J.C. BEREZOWSKI FARMS INC. v. J.M. BEREZOWSKI FARMS INC., 2016 SKQB 94

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2016 SKQB 94 Date: 20 16 03 16 Docket: QB 262 of 2004 Judicial Centre: Yorkton BETWEEN: J.C. BEREZOWSKI FARMS INC. and J.M. BEREZOWSKI FARMS INC. PLAINTIFFS - and - PIONEER GRAIN COMPANY LIMITED and MONSANTO CANADA INC. DEFENDANTS Date: 2016 03 16 Docket: QB 263 of 2004 Judicial Centre: Yorkton BETWEEN: CLIFFORD LEIS PLAINTIFF - and -

PIONEER GRAIN COMPANY LIMITED and MONSANTO CANADA INC. DEFENDANTS Date: 2016 03 16 Docket: QB 264 of 2004 Judicial Centre: Yorkton BETWEEN: G.W. PHILIPCHUK ACRES LTD. PLAINTIFF - and - PIONEER GRAIN COMPANY LIMITED and MONSANTO CANADA INC. DEFENDANTS Date: 2016 03 16 Docket: QB 265 of 2004 Judicial Centre: Yorkton BETWEEN: JOHN REZANSOFF PLAINTIFF - and -

PIONEER GRAIN COMPANY LIMITED and MONSANTO CANADA INC. DEFENDANTS Counsel: J. Grubb, Q.C./R. Haack for the plaintiffs R. Rees for the defendants JUDGMENT LAYH J. March 16, 2016 OVERVIEW [ 1 ] Richardson Pioneer Limited [Pioneer], the successor to the defendant, Pioneer Grain Company Limited, applies to have the claims in four different actions – QB 262, 263, 264 and 265 of 2004 in the Judicial Centre of Yorkton – struck for delay in prosecution. Monsanto Canada Inc. [Monsanto] is named as a co-defendant in each action.

I will refer to these claims as the “Pioneer Actions.” The plaintiff in each claim is a farmer dissatisfied with the results of a canola crop grown in 2002. [ 2 ] The late Orest Rosowsky, Q.C. of Rosowsky Campbell (as it then existed) issued the claims in the Pioneer Actions on July 28, 2004. Mr. Rosowsky died in 2007. Filed on the court file is a “Notice of Change of Solicitor” dated September 24, 2007 naming Rusnak Balacko Kachur Rusnak [RBKR] as the new solicitors for the plaintiffs in each of the Pioneer Actions.

In this application, Rhiannon Rees of RBKR swore an uncontroverted affidavit stating that several actions were commenced (presumably by Mr. Rosowsky) by 22 farmers against Pioneer, Agricore United or United Grain Growers Limited [UGG], all respecting canola losses. The four Pioneer Actions, apparently, are among the 22 actions.

So, too, are five more actions in the Judicial Centre of Yorkton bearing QB numbers consecutive to the Pioneer Actions, namely QB 266, 267, 268, 269 and 270 which were consolidated into one action in QB 266 by order of March 5, 2013 [UGG Actions]. [ 3 ] At the chambers application on February 1, 2016 I stated to counsel that I could find no proof of service of the statement of claim upon either defendant, Pioneer or Monsanto, in the Pioneer Actions. I raised this issue with counsel particularly since, absent service of the statement of claim, further problematic issues would present themselves.

I permitted counsel to provide further materials to clarify whether service of the statements of claim has been effected. [ 4 ] In response, I received from RBKR explanatory correspondence (dated February 2, 2016) addressed to the local registrar to be brought to my attention, enclosing five further items of correspondence, described as follows: a. Covering letter to D’Arcy & Deacon, legal counsel for Monsanto, from Rosowsky & Campbell, dated December 23, 2004, closing the statements of claim; b.

Four letters from Rosowsky & Campbell sent by certified mail to Pioneer Grain Company Limited dated December 23, 2004, closing the statements of claim respecting the Pioneer Actions; c. Letters from James Richardson International to Rosowsky & Campbell, dated January 6, 2005, acknowledging receipt of the statements of claim upon Pioneer; d. Letter to James Richardson International from Rosowsky & Campbell, dated January 20, 2005, confirming that statements of defence were not required without further notice; and e.

Letter from D’Arcy & Deacon to RBKR, dated July 16, 2008, stating its intention to defend certain actions in which Monsanto was named as a defendant. [ 5 ] In response to the correspondence from Ms. Rees of RBKR, Rachel Haack of Miller Thomson provided response correspondence to the local registrar, dated February 3, 2016.

