CLAUDE BOVIER, BEN KUZMICS, CJ ACRES LTD., JOHN DOE I, JANE DOE I, v. JOHN DOE LTD I AND JOHN DOE LTD, 2023 SKKB 21

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 21 Date: 20 23 01 27 Docket: QBG-RG-00517-2006 Judicial Centre: Regina BETWEEN: CLAUDE BOVIER, BEN KUZMICS, CJ ACRES LTD., JOHN DOE I, JANE DOE I, AND JOHN DOE LTD I AND JOHN DOE LTD II PLAINTIFFS/RESPONDENTS - and - CRARY COMPANY, TERREMARC INDUSTRIES INC. AND KRG CAPITAL PARTNERS LLC DEFENDANTS/APPLICANTS Counsel: No one appearing for the plaintiffs/respondents MacKinley M. Sim for the defendants/applicants JUDGMENT TOCHOR J. January 27, 202 3 I.

Introduction [ 1 ] On March 29, 2006, Claude Bovier, Ben Kuzmics, CJ Acres Ltd., John Doe I, Jane Doe I, and John Doe Ltd I and John Doe Ltd II [Plaintiffs] filed a claim under The Class Actions Act , SS 2001, c C-12.01 against Crary Company, Terremarc Industries Inc. and KRG Capital Partners LLC [Defendants]. [ 2 ] In the claim, the Plaintiffs alleged they are representative of a class of persons to whom the Defendants are liable for damages because of a breach of their duty to maintain a distributorship in Saskatchewan contrary to s. 24 of The Agricultural Implements Act , RSS 1978 c A-10 . [ 3 ] After some limited steps were taken by the Plaintiffs, primarily with respect to the issue of whether the Defendants were served with the claim, the Plaintiffs filed an application on March 7, 2008, for an order deeming nunc pro tunc that the Defendants were served.

This application was dismissed on March 24, 2008. [ 4 ] Thereafter, no steps were taken by the Plaintiffs for about six years. [ 5 ] On February 13, 2014, the Plaintiffs made a request to the Chief Justice for the appointment of a designated judge pursuant to s. 16 of The Class Actions Act . On March 17, 2014, the Chief Justice appointed Elson J. as the designated judge. [ 6 ] No steps were taken in the eight years and eight months since the appointment of the designated judge. [ 7 ] Viewed cumulatively, there has been nearly 15 years of inactivity on the part of the Plaintiffs.

The only step taken by the Plaintiffs between March 17, 2008 and November 29, 2022 (the date the Defendants’ application to dismiss was filed) was their request for the appointment of a designated judge on February 13, 2014. [ 8 ] The Defendants now apply for an order dismissing the Plaintiffs’ claim under Rule 4-44 of The Queen’s Bench Rules because of inordinate and inexcusable delay. [ 9 ] Counsel for the Plaintiffs was served with the Defendants’ application on November 28, 2022.

The day before chambers hearing of the application to dismiss, on January 18, 2023, he sent an email to counsel for the Defendants: I will not be attending on the 19th. Advise the Court this is not out of any disrespect for the system but I do not have instructions. [ 10 ] Counsel for the Plaintiffs did not seek an adjournment, nor did he appear in chambers on January 19, 2023. No

materials were filed by the Plaintiffs in reply to the Defendants’ application. [ 11 ] For the reasons that follow, I grant the Defendants’ application to dismiss the Plaintiffs’ claim pursuant to Rule 4-44 of The Queen’s Bench Rules . II. Preliminary Jurisdictional Issue [ 12 ] Before considering the Defendants’ application to dismiss the Plaintiffs’ claim, I will address the preliminary issue of whether a judge sitting in chambers has the jurisdiction to decide pre-certification applications.

