 27 of Busse , is: ... has the plaintiff established on a balance of probabilities that the defendant has not suffered prejudice or that other circumstances would make it unjust to terminate the action? In considering that question it may be misleading to approach it by asking whether the plaintiff offered evidence on the point.

In most cases, it will only be the defendant who is in a position to offer evidence as to the existence of specific prejudice – as two of the defendants attempted to do in this case. The plaintiff often will be able only to point to the overall circumstances, including the absence of any evidence from the defendant of specific prejudice, as establishing on the balance of probabilities that serious prejudice has not been suffered. [ 155 ] Mr. Sorenson referred me to the following passages in Watts v.

Klaemt , 2006 BCSC 1870 , at paras. 17 to 21 : [17] Having found that the plaintiff has provided no evidence whatsoever to rebut the presumption of prejudice, is that the end of that particular questions? With respect, I think not. In my view it would be an error to ignore the facts and nature of the action in questions [ sic ] in determining whether the presumption of prejudice has been rebutted on a balance of probabilities. . . . [20] Some cases by their nature will be heavily dependant [ sic ] upon viva voce evidence generated from the active memory of various witnesses.

In such cases, detailed recollection as to dates, observations and other c ircumstances will be required. The presumption of prejudice is [ sic ] such cases will be bolstered and will be harder to rebut. [21] In other cases witness recollection, as to detail and nuance, may well be much less central to the determination of the case. Legislation, documents and/or other physical evidence will take the central role in such cases. Prejudice in these latter cases may still arise from circumstances such as the loss, deterioration or destruction of the physical evidence or documentation.

An example which comes to mind might be a case in which significant documents were in the form of early generation facsimile transmissions which are discovered to have faded to illegibility when the file is reactivated after a long delay. [ 156 ] Mr. Sorenson submits that Saliken has not suffered any prejudice, and points to the following factors regarding the facts and the nature of the Action in this case: (

a) this was a handshake deal followed by an engagement letter; (

b) there are not a lot of key documents, and no important documents are missing; (

c) the only direct witnesses to the terms of the Contract are himself and Mr. Saliken, and there is no dispute as to the basic terms of the Contract; (

d) the main issue in this Action is, to what standard Saliken’s work should have been performed, and the parties’ memories on this point are clear, as evidenced by their positions recorded in their pleadings; (

e) this is not a case that turns on any nuance or viva voce evidence from the active memories of witnesses; (

f) the primary evidence is physical evidence, namely the lawn and the irrigation system on the Property; (

g) there are no key witnesses who have passed away or whose memories have been lost; and (

h) the only key witness is Mr. McTavish who was initially reluctant, but has now provided an expert opinion on Saliken’s work. [ 157 ] I note that this list contains some disputed facts, which I will address shortly. [ 158 ] Saliken disagrees with Mr. Sorenson, and submits that there is an abundance of evidence showing that it has been seriously prejudiced by Mr. Sorensen’s delay. It says it has suffered prejudice in three ways: (

a) by a presumed prejudice as a result of the passing of nine years since the commencement of the Action in 2011; (

b) its inability to pursue a third-party claim against Mr. Baker; and (

c) its inability to obtain an accurate inspection of the landscaping on the Property. [ 159 ] It says any one of these three grounds, individually, is sufficient to establish that it has suffered prejudice, such that the Action should be dismissed. [ 160 ] I will discuss each of these three grounds, and address Mr. Sorenson’s submissions under these headings.

a) Presumption of prejudice [ 161 ] As I stated earlier, since I have concluded that Mr. Sorenson’s delay was both inordinate and inexcusable, according to the case law, Saliken is presumed to have suffered prejudice. [ 162 ] Mr. Sorenson agrees that the presumption of prejudice will be bolstered and will be harder to rebut if the key issues for the trial depended on witness memories.