Essentially, Miller Thomson takes the position that the statements of claim in the Pioneer Actions have not been properly served and particularly not before six months had lapsed from issuance of the claims. [ 6 ] Neither counsel in her correspondence of February 2 and 3, 2016 provided sworn affidavits. However, since Miller Thomson has not denied or challenged the existence of the four letters that Ms. Rees provided to the court, I will consider the letters as

though they had been attached to a sworn affidavit from Ms. Rees. [ 7 ] Given this general overview, I will pose the issues and provide the necessary analysis to determine the merits of Pioneer’s application. ISSUES [ 8 ] Two issues arise: a. Did the plaintiffs in the Pioneer Actions properly effect service of the statements of claim on Pioneer? b. Should the Pioneer Actions be struck for want of prosecution?

ANALYSIS Service of the Statement of Claim [ 9 ] If the statements of claim in the Pioneer Actions have never been served, as Pioneer now alleges in its February 3, 2016 correspondence, the plaintiffs will face a different set of problems. The six month time for service of an issued claim will have lapsed without an extension order. [ 10 ] I have reviewed the proceedings taken on the Pioneer Actions and, to some extent, the UGG Actions (as the latter actions were among those specifically referenced in Ms.

Rees’s affidavit, they were issued the same day as the former actions, they also name Monsanto as a co-defendant, and they allege the same claims against UGG as are alleged against Pioneer in the Pioneer Actions). Many mysterious developments are apparent in the Pioneer Actions and UGG Actions since their inception nearly 12 years ago. [ 11 ] From the date of issuance of the statements of claim in the Pioneer Actions and the UGG Actions – July 28, 2014 – the statements of claim were neither sent to, nor served upon, Monsanto or Pioneer for nearly five months.

Then, by correspondence of December 23, 2004 (as referenced in para. 4(

a) above), Mr. Rosowsky sent correspondence to D’Arcy & Deacon, legal counsel for Monsanto, stating that his office represented 10 Saskatchewan plaintiffs and Roy Dawson of Dauphin, MB represented 16 Manitoba plaintiffs in actions against Monsanto. Mr. Rosowsky enclosed 26 statements of claim and wrote, “It is our understanding that your office will accept service of all Statements of Claim on behalf of Monsanto Canada Inc.” Mr. Rosowsky stated that a statement of defence was unnecessary and he would provide notice if a defence was later required. [ 12 ] On the same day, December 23, 2004, Mr.

Rosowsky sent four separate letters to Pioneer in Winnipeg, MB respecting the Pioneer Actions (as referenced in para. 4(

b) above). The letters were ostensibly sent by certified mail since each bears the notation “CERTIFIED MAIL” and four consecutively-numbered, hand-written notations LC039126674 to LC039126677. Each letter simply stated, “Please find enclosed Statement of Claim for service upon you.” Two weeks later, on January 6, 2005, Jean-Marc Ruest of Pioneer’s legal department replied to Mr. Rosowsky (as referenced in para. 4(

c) above), describing the plaintiffs in the four Pioneer Actions and confirming that serving a statement of defence was unnecessary unless he received notice. By correspondence of January 20, 2004 (as referenced in para. 4(

d) above), Mr. Rosowsky replied, confirming that a statement of defence was not required at that time. [ 13 ] After this exchange in 2004, neither the court file nor affidavits reveal further developments until the Notice of Change of Solicitors was filed on October 25, 2007, naming RBKR as legal counsel in all of the Pioneer and UGG Actions. [ 14 ] Then, a newcomer appears on the court file.

By correspondence dated April 15, 2008 that referenced the plaintiffs’ names in the Pioneer Action, McDougall Gauley LLP wrote to the local registrar, stating “We act as solicitors for Monsanto Canada Inc.” The letter continues: We are advised that a Statement of Claim may have been commenced against Pioneer Grain, as well as Monsanto. We are advised that this may have been in 2004 or 2005. … We are not sure whether there are four or five files at Queen’s Bench or only one. We are further advised that Mr. Wayne Rusnak, Q.C. has taken over these files from the Rosowsky & Campbell firm.

Our client, Monsanto Canada Inc., has no record of ever having been served with these Statements of Claim. We are concerned because Mr. Rusnak has indicated that he has received some instructions to proceed. Could you kindly, therefore, fax to us (at our expense) a photocopy of any Statement(

s) of Claim that you have in your judicial centre, together with proof of service on Monsanto and any Statements of Defence filed filed [sic] by either Pioneer of Monsanto. … [ 15 ] This letter was not copied to RBKR. In response to McDougall Gauley’s inquiry, the local registrar forwarded to the firm copies of the statements of claim against Monsanto and Pioneer. Since no proof of service had been filed on the court file, none was sent. Mysteriously, Mr.