This issue arises because Elson J. was appointed as the designated judge by the Chief Justice in 2014; yet this application was brought to the regular civil chambers list. [ 13 ] This jurisdictional question was recently answered in Huard v The Winning Combination Inc., 2022 SKCA 130 [ Huard ]. [ 14 ] There, Leurer J.A. ruled at para. 25 that “as a matter of jurisdiction , any judge of the Court of King’s Bench can hear and decide applications … brought prior to the hearing” of a certification application. [ 15 ] However, Leurer J.A. cautioned that, notwithstanding the existence of this jurisdiction, the “preferred practice” is to leave those applications to the designated judge.

He confirmed, at para. 24, that it is “generally desirable” for pre-certification applications to be heard by the designated judge. [ 16 ] He explained, at para. 24 in Huard : [24] … As I have noted, s. 16 [of The Class Actions Act ] signals a legislative intention that, when certified, class actions are to receive active and consistent supervision by a single judge. There are many good reasons that this occur pre-certification as well. Even before certification, an action for which certification is sought is often complex procedurally – although, at times, unnecessarily so.

When an action is brought under the supervision of a single judge, that judge will accumulate knowledge of the proceedings that will help them handle it more efficiently and, in many cases, allow them to make better-informed decisions … [Emphasis added] [ 17 ] Leurer J.A. also affirmed the “consensus” found in various case authorities to defer pre-certification applications to the designated judge, holding at para. 24: [24] … In keeping with this, in JKT Holdings Ltd. v Aviva Canada Inc. , 2020 SKQB 347 at para 25 , 66 CPC (8th) 402 , Robertson J. stated, with reference to many authorities, that the “consensus is that while any judge may hear such preliminary applications, the practice is to leave those applications for the judge designated to hear the certification application”.

I agree. [Emphasis added] [ 18 ] Huard recognizes the preferred practice of judges in chambers deferring any pre-certification applications to the designated judge. However, at the same time, it recognizes the jurisdiction of a chambers judge to decide those applications. [ 19 ] From Huard , I conclude that, generally speaking, a chambers judge should follow the preferred practice of deferring pre-certification applications to the designated judge.

However, I also conclude Huard leaves it open to a chambers judge to determine applications where appropriate. [ 20 ] In Piett v Global Learing Group Inc. , 2018 SKQB 144 , 28 CPC (8th) 417 [ Piett ], Barrington-Foote J. (as he then was) explained at para. 15 that a party who seeks an exemption from the general rule “faces a heavy burden”. He held: [15] In the result, the law is clear. The general rule exists for good reason, and the defendant who seeks an exception faces a heavy burden. The question as to how applications should be sequenced turns on the facts, considered in light of these principles.

Fairness to all parties, efficiency and judicial economy are the key considerations: see, for example, T.G. [ T.G. v Saskatchewan , 2017 SKQB 146 ] at para17; Stewart v Enterprise Universal Inc. , 2010 ABQB 259 at paras 17 , 35 and 36, 32 Alta LR (5 th ) 134 [ Stewart ]; and Spicer v Abbott Laboratories Ltd. , 2017 SKQB 271 at paras 26-27 , 13 CPC (8 th ) 407 [ Spicer ] … [ 21 ] Piett also set out a non-exhaustive list of factors at para. 15 that a court must consider when determining whether an application is best left deferred to the designated judge. [ 22 ] While I am mindful of the factors listed in Piett at para 15 , many - if not most – of those factors do not necessarily apply to this unique scenario.

The application to dismiss the claim in this case is brought in an entirely different context; that is, in a context of no steps being taken by the Plaintiffs for many years. This is not a case, like Piett , where a number of parties are involved in four procedural applications emanating from a complex factual dispute. [ 23 ] In these circumstances, I conclude this is one of the relatively uncommon cases where it is appropriate for a chambers judge to decide a pre-certification application. I also conclude that the Defendants have met their burden in this case to justify an exemption from the general rule.

In this regard, I rely upon the “key considerations” listed in Piett at para 15 : (

a) fairness to the parties; (

b) efficiency; and (

c) judicial economy.