[ 163 ] However, he says there are a number of factors (as set out above) that support the conclusion that Saliken did not suffer prejudice. I disagree with essentially all of those factors for the following reasons: (

a) The Contract was partly verbal and partly in writing. The pleadings and evidence indicate that the parties disagree on a number of its terms, including: (

i) whether the Contract specified what standards Saliken must meet; (ii) whether there was a formal scope of work that Saliken had to follow; (iii) whether Saliken was responsible for any part of the drainage work on the Property, in particular the subsurface grading; (iv) whether Saliken was required to supervise Mr. Baker’s work; and (vi) whether Saliken agreed to provide any warranty for its work. (

b) To defend the allegations Mr. Sorenson makes in his Notice of Claim, Saliken would likely require various witnesses, and most importantly, Mr. Baker (as the limitation period for him to be added as a third party in this Action has expired, which I will discuss in further detail later). (

c) Now, almost 11 years after the date the Contract was made and the original work was done, it is not unreasonable to conclude that the memories of the parties and potential witnesses would have faded. Courts in British Columbia have repeatedly recognized that memories fade over time (including, in some of the authorities the parties presented for my consideration). (

d) The other challenge, after all these years, is the availability and willingness of the witnesses to testify at trial. (

e) Since the Contract was partly verbal, and the only direct witnesses to it were Mr. Sorenson and Mr. Saliken, their memories would be critical in determining the terms of the Contract. Mr. Sorenson testified that he suffers from short-term memory loss. During his testimony, he had to refer to his medical records to confirm the dates of the diagnoses of his various health conditions because he could not remember them. Mr. Saliken also said that he could not remember all the communication he had with Mr. Sorenson. (

f) Saliken says that other than its invoices, bills, and some communication with Mr. Sorenson, it does not have much by way of documentation. It says due to Mr. Sorenson’s delay, it has been unable to gather evidence of the state of its work (including taking photographs of the landscaping) in a timely manner. Mr. Saliken testified that after the Pre-Trial Conference on August 30, 2012, he did not feel comfortable or welcomed to attend at the Property for any reason. (

g) While it is true that the physical evidence, namely, the lawn and the irrigation system on the Property, is important evidence, the terms of the Contract, and evidence of the extent of Mr. Baker’s work, are equally important in determining the ultimate issues in this Action. (

h) Mr. McTavish is not the only key witness in this Action. Certainly, so is Mr. Baker. If this Action had been diligently pursued before 2014, the North Vancouver landscaper Mr. McTavish referred to, may have been a key witness if either of the parties had engaged him to give expert evidence. Since he has passed away, that is not a consideration now. [ 164 ] Based on these factors alone, I find that Mr. Sorenson has not established, on a balance of probabilities, that Saliken has not suffered prejudice.

b) Inability to pursue third-party claim [ 165 ] It is not disputed that in or about the same time in May 2009, Mr. Sorenson hired both Saliken and Mr. Baker to do repair work on the landscape on his Property. [ 166 ] Mr. McTavish testified that he referred both Saliken and Mr. Baker to Mr. Sorenson, as evidenced by the following email message Mr. McTavish sent to Mr. Sorenson on May 24, 2009: I have two fellows confirmed to come to your place . . .

I know both of them well and think they can fix the drainage issues . . . you will probably have to strip the soil on the west side of the house and get the subgrade correct and then re-spread. The one fellow is a machine operator who has been doing this type of work for years and is very good at grading, the other fellow would do the finishing. [ 167 ] On cross-examination, Mr. McTavish clarified that the two fellows he was referring to in the above email were Mr. Saliken and Mr. Baker.

He said, “[i]f I’m talking about somebody doing drainage and grading, that would be Tim [Baker].” When questioned as to who the fellow he was referring to as “a machine operator who has been doing this type of work for years and is very good at grading,” he said, “[t]hat would be Mr. Baker.” [ 168 ] Mr. McTavish explained that on Mr. Sorenson’s Property, there are two major aspects to drainage.

He said: (1) the installation of drain lines under the subsoil to carry the rains away; and (2) the grading of the subsoil before putting topsoil, to ensure water that comes through the topsoil and hits the subsoil drains away from the house and into the catchments. [ 169 ] One of Mr. Sorenson’s main complaints in this Action is the puddling or pooling of water on the surface of the lawn due to improper drainage. [ 170 ] If this matter were to proceed to trial, as I said earlier, one of the key questions would be to determine if, and to what extent, Mr.

Baker’s work may have a bearing on the ultimate issues at trial. [ 171 ] Saliken says that it started defending this Action on its own, without the assistance of legal counsel.

[ 172 ] After the pleadings closed, since the Action was adjourned generally on August 30, 2012 to allow Mr. Sorenson to bring his action in the Supreme Court, Saliken did not retain legal counsel. [ 173 ] Mr. Saliken testified that he had a preliminary informal discussion about this matter with his brother’s family law lawyer, who advised him to just wait to hear from the courts regarding next steps. [ 174 ] Therefore, at that time, Mr. Saliken did not think to add Mr. Baker as a third party, and he was not advised to do so. He simply waited for Mr.