Rosowsky never filed any form of proof of service of the statements of claim upon Pioneer or Monsanto in the Pioneer Actions or upon UGG and Monsanto in the UGG Actions. [ 16 ] The letter from McDougall Gauley is surprising in many respects. More than three years had passed since Mr. Rosowsky had sent the statements of claim against Monsanto to D’Arcy & Deacon in Winnipeg MB, ostensibly counsel for Monsanto.

Apparently both McDougall Gauley LLP and D’Arcy & Deacon believed they represented Monsanto, as D’Arcy and Deacon sent correspondence to RBKR, just three months after McDougall Gauley’s inquiry to the local registrar, on July 16, 2008, stating: I confirm your advice that we have extended the target deadline for the filing of Statements of Defence in connection with the 26 individual actions (16 in Manitoba and 10 in Saskatchewan) brought against our client, Monsanto Canada Inc. (hereinafter “Monsanto”)

until July 30, 2008. [ 17 ] In its correspondence to RBKR, D’Arcy & Deacon also explained that the seed impugned in the 26 actions was not Monsanto’s and that nothing in the claim showed a “demonstrable linkage with Monsanto’s Roundup Ready biotechnology trait.” D’Arcy & Deacon encouraged the plaintiffs to discontinue their actions against Monsanto. [ 18 ] Perplexingly, although the letter from D’Arcy & Deacon intimated that it would prepare a statement of defence within two weeks, a statement of defence was not filed on either the Pioneer Actions or the UGG Actions.

Then, on February 28, 2013, the five plaintiffs on the UGG Actions filed a Notice of Discontinuance respecting the claim against Monsanto which RBKR served upon D’Arcy & Deacon.

Similar Notices of Discontinuance against Monsanto do not appear on the Pioneer Actions, notwithstanding the identical claims against Monsanto on these two actions. [ 19 ] Even more perplexing is correspondence on the court file dated as recently as December 30, 2015, in which McDougall Gauley, undoubtedly prompted by service upon it of the within Notice of Application, again inquired of the local registrar whether proof of service of the statements of claim upon Monsanto had ever been filed on the court file. The local registrar advised that none had been filed. [ 20 ] Confusion emerges.

Has service of the statements of claim upon Monsanto or Pioneer in the Pioneer Actions or the UGG Actions been established? McDougall Gauley apparently believes it represents Monsanto and that service has not been established. D’Arcy & Deacon believes, at least on the UGG Actions, that the claim against Monsanto has been discontinued. Which law firm, McDougall Gauley or D’Arcy & Deacon, represents Monsanto in the Pioneer Actions is unclear.

Is there a reason, given the virtual parallel claims against Monsanto in the Pioneer Actions and the UGG Actions, why the claims have been discontinued in the UGG Actions but not in the Pioneer Actions? [ 21 ] I raise these uncertainties respecting the claims against Monsanto in the Pioneer and UGG Actions because they also characterized the prosecution of the claims against Pioneer. As described above, Mr. Rosowsky sent the statements of claim by certified mail to Pioneer’s office in Winnipeg, MB on December 23, 2004.

Pioneer, in turn, confirmed in correspondence that statements of defence would not be required without further notice. No proof of service of the statements of claim was filed. Then, approximately four years later, Pioneer, through its legal counsel Balfour Moss (now Miller Thomson), filed with the court four statements of defence with proof of service upon RBKR, effective February 3, 2008. [ 22 ] Now, in response to Ms. Rees’s correspondence of February 2, 2016, Pioneer suggests that the letters Mr.

Rosowsky sent to Pioneer on December 23, 2004 enclosing the statements of claim do not comply with the service rules then in effect. Pioneer advances this position notwithstanding that it served a statement of defence four years later, on February 3, 2009, by service upon RBKR. Pioneer now states that no acknowledgement of service was enclosed in Mr. Rosowsky’s December 23, 2004 correspondence. Nor have the plaintiffs offered proof that the address to which the statements of claim were addressed was Pioneer’s registered office.

Pioneer suggests that the earliest date that proof of the statements of claim can be established is February 3, 2009, the date it served upon the plaintiffs’ counsel, RBKR, its statements of defence.

Pioneer looks to the former Queen’s Bench Rules 19(5) and 30(7) which stated: 19(5) A document commencing a proceeding is deemed to have been personally served where the person to be served has delivered a defence or taken any action that is necessary to participate in the proceeding. 30(7) Deemed service of a document pursuant to subrule 19(5) is effective on the date the person to be served files a defence or takes any other action in the proceeding. [ 23 ] Counsel for Pioneer states that since deemed service only occurred on February 3, 2009, the application of former Rule 16 – the rule requiring a statement of claim to be served within six months of the date of issue – means that the statement of claim has never been effectively served, since by February 3, 2009 the statement of claim was “stale” and no order was taken to extend time for service. [ 24 ] I have considered, but cannot accept, the position advanced by Pioneer.

Foremost, although counsel has pointed to specific rules respecting service, it has omitted equally important rules – those that ameliorate strict compliance (and were in effect at the operative time).

The former Queen’s Bench Rules 18(1) – 18(3) state: 18(1) Discretion of the Court Subject to the express provisions of any statute or regulation and notwithstanding any rule respecting service, the court has discretion to validate or set aside the service of any document. 18(2) Notice the Primary Consideration The primary consideration for the court in the exercise of its discretion is that the person served or to be served: (

a) received notice of the document; or (

b) would have received notice except for the attempts of that person to evade service. 18(3) When court may validate service

Where the court is satisfied that the person to be served received notice of the document, the court may: (

a) validate any irregular or unauthorized service of a document, and (

b) impose any terms that it considers appropriate on the validation. [25] I have no hesitation in exercising the discretion permitted to the court under the former Rule 18(1) to validate theservice of the statements of claim upon Pioneer. First, the argument of improper service was a late-come-upon position taken by Pioneeronly after I had mentioned at the hearing on February 1, 2016 that I could not find proof of service upon the court file. In response, Ms.Rees presented the documents described in para. 4 above, which included the correspondence from Mr.

Rosowsky to Pioneer’s office onDecember 23, 2004 that referenced the enclosed statements of claim, correspondence which Pioneer also had in its possession. [26] Further, the letter from Mr. Ruest of Pioneer’s legal department to Mr. Rosowsky on January 6, 2005, confirming withMr. Rosowsky that statements of defence were unnecessary without further notice, illustrates that Pioneer was well aware of the pendinglitigation.

Finally, Pioneer’s preparation and service of statements of defence on each of the Pioneer Actions in February 2009 belies anynotion that, in the words of the former Rule 18(2), it had not “received notice of the document [statements of claim].” [27] Accordingly, I find that service of the statements of claim upon Pioneer was effected on December 23, 2004, within themandatory six month period. Should the Actions against Pioneer Be Struck?

The Legal Framework [28] The legal framework within which I must determine whether the claims in the Pioneer Actions should be dismissed lieswithin The Queen’s Bench Rule 4-44 and the case law that has interpreted the Rule or its predecessor. The current Rule states: Application to deal with delay 4-44 If delay occurs in an action, on application the Court may: (

a) dismiss all or any part of a claim if the Court is satisfied that the delay is inordinate and inexcusable and that it is not in theinterests of justice that the claim proceed; or (

b) make a procedural order or any other order provided for by these rules. [29] The court’s discretion to dismiss claims for delay in prosecution has been comprehensively, authoritatively, andrelatively recently, set out by the Saskatchewan Court of Appeal in International Capital Corp. v Robinson Twigg & Ketilson, 2010SKCA 48, 350 Sask R 160 [ICC]. In the nearly three and one-half decades previous to ICC, Saskatchewan courts were largely guided bythe principles set out in Carey v Twohig, (SK KB), [1973] 4 WWR 378 (Sask QB) [Carey]. ICC signalled a nuancedchange of direction from Carey.

The policy-oriented analysis and thorough instructions in ICC merit extensive quotation since theygovern the disposition of Pioneer’s application in this instance. [30] First, Justice Richards (as he then was) broadly signalled that both litigants and the public’s interest have a stake in thetimely prosecution of an action. He wrote: [40] ….Experience has revealed the need for a more effective and nuanced way of giving expression to the interest which defendantshave in the timely resolution of civil disputes. The circumstances underpinning this appeal could be a case study of why somemodification in the Carey v.

Twohig line of analysis is necessary. Simply put, no defendant should have to wait 15 years for a trial. Magna Carta itself specifically obliged the King not to “…delay right or justice”. [41] Delays of the sort underpinning this appeal frustrate not only litigants. They also undermine public confidence in the justice systemas a whole. … [31] Richards J.A. then moved from the general to the specific.

He adjusted the primary precondition to dismissing a claimas stated in Carey – whether the defendant suffered prejudice by the delay – and stated that this inquiry should be considered after havingfound an inordinate and inexcusable delay. Only then, once such delay has been established should the court consider whether, in theinterests of justice, the claim should nonetheless proceed. He stated: [42] The best way to proceed is by adjusting the Carey v. Twohig approach so that a finding to the effect a defendant will likely sufferserious prejudice is not a strict precondition to striking a claim.

Rather, the question of prejudice should be a factor – an important one –considered when determining whether it is in the interests of justice that a claim proceed to trial notwithstanding inordinate andinexcusable delay. In other words, the approach for dealing with an application to strike for want of prosecution should involve the threesteps described below.

[ 32 ] The three-step analysis is set out in paras. 43 to 45 of ICC . It provides a ready guide to determine the merits of Pioneer’s application: [43] The first step, as set out in Carey v. Twohig , is an inquiry about whether the defendant has established that the delay in moving a case ahead has been inordinate. This will involve considering the time the plaintiff has taken to get the litigation to the point where the application to strike is brought and comparing that lapse of time to what might typically be expected in a case of similar complexity.

This is necessarily a matter of informed judgment grounded in the overall experience of the court and the particulars of the file in question. [44] The second step in the analysis, again as per Carey v. Twohig itself, is an examination of the reasons for the delay aimed at determining whether it is excusable. This inquiry will entail consideration of the nature of the claim, the diligence with which the claim has been pressed by the plaintiff, and the specific reasons offered as to why the matter has not moved more quickly.

A wide variety of factors might be expected to factor into this assessment. [45] The third step of the approach is where the refinement of the Carey v. Twohig approach arises. It is this. If the court finds delay to have been both inordinate and inexcusable, it should not consider the issue of “serious prejudice” as a discreet question. Rather, it should move directly to the issue of whether it is in the interests of justice that the case proceed to trial notwithstanding the delay and should consider the issue of prejudice in that context.

In dealing with this third and final part of the analysis, the court should have regard to all of the relevant circumstances including: (

a) The prejudice the defendant will suffer in mounting its case if the matter goes to trial – … Relevant matters here would include failing memories on the part of witnesses, the disappearance or death of witnesses over the course of time and the loss or destruction of physical evidence. … (

b) The length of the inexcusable delay – Obviously, the longer the unjustifiable delay, the more likely it is that letting a matter go to trial will not be appropriate. An unjustifiable delay of a few months is something quite different than an unjustifiable delay of many years. (

c) The stage of the litigation – In general terms, a court should be less inclined to strike an action which is well advanced than one which is in its early stages. The interests of justice will normally weigh in favour of getting a case to trial if it has somehow stalled just short of that mark. On the other hand … an action which has never progressed beyond the pleadings stage, and in which the parties have invested little time or resources, might be easier to strike. (

d) The impact of the inexcusable delay on the defendant – The court should be sensitive to the impact of claims which put in question the professional, business or personal reputation of the defendant, which put the livelihood of the defendant at risk or which involve significant or ongoing negative publicity for the defendant. … (

e) The context in which the delay occurred – Defendants are generally understood to have no positive obligation to move litigation forward. Nonetheless, a court entertaining an application to strike for want of prosecution should note whether the inexcusable delay took place in the face of pressure from the defendant to move the file ahead. … (

f) The reasons offered for the delay – In considering the justice of allowing a claim to move forward to trial, a court should revisit the reasons offered by the plaintiff for the delay. Not all explanations for delay which fall short of establishing an “excuse” will be the same. For example, a claim which is launched and then allowed to sit entirely dormant for years for no reason is not the same thing as a suit where a plaintiff makes progress but takes too long to make it. (

g) The role of counsel in causing the delay – There is a comment in Carey v. Twohig to the effect it might be unjust to deprive a plaintiff of the chance of recovering damages in circumstances where the plaintiff himself or herself is blameless in relation to the delay and his or her lawyer is fully responsible for it. … This is a legitimate consideration when assessing the justice of allowing litigation to continue after inexcusable delay. … However, this consideration should not be overstated or given undue weight. … Plaintiffs select and instruct their counsel.

If a litigant engages a lawyer and the lawyer then fails to move matters forward expeditiously, the litigant should bear the burden of his or her choice of counsel and should not expect to have that burden shifted wholly to a defendant who played no role in retaining or instructing the lawyer. … (

h) The public interest – There may be a narrow category of actions in relation to which a court should think especially carefully before granting an order to strike for want of prosecution. It is not possible to describe this class of matters with great particularity but, in broad terms, it could be expected to include cases of genuine public importance.