[ 24 ] After considering the legal framework set out by Huard and Piett , I conclude this is an appropriate case for a chambers judge to address this application and I do not consider it necessary to defer this application to the designated judge. I come to this conclusion for three primary reasons. [ 25 ] First, this application to dismiss for inordinate and inexcusable delay is not connected in any way to the procedure or substance of the proposed class action. The application is procedurally straightforward and can be adjudicated on the basis of ordinary legal principles applicable to all civil cases.

There is no intersection in this application with principles unique to certification applications or to class actions. [ 26 ] Second, the designated judge in this case has not yet been involved in this matter in any way. He does not possess any accumulation of knowledge of the proceedings; nor does he yet have any special knowledge of potential legal or procedural complexities.

The evidentiary record discloses no basis upon which to conclude the designated judge, at this stage, holds any advantage in deciding a procedural application. [ 27 ] Third, and importantly, permitting a chambers judge to determine the application to dismiss in this case is in keeping with the philosophy underlying the foundational rules.

If I were to simply follow the preferred practice articulated in Huard and JKT Holdings Ltd. v Aviva Canada Inc. , 2020 SKQB 347 , 66 CPC (8th) 402, and order that the application be instead brought before Elson J., the parties would be faced with additional legal costs and further delay. As well, additional judicial resources would have to be marshalled to have this application arranged before the designated judge who, since being designated, has relocated to another city.

Deferring this application to the designated judge in these circumstances would not, in my respectful view, promote the just resolution of the dispute in a timely and cost-effective way. [ 28 ] In

summary, I acknowledge and affirm the preferred practice of deferring pre-certification applications to the designated judge. I accept and endorse the reasons set out in Huard which form the basis for this preferred practice. At the same time, however, I conclude that considerations of fairness to the parties, efficiency, and judicial economy warrant a careful departure from the preferred practice. [ 29 ] On this basis, and in these unique circumstances, I choose to exercise the jurisdiction of a judge sitting in chambers to decide the Defendants’ application.

I turn now to a consideration of the application to dismiss for inordinate and inexcusable delay. III. The Legal Framework [ 30 ] The starting point for consideration of this application is found in Rule 4-44 which 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 the interests of justice that the claim proceed; or (

b) make a procedural order or any other order provided for by these rules. [ 31 ] The oft-cited test for applications with respect to inordinate and inexcusable delay is found in International Capital Corporation v Robinson Twigg & Ketilson , 2010 SKCA 48 , 319 DLR (4th) 155 [ ICC ]. There, at paras. 43-45, the court provided a three-part test which can be summarized as follow: (

a) is the delay inordinate?; (

b) is the delay excusable?; and (

c) is it in the interests of justice for the claim to proceed? [ 32 ] This three-part test set out in ICC was recently affirmed in Huard at para 42 and in Taylor v Moose Jaw Downtown and Soccer/Field House Facilities Inc. (Mosaic Place) , 2021 SKCA 123 at paras 17-18 [ Taylor ]. [ 33 ] As emphasized in Taylor at para 26 and Huard at para 73 , the ultimate responsibility for advancing an action lies with the plaintiff.

This responsibility is explained in Huard as follows: [73] As I read this passage [ Taylor v Moose Jaw Downtown and Soccer/Field House Facilities Inc. (Mosaic Place) , 2021 SKCA 123 ], two things are beyond doubt. First, a defendant’s obligations are to “act, on a timely basis, in taking the steps prescribed by the Rules and taking such other steps, like responding to correspondence, that legitimately call for action on its part” (emphasis added). They are not otherwise obligated to press the action ahead.

This leads to the second point, namely, that the “ultimate and ongoing responsibility for moving litigation forward lies with the plaintiff ” ([ Taylor ] at para 26 , emphasis added). [ 34 ] I address each of these steps, and the guidance provided in ICC , Taylor and Huard for consideration of these steps, in turn below. IV. Applying the Legal Framework 1. Is the Delay Inordinate?