Sorenson to commence the Supreme Court action, which never happened. [ 175 ] Therefore, Saliken never retained legal counsel until February 2019, when the first Trial Conference (since the last one in 2012) was scheduled. [ 176 ] Saliken later discovered that its deadline to file a third-party claim against Mr. Baker had expired. [ 177 ] Saliken submits that had Mr. Sorenson pursued this Action in a timely manner, it would have retained legal counsel at that time. [ 178 ] As a result of Mr. Sorenson’s delay, Saliken submits that it has suffered specific and serious prejudice to its ability to add Mr.

Baker as a third party to the Action. I agree. [ 179 ] In light of the possibility that Mr. Baker may ultimately be found liable, even if to some extent, I find that the loss of Saliken’s ability to add Mr. Baker as a third party to the Action is highly prejudicial to Saliken.

c) Inability to obtain accurate inspection of the landscaping [ 180 ] One of the main issues in this Action is whether or not Saliken met certain standards in performing its work.

What standards it should have met is also at issue, as I have discussed above. [ 181 ] Regardless of what standards are determined to be the correct standards that Saliken should have met, to measure Saliken’s work against any standards, it is important to know what the state of Saliken’s work was, as at the date of its completion. [ 182 ] Saliken says that after it did its landscaping work in 2009, and some adjustments to the irrigation system in 2010, it did not know until late 2018 or early 2019 that this Action was proceeding after almost 10 years. [ 183 ] Saliken says that it cannot now obtain an accurate inspection of the landscaping on the Property for the following reasons: (

a) poor lawn maintenance, poor drainage, and passage of time can lead to soil compaction; and (

b) intervening events, such as Mr. Sorenson’s work in constructing a pond in the backyard of the Property, would have had a significant impact on the state of the landscaping on the Property. [ 184 ] Saliken submits that due to the passage of time, even Mr. McTavish could not have obtained an accurate report for the following reasons: (

a) Mr. McTavish did not take samples or inspect the Property until 2016, approximately seven years after the majority of Saliken’s work was completed on the Property; (

b) after Saliken completed its work and before Mr. McTavish took his samples, Mr. Sorenson ran heavy forklifts on the west side of the Property to construct a pond, which caused a sprinkler line on the west lawn to break; (

c) the forklifts and construction of the pond contributed to the compaction of the west lawn; and (

d) given the intervening events, it is not possible to determine the state of the landscaping on the Property as of 2010. [ 185 ] Saliken challenges Mr. McTavish’s statement that nothing could have changed the findings or opinions expressed in his report, regardless of whether the report was done in 2011, 2016 or 2019. His report does not take into account the impact of the construction of the pond on the west side of the Property. [ 186 ] Saliken says, while Mr.

McTavish admits that there are a number of factors that could lead to soil compaction and affect landscaping over time, he has not taken into account any number of intervening events that could have occurred on the Property. [ 187 ] Saliken submits it is simply not possible, now, after 10 years, to ascertain the state of Saliken’s work on the Property. As a result, it says, it has suffered serious prejudice. [ 188 ] Mr. Sorenson, on the other hand, relies on the expert evidence of Mr.

McTavish, who opined that the depth of topsoil in a lawn would not substantially change over time and the subsoil or subgrade would never change over time; therefore, testing for these factors could be objectively done at any time, and the results would not change. [ 189 ] However, Mr. McTavish explained that certain factors can affect the depth of the topsoil, leading to compaction of the subsoil. [ 190 ] He said, over time: (

a) there can be minor changes in the chemical composition of the topsoil; (

b) on a flat lawn, such as Mr. Sorenson’s, rain may cause a two percent loss of soil depth;

(

c) unless done on really wet soils, normal maintenance activities, including mowing or walking on the lawn, under normal conditions will cause minor compaction; (

d) natural elements may cause about five percent settlement; (

e) failing to maintain a lawn will result in an unhealthy lawn; (

f) failing to aerate a lawn will directly, and negatively, affect soil compaction, and that will in turn negatively affect drainage; however, core aeration will not substantially change the depth of the soil; (

g) poor drainage will affect soil compaction; (

h) soils compact if they are in a saturated state for long periods of time; and (

i) trafficking on constantly saturated soils will increase compaction. [ 191 ] Mr. McTavish said that the depths of the topsoil and the level of compaction he observed at the Property could only have been caused by the lawn having been so wet, and that the trafficking on that lawn under saturated soil conditions changed the structure of the soil and led to compaction. [ 192 ] The evidence indicates that the lawn on the Property was constantly wet, and there was trafficking on the Property; the significant trafficking being the construction of the pond in the backyard. [ 193 ] Mr.