Normally, they will have implications and significance reaching beyond the specific interests of the litigants themselves. … [46] This list of factors is not necessarily exhaustive of the matters which might properly be taken into account when deciding whether litigation characterized by inordinate and inexcusable delay on the part of a plaintiff should be struck for want of prosecution. Depending on the case, there might be other matters which also warrant consideration. [ 33 ] I will follow the three steps set out in ICC .

Step One – Was Delay Inordinate? [ 34 ] Approximately 14 years ago, in the spring of 2002, Pioneer sold canola seed to each of the plaintiffs. The plaintiffs allege that later that growing season the canola crop failed because the seed was not resistant to fustarium wilt. Two years later, at the end of July 2004, the plaintiffs issued their claims. Service of the claims was effected five months later.

Accordingly, 14 years have lapsed since the plaintiffs purchased canola seed and over 11 years have passed since service of the claim. [ 35 ] In February 2009, four years after service of the claims, the pleadings had advanced to service of statements of defence.

No mediation has taken place. Other than a Notice of Intent to Proceed served by the plaintiffs in 2013, the plaintiffs have taken no further proceedings, at least not until after their counsel was served with the within Notice of Application, in January 2016. [ 36 ] Inordinate delay, although commonly spoken about in terms of years, is not assessed with reference to a particular timeframe. Delay will depend on the facts of each case.

As Salmon L.J. stated in Allen v Sir Alfred McAlpine & Sons Ltd. , [1968] 1 All ER 543 (CA) [ Allen ] , “These [facts] vary infinitely from case to case, but it should not be too difficult to recognize inordinate delay when it occurs.” [ 37 ] Assistance in determining the length of time constituting inordinate delay might be garnered from the Alberta Queen’s Bench Rules which permit two grounds for dismissing a claim: a mandatory “drop dead” rule and a discretionary rule. The former states that a claim must be dismissed in the absence of any “significant advance” in an action in the previous three years.

Courtesy times extended for filing a defence do not count. The three-year rule is reset every time a qualifying step is taken. This rule, if applied in this application, would clearly augur for a mandatory dismissal of the action. [ 38 ] Eleven years, by anyone’s measure, is easily recognized as an inordinate delay when the plaintiffs have done nothing more than serve a claim.

Although a Notice of Intent to Proceed was served on March 27, 2013, the plaintiffs have taken no further proceedings, in spite of a prompt from Pioneer’s counsel in correspondence of May 8, 2015 that the plaintiffs should discontinue the action or Pioneer would seek to strike the claims for want of prosecution.

The plaintiffs provided no response to this threat to strike. [ 39 ] The facts in LNY Holdings Ltd. v Royal Bank of Canada, 2012 SKQB 107 , 392 Sask R 140 [ LNY ] bear similarity to the case at hand (with a much shorter period of delay), as the defendant had also served a notice of intention to proceed but without taking action.

Justice Scherman stated: [7] Even if I attribute responsibility to the defendant for some period of the delay, the bottom line is that in the nearly four years preceding the application to dismiss, the plaintiff did nothing to advance the action other that [sic] serving a notice of intention to proceed in October 2007, following which it did nothing. The fact that the plaintiff served this notice demonstrates it understood it was incumbent on it to advance the action.

Given the action is eight years old and has not advanced beyond the production of documents stage, there can be no conclusion other than that the delay has been inordinate. [ 40 ] By further comparison to the delay of eleven years, in Anderson v Wascana Wood Components Ltd., 2010 SKQB 357 , 361 Sask R 219 [ Anderson ], Justice Zarzeczny concluded a delay in excess of three years in advancing a wrongful dismissal claim constituted an inordinate delay.

In another wrongful dismissal claim, McKee v Melfort (City), 2011 SKQB 462 [ McKee ], Justice Rothery determined that a delay of four years and two months was inordinate. [ 41 ] I find that the delay by the plaintiffs in the Pioneer Actions has been inordinate.

Step Two – Was the Delay Inexcusable? [ 42 ] Salmon L.J. stated in Allen at p. 561 , “As a rule, until a credible excuse is made out, the natural inference would be that [inordinate delay] is inexcusable.” Or, as Scherman J. stated at para. 8 in LNY , once an inordinate delay has been found, the plaintiff is left to “justify the delay and demonstrate that it is, in the circumstances, excusable.” [ 43 ] In an affidavit sworn by Rhiannon Rees of RBKR on January 25, 2016, the following position is advanced to illustrate why the claims should not be dismissed – i.e. that any delay is excusable. Ms. Rees states: 2.

Actions were commenced by 22 farmers against the named Defendants or against Agricore United or United Grain Growers Limited with respect to losses from Canola. 3. Our office is currently negotiating 17 other claims with the solicitors for Agricore United and United Grain Growers Limited, which are similar to the Plaintiff’s claim. Our assessment of damages with respect to 17 of these claims were [sic] made by letter dated September 2 nd , 2015. “Without prejudice” settlement offers were received from the solicitors for Agricore United and United Grain Growers Limited by letter dated December 21 st , 2015.

We are in the process of receiving replies from all our clients to the said settlement offers. 3 [sic]. Our client’s assessment of damages was provided to the solicitors for Pioneer Grain by letter dated January 18 th , 2016, along with the assessment of damages for 3 other claims related to the same issue. We have not yet received the Defendant, Pioneer Grain’s settlement position. There remains 1 claim against Pioneer Grain for which we have not yet made a settlement offer.

This claim originates out of the Manitoba Court of Queen’s Bench, Dauphin Centre. [ 44 ] In a reply affidavit sworn January 29, 2016, Lanetta Scott, Litigation/Risk Manager with Pioneer, states that neither she nor Miller Thomson had any knowledge of the letters of September 2, 2015 or December 21, 2015 that RBKR may have sent to defendants in “similar actions.” Of the original 26 actions that Mr. Rosowsky commenced in 2004 it is unclear how many remain unresolved. Apparently, in addition to the four Pioneer Actions, RBKR continues to be involved in 17 other actions.

Where these other actions involving other defendants may lie – whether in Saskatchewan or Manitoba or which judicial centre – and what may have transpired respecting them is not known to the court and can be of little significance to Pioneer. I cannot accept that a settlement letter sent to other defendants in other actions, sent without Pioneer’s knowledge, and on a “without prejudice” basis, can be offered as an excuse for delay in the Pioneer Actions. Mr. Rosowsky launched separate actions, apparently 26 in total, for specific reasons not known to the court.

However, that decision being made, the actions stand discrete and separate; negotiations within one action cannot be imputed to another action involving a different party. [ 45 ] Furthermore, I do not see how the correspondence of January 4, 2016 from RBKR to Miller Thomson, written the same date as service upon it of the Notice of Application, presents an excuse for the delay on the Pioneer Actions merely by advising, for the first time, that solicitors for Agricore United had presented a settlement offer on a similar action.

[ 46 ] Nor do I find any measure of acceptable excuse for delay in the recent correspondence of January 18, 2016 from RBKR to Miller Thomson in which the plaintiffs’ claims for loss of canola are quantified in number of bushels per acre allegedly lost, multiplied by $8.96 per bushel. One might have thought that this assessment of costs had long since been completed and would have been available in the intervening 13 crop years since the alleged crop failure. The statement in Ms.

Rees’s affidavit, sworn only one week after the January 18 correspondence and in reference to its January 18 letter, is perplexing: “We have not yet received the Defendant, Pioneer Grain’s settlement position.” The letter of January 18 neither made a settlement offer to Pioneer nor requested a settlement offer from Pioneer. It merely and briefly showed a mathematical allegation of alleged damages.

By January 18, it should have been clear that Pioneer was intent to proceed with its application to have the Pioneer Actions dismissed, not to engage in settlement discussions. [ 47 ] I do not find that the plaintiffs have presented a justification or excuse for the inordinate delay. Step Three – Interests of Justice [ 48 ] At this stage, having found both inordinate delay and no excuse for the delay, I must ask an over-arching question: whether it remains in the interest of justice that the Pioneer Actions proceed to trial.

In both Anderson and McKee, the court found that the requisite markers of inordinate delay and lack of excuse were present, but held that in the interests of justice, particularly the lack of significant prejudice suffered by the defendant, the action could not be dismissed. [ 49 ] Referring to the prompts offered by Richards, J.A. in ICC , I canvas the questions he posed to determine whether, notwithstanding delay, the Pioneer Actions should not be struck. [ 50 ] Prejudice to Pioneer if the case goes to trial – The statements of claim allege that Pioneer “represented and warranted that the canola seed …was of superior variety and was suitable to plant as seed in the Togo [Kamsack] District, Saskatchewan…” Further allegations suggest that the plaintiff relied upon the “skill and judgment of the Defendants … when he purchased the canola seed...” One must expect that such alleged representations and reliance would ordinarily be attributed to employees of Pioneer who worked at the outlet where the seed was sold.