[ 35 ] The first step requires a determination of whether there is any inordinate delay. [ 36 ] This step requires a chambers judge to undertake a comparison of (

a) the time taken to prosecute this action to date and (

b) the time such a case should ordinarily take to reach the current stage. This comparison occurs within the context of the general experience of the judge and the specific circumstances of a particular action. In ICC , the court explains this part of the inquiry as follows, at para. 43: [43] The first step, … , 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. [ 37 ] In order to determine if there exists any inordinate delay as defined in ICC , it is necessary to review the basic chronology of the steps taken in this action. [ 38 ] The chronology is not detailed or complex, and these circumstances do not require a step-by-step analysis to provide an appropriate level of context. [ 39 ] The Plaintiffs’ claim was issued on March 29, 2006, and the Plaintiffs filed an application on March 7, 2008, for an order deeming nunc pro tunc that the Defendants were served.

This application was dismissed on March 24, 2008. [ 40 ] No steps were taken by the Plaintiffs in the following six years. [ 41 ] On February 13, 2014, a request was made to the Chief Justice for the appointment of a designated judge and, on March 17, 2014, Elson J. was appointed. [ 42 ] No steps were taken by the Plaintiffs for the next eight years until the Defendants’ application was filed. [ 43 ] In

summary, nearly seventeen years elapsed after the Statement of Claim was issued in 2006. Minimal activity occurred until 2008 when a six-year period of inactivity followed until the appointment of a designated judge in 2014. [ 44 ] But for the Plaintiffs’ request for the appointment of a designated judge, no activity occurred for nearly seventeen years.

Whether the inactivity is considered seventeen years, or over eight years since the appointment of a designated judge, after assessing the amount of time that might typically be necessary to prosecute a case of similar complexity, I have no hesitation in concluding this delay is inordinate. [ 45 ] There are examples in the case authorities, involving relatively similar types of claims, which establish that a delay of three and a half to five years or more is inordinate. [ 46 ] For example, in McLeod v Fyson 2014 SKQB 87 , 440 Sask R 286, the court found a delay of three and a half years to complete the questioning phase was inordinate.

Other cases, such as McKee v Melfort (City) , 2011 SKQB 462 and LNY Holdings Ltd v Royal Bank of Canada , 2012 SKQB 107 , 392 Sask R 140, have held a delay of four years to be inordinate. A five-year delay was found inordinate in McDiarmid Lumber Ltd. v Ochapowace First Nation , 2010 SKQB 402 , 6 CPC (7th) 376 and Saskatchewan Government Insurance v Bear , 2017 SKQB 276 , 14 CPC (8th) 171. [ 47 ] Finally, a six-year delay was also held inordinate in University of Saskatchewan v Cana Construction Co. Ltd. , 2011 SKQB 55 , 368 Sask R 288 and Taylor . [ 48 ] Here, I conclude the delay is inordinate. 2.

Is the Delay Excusable? [ 49 ] The second step of the ICC test requires a determination of whether the delay, or any part of it, was excusable. [ 50 ] This step requires consideration of a wide variety of factors, including the nature of the action, the delay which has occurred, and the reasons given for the delay. ICC explains this part of the inquiry at para. 44: [44] The second step in the analysis, … , 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. [ 51 ] Here, the Plaintiffs offer no explanation for any part of the delay. The Plaintiffs did not appear at the chambers hearing, or seek an adjournment of the application, or file any material.

Because of the Plaintiffs’ choice to not participate in the application, I have no basis upon which to conclude whether any part of the delay is excusable. No evidence is provided by the Plaintiffs on this, or any other aspect, of the application. [ 52 ] In

summary, therefore, I conclude the delay in these circumstances is also inexcusable. 3. Do the Interests of Justice require the Matter to Proceed? [ 53 ] The third step in ICC requires a determination of whether the interests of justice require the matter to proceed, notwithstanding the inordinate and inexcusable delay. This step entails a broader, more holistic, examination of several factors. [ 54 ] Importantly, this step is where the issue of prejudice to a defendant is considered. While the existence of

prejudice is not a requirement for an order to dismiss a claim, prejudice is an important factor to consider. In ICC at para 51 , the court confirmed the existence of prejudice is “no longer a free-standing prerequisite for dismissing [a claim] for want of prosecution”. [ 55 ] ICC states this at para. 45 : [45] … 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 … [56] Further, in Saskatchewan Crop Insurance Corporation v McVeigh , 2018 SKCA 76 , 428 DLR (4th) 122, Schwann J.A. explains the analysis to be undertaken when considering the interests of justice.