Sorenson admitted that after Saliken finished its work, he started constructing a pond in the backyard, on the west side. His evidence was that he had a forklift operate on the Property in 2011, but not after that; he did not have any other vehicles driving on the Property; he had rocks delivered to his roadway or driveway, and they were then moved by hand or wheelbarrows, two or three at a time, along pathways paved with pavers, to the back of the Property; and the pond work is still ongoing. [ 194 ] Mr. McTavish agreed that driving a forklift or heavy equipment on lawns can cause topsoil compaction.

He said a forklift could easily have caused very site-specific linear compaction, but that he did not see any deep rutting that would have been indicative of heavy equipment running over the west side of the Property. [ 195 ] However, I note that Mr. McTavish did his testing in 2016, and the evidence indicates that Mr. Sorenson ran his forklift on the west side of the Property in 2011.

Therefore, it is not unreasonable to infer that any rutting from the forklift may not have been visible five years later, in 2016. [ 196 ] When questioned as to how he could have drafted an accurate report without taking into account the information about the construction of the pond and the use of a forklift on the west side of the Property, Mr. McTavish said that he randomly sampled and tested soil compaction and soil depth over the entirety of the lawn on the Property. [ 197 ] Mr.

McTavish said his testing indicated that the topsoil depth on the west side of the Property ranged from 0 to 30 centimetres, and that that is indicative of the subgrade being irregular. There was no issue with topsoil depths on the east side of the Property. However, he found soil compaction on both sides of the Property. [ 198 ] From Mr. McTavish’s evidence, it seems to me that the use of a forklift on the west side of the Property cannot be ruled out as a cause of, or contributing to, the lower topsoil depths on that side, as there were no issues with the topsoil depths on the east side. [ 199 ] Mr.

Sorenson testified that ever since he bought “an acre-plus property”, referring to the Property, he has been aerating it every year, except in 2019. He said he has a core aerator that he pulls behind his lawn tractor. He also has a de-thatcher, and a hand aerator with two spikes that he uses to mend specific areas.

He said he repaired the area, of about five feet, that the forklift damaged in 2011, by tearing it out and replacing approximately 10 inches of the laid-in pipe, and then hand-stamping the area. [ 200 ] What this indicates is that other equipment was also used on the Property, and there was, no doubt, foot traffic as well on the saturated lawns. [ 201 ] Mr.

McTavish opined that soils compact if they are in a saturated state for long periods of time, and trafficking on constantly saturated soils will increase compaction. [ 202 ] Therefore, it seems to me, that the trafficking I noted above, cannot be ruled out as a cause of, or contributing to, the soil compaction Mr.

McTavish found on both sides of the Property. [ 203 ] Other than the use of the forklift, the other activities are still ongoing, including the construction of the pond. [ 204 ] Therefore, I agree with Saliken that an accurate inspection of the landscape, as at the date of the completion of Saliken’s work in 2010, cannot now be obtained, 10 years later. [ 205 ] I find that this inability to obtain an accurate inspection of the landscape, due to Mr. Sorenson’s delay, is highly prejudicial to Saliken in fairly defending this Action. [ 206 ] In the end, Mr.

Sorenson has not established, on a balance of probabilities, that Saliken has not suffered prejudice due to his delay, or that other circumstances in this case would make it unjust to terminate the Action. [ 207 ] The overall evidence clearly indicates that Saliken has suffered serious actual prejudice due to Mr. Sorenson’s delay, creating a substantial risk that a fair trial of the issues in this Action is no longer possible.

4. Whether, on balance, justice requires dismissal of the Action [208] The last stage of the dismissal analysis is described in Irving, at para. 22, as follows: [22] The demonstration of inordinate delay, inexcusable delay and serious prejudice does not lead necessarily to dismissal. Those threefactors are only the primary considerations; all of the circumstances must be considered. It is still for the courts to decide "whether or noton balance justice demands that the action should be dismissed": Salmon L.J. in Allen v. Sir Alfred McAlpine & Sons Ltd., supra.