The likelihood that any employee would remember what he or she may have said, or, indeed, that these employees can even be identified or located must be questioned given the lapse of 14 years. [ 51 ] Determining whether crop loss was occasioned by a seed allegedly not resistant to a plant disease would present challenges at any time. I can take judicial notice that crop diseases can be exacerbated by many conditions: stress from too much or too little moisture, too much or too little heat, other diseases, insects, seeding practices, and the presence of weeds.

The presence or absence of these conditions and how they, and not seed variety, might have affected the plaintiffs’ canola crop in 2002 will necessarily have grown dim with the passage of time. [ 52 ] Length of inexcusable delay – The longer the delay, the greater the prejudice; in large measure, the former must be the corollary of the latter. Fourteen years have passed since the plaintiffs purchased the canola.

The plaintiffs’ filing of a notice of intention to proceed in 2013, as Justice Scherman stated in LNY , only serves to illustrate that the plaintiffs were aware that the actions should be prosecuted, but were not. In my view, the length of delay weighs in favour of the defendants’ assertion that the interests of justice are not being denied by striking the action for delay. [ 53 ] The stage of litigation – The further into the proceeding, the less likely the court will dismiss an action.

If, notwithstanding the delay, the action is on the eve of trial, the court will show considerable hesitancy in dismissing the action. In this instance, the plaintiffs’ investment was largely incurred when the claim was issued, but little since.

I see no evidence that the plaintiffs have invested either time or resources in prosecuting the actions against Pioneer. [ 54 ] The impact of the inexcusable delay on the defendant – Counsel for Pioneer admits in its brief of law that few developments in the action have necessitated significant resources, aside from the not-entirely negligible need to retain counsel for a period of over 11 years. [ 55 ] The context in which the delay occurred – RBKR suggested in its correspondence to Miller Thomson that since the actions had not progressed to mediation, the application to dismiss was premature. I disagree.

I see nothing different about the general need to move a matter to mediation than any other ordinary proceedings taken in an action, such as preparing the affidavit as to documents or questioning. [ 56 ] Nor do I accept that Pioneer had an obligation to advance the action, including mediation. As stated in ICC , defendants “are generally understood to have no positive obligation to move litigation forward” (para. 45).

Litigation in our English common law system is adversarial in nature: each party marshals its resources to present its case in the best light it can and it is the plaintiff’s duty to press forward with litigation. Nor did Pioneer sit idly by, letting sleeping dogs sleep, so to speak.

By correspondence of May 8, 2015 Pioneer’s counsel sent a letter to RBKR stating, “…we have been instructed to bring a court application to strike your clients [sic] claim as against our client for want of prosecution and should such application be brought, we will be seeking costs against you.” Again, as stated in ICC at para. 45 , “Delay in the shadow of repeated requests from a defendant to get on with things is generally more serious than delay where the defendant has not pressed the plaintiff.” [ 57 ] I note, too, that on the court file in the UGG Actions, UGG brought a similar application, returnable July 6, 2015, seeking an order dismissing the actions for delay.

Although the inference in Ms. Rees’s affidavit in this application is that the P ioneer Actions should not be dismissed because of progress toward settlement in “similar actions,” I find that the defendant in at least five of these similar actions has had the same concerns as Pioneer in this action.

The judicial endorsements on the UGG Actions show that the application in the UGG Actions was adjourned sine die on August 28, 2014. [ 58 ] The reasons for the delay – The plaintiffs have offered no reasons for delay, other than the assertion advanced just days before this application that settlement negotiations were proceeding on 17 other actions. I have previously discounted this explanation. I see no legitimate reasons why the Pioneer Actions were not prosecuted. [ 59 ] The role of counsel in causing the delay – No evidence has been presented to suggest that either Mr. Rosowsky or

RBKR were the cause of the delay. Perhaps of the original 26 plaintiffs in the various actions, some have lost interest in pursuing the claim or have even discontinued farming. [ 60 ] The public interest – In answering whether the plaintiffs’ actions show a matter “of genuine public importance” which would garner support for not dismissing the action, I find that the Pioneer Actions are primarily, if not solely, of private importance. Crop failures are commonplace in Saskatchewan and so is allocating blame for them, whether to human error or to forces of nature.

As stated in LNY at para. 12 , when litigation involves matters of purely private concern, no issue of the larger public good or interest militates in favour of the matter proceeding to trial. [ 61 ] I find no public interest compels the continuation of the Pioneer Actions in face of the inordinate and inexcusable delay. [ 62 ] Costs, in accordance with the tariff, are awarded in favour of Pioneer. However, only one set of costs for each action shall be permitted given the identical issues on each action. J. D.H. LAYH