She points out that even if inordinate and excusable delay is established by a defendant, the court is still required to carefully assess whether the interests of justice require the case to proceed. She states at para. 92: [92] As Richards J.A. (as he then was) said in ICC , the question at this stage of the analysis is whether it is in the interests of justice for the case to proceed to trial notwithstanding undue and inexcusable delay (para 45).

This requires the first-instance judge to step back and ask whether, in spite of the inexcusable delay, there is a compelling “interests of justice” reason for the case to proceed on its merits. In a word, Caldwell J.A in Harding v Harding , 2014 SKCA 74 , 442 Sask R 8 , described it as a “failsafe”. [57] ICC then provides, at para. 45 , this non-exhaustive list of factors to be considered when assessing all of the relevant circumstances: [45] … (

a) The prejudice the defendant will suffer in mounting its case if the matter goes to trial …; (

b) The length of the inexcusable delay …; (

c) The stage of the litigation …; (

d) The impact of the inexcusable delay on the defendant …; (

e) The context in which the delay occurred …; (

f) The reasons offered for the delay …; (

g) The role of counsel in causing the delay …; and, (

h) The public interest … [58] As well, ICC gives direction as to how to weigh and consider these factors. The court holds this assessment is not intended to be a mechanical exercise where each of the factors is automatically given equal weight, and then a scorecard is completed. Instead, a more contextual approach is required.

This is explained at paras. 46-47: [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. [47] I would underline as well that the assessment of the relevant factors cannot be a mechanical exercise.

The likely prejudice suffered by a defendant if a matter goes to trial is always a significant factor but the relative weights and importance of the other considerations might be expected to vary from case to case. No single consideration represents a prerequisite for striking a claim.

All of the factors should be weighed collectively in a fashion which is sensitive to the on-the-ground realities of litigation and with the aim of achieving a result which is just . [Emphasis added] [59] Importantly, ICC tells us these factors must be viewed through a lens which acknowledges the “on-the-ground realities of litigation” and towards the objective of achieving a just result. [60] See also Morsky Construction Ltd. v Nickle Lake (Regional Park Authority) , 2016 SKCA 110 at paras 24 and 25 . [61] Finally, additional guidance in given in ICC where the court points out defendants are not powerless to address delay.

Instead, they have tools to address concerns of a plaintiff’s inaction. The court said this at para. 49 of ICC : [49] In concluding on this point, I think it appropriate to add that defendants are, of course, not hostage to the decisions made by plaintiffs in relation to the pace of litigation. A defendant frustrated by delay always has the option of applying to the Court of Queen’s Bench for an order requiring timely compliance with document discovery and production obligations, completion of examinations for discovery, provision of replies to undertakings and so forth.

An application to strike for want of prosecution is only one weapon in the arsenal of a defendant concerned about unreasonable delay. [62] After reviewing the evidence and submissions of counsel for the Defendants, in the context of the considerations set out in ICC at para 45 , I conclude it is not in the interests of justice to allow the claim to proceed

[63] There are many factors that weigh against permitting this claim to proceed. [64] The existence of prejudice to the Defendants ( ICC at para 45 (a)) weighs in favour of an order for dismissal of the claim. While not strenuously advanced by the Defendants, I conclude the lengthy period of delay in this matter causes prejudice to the preparation and presentation of their case.

The existence of prejudice is a factor upon which the Defendants can legitimately rely. [65] Further, the length of the inexcusable delay ( ICC at para 45 (b)) weighs very heