Anna Terrible Plaintiff v. Toys “R” Us (Canada) Ltd. Toys “R” Us (Canada) Lte. and, 2003 BCSC 457

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Terrible v. Toys “R” Us, et al 2003 BCSC 457 Date: 20030326 Docket: C974317 Registry: Vancouver Between: Anna Terrible Plaintiff And Toys “R” Us (Canada) Ltd. Toys “R” Us (Canada) Lte. and Toys “R” Us (Canada) Ltd. Toys “R” Us (Canada) Lte. doing business as Toys “R” Us and the said Toys “R” Us Defendants Before: The Honourable Mr. Justice Melnick Reasons for Judgment Counsel for the Plaintiff: P. Bisceglia Counsel for the Defendants: S.J.

Berezowskyj Date and Place of Hearing: March 21, 2003 Vancouver, B.C. [ 1 ] This is an application by the defendants pursuant to Rule 2(7) to dismiss the action of the plaintiff for want of prosecution. I. BACKGROUND [ 2 ] The plaintiff alleges that she was injured on the Burnaby premises of the defendants on August 11, 1995. She filed a claims incidental report with the defendants on August 15, 1995. She later engaged a lawyer, John W. Dobbin, who first corresponded with the defendants on September 13, 1996. Mr.

Dobbin caused a writ to be issued on August 7, 1997 and ultimately served it on the defendants on July 22, 1998. The defendants entered an appearance a few days later. No statement of claim has been filed. There was

correspondence between Mr. Dobbin and a firm of adjusters representing the defendants in July 1998. In May 2000, a new firm ofadjusters wrote to Mr. Dobbin to indicate that they now had the file, but were closing it. [3] It was not until the fall of 2002 that the plaintiff was advised by a custodian for Mr. Dobbin’s law practice that Mr. Dobbin wasno longer in practice. He has apparently been suspended by the Law Society for a period of time. The plaintiff, several months later,engaged her present counsel. She then discovered, through her present counsel, that no statement of claim had been filed.

She does notexplain why, over the many years that have elapsed, she did not make other enquiries of the status of her claim. It is approaching eightyears since the alleged accident. [4] The plaintiff’s present counsel, on January 8, 2003, filed a notice of change of solicitor and, on January 10, 2003, a notice ofintention to proceed. The defendants responded with this application. II. DISCUSSION [5] To succeed, the defendants must satisfy three conditions: that there has been inordinate delay; that the delay is inexcusable; andthat the delay has caused them serious prejudice. (See Irving v.

Irving (1982), (BC CA), 38 B.C.L.R. 318 (B.C.C.A.)). [6] Very rightly, Mr. Bisceglia, for the plaintiff, concedes that the first two conditions have been satisfied. However, the plaintifftakes issue with whether the defendants have established that the delay has caused them serious prejudice. [7] In that regard, Ms. Delia Labial-Tumak, the manager of the defendants' Burnaby store, says that, although she has been anemployee of that store since November 1994, she has no independent recollection of the alleged accident. She has found no records inthe store's customer incidental records that go back as far as 1995.

She also said that their employee turnover rate is high and, at present,no current employee, other than herself, was employed by the defendants in 1995. She has searched and found no record of employeesearlier than 1998. Thus, argues counsel for the defendants, they are prejudiced by not being able to contact any employees who mayhave witnessed, or have been aware of the circumstances of, the alleged accident. [8] Notably, however, the defendants make no reference whatever to what information may be in the file of their adjuster.

Thisincident was reported in a timely manner although I must say that is about all that has been done in a timely manner other than theentering of the appearance. Thus, one would expect that the defendants would have referred it to their insurers and from there to theadjusters. One would also expect the adjusters to have made themselves aware of any witnesses. I have no evidence that the adjustershad the names of witnesses which cannot now be located. To me, that is a significant hole in the evidence presented by the defendantson this application.

For example, perhaps there were no employee witnesses to the incident as suggested by Mr. Bisceglia. [9] Notwithstanding the very long delay in this case, I am not satisfied that the defendants have established that they have beenprejudiced. [10] Having said that, I also note that Mr. Justice Seaton in Irving said at p. 328 that the three factors above are only the primaryconsideration; all of the circumstances must be considered. In considering all the circumstances, I must ask if the balance of justicedemands that this action be dismissed? I think not. III. CONCLUSION [11] The application is dismissed.

There will be no order as to costs. “T.J. Melnick, J.”The Honourable Mr. Justice T.J. Melnick