All ofthe statements of law are subject to the overriding principle that essential justice must be done. (See Freedman J. A. (as he then was) inRoss v. Crown Fuel Co. (1962), (MB CA), 41 W.W.R. 65 at 88, 37 D.L.R. (2d) 30 (Man. C.A.).) [209] As the court in Irving noted, at para. 8 (per Salmon L.J. in Allen): If the defendant establishes the three factors to which I have referred, the court, in exercising its discretion, must take into considerationthe position of the plaintiff himself and strike a balance. If he is personally to blame for the delay, no difficulty arises.

There can beno injustice in his bearing the consequences of his own fault . . . (my emphasis) [210] Here the delay has been significant. While Saliken was waiting in limbo for Mr. Sorenson to bring his Action in the SupremeCourt, Mr. Sorenson was taking his own time securing an expert report to strengthen his position in the Action, and was also managingfive other lawsuits, without any regard for the impact of his delay on Saliken. [211] No doubt, this was an intentional act on the part of Mr.

Sorenson, even if it cannot be said to be tactical – although Salikenargued that it was tactical. [212] In Canadian Star Development, the court, at para. 93, said: [93] In Northwest Organics [Northwest Organics, Limited Partnership v. Sam, 2017 BCSC 1088], this Court stated the following onthe balance of justice: [41] When balancing the interests of justice, two principles come into focus: an action should be brought to trial with reasonablediligence; and the longer the delay, the more likely it is that a fair trial cannot be held.

While dismissing an action is a harsh remedy, inthis case, the plaintiffs’ dilatory approach makes it very unlikely that there could be a fair trial on the merits. [213] Here, there is ample evidence that Saliken has suffered serious prejudice, and Mr. Sorenson’s dilatory approach has made it veryunlikely that there could be a fair trial on the merits for the following reasons: (

a) Some of the key terms of the Contract, including the scope of the work and standards to be met, are at issue. They cannot bedetermined without the active recollection of Mr. Sorenson and Mr. Saliken as to what they agreed to more than 10 years ago. Both haveindicated that their memories have faded. (

b) Mr. Baker’s evidence is critical in this case, especially in determining whether it was his responsibility or that of Saliken to dothe sub-grading. According to Mr. McTavish’s evidence, one of the key causes of water pooling on the Property is improper sub-grading. Mr. Sorenson pointed to some evidence, which he says indicates that it was Saliken that was responsible for the sub-grading,whereas Saliken said it was only responsible for the grading of the topsoil and not the subsoil. In any event, it is not necessary todetermine this issue for the purposes of this application.

But, the point is that the facts are disputed, and viva voce evidence is required toresolve them, as the limited documentary evidence that exists is unclear. (

c) As I have already discussed at length, due to the various intervening events between 2010 and 2019, however modest theirimpact on the landscaping may be, a current inspection of the state of the landscaping would not be an accurate indication of the state ofSaliken’s work upon its completion in 2010. [214] Mr. Sorenson argued that his claim should not be dismissed because Saliken has a counterclaim. This is contrary to the positionhe takes in his pleadings.

In his Reply to the counterclaim, he says there is no reasonable basis for success of the counterclaim, and heseeks a penalty under Rule 20(5) of the Rules. [215] In any event, this is a moot argument, as Saliken has abandoned its counterclaim. [216] Saliken’s counsel indicated, and I agree, that the amounts claimed in the counterclaim for legal advice and time spent indefending this Action are generally not recoverable in this court. [217] In Trak, the court, at para. 62, said it does not view the existence of a counterclaim as a bar to the dismissal of the claim,especially when there is a commitment to discontinue the counterclaim. [218] In all of the circumstances in this case, having found that there is a substantial risk that a fair trial of the issues in this Action isno longer possible, on balance, I conclude that justice requires dismissal of the Action.

V. ORDERS [219] I grant Saliken’s application, and dismiss the Action for want of prosecution. [220] For greater certainty, I confirm that Saliken has abandoned its counterclaim filed on July 6, 2011.

____________________________ The Honourable Judge V. Chettiar Provincial Court of British Columbia APPENDIX Sorenson v. Saliken Landscaping Inc., File No. C70166 Ruling of the Honourable Judge V. Chettiar, orally delivered on Nov. 15, 2019 [1] Mr. Sorenson takes issue with the sta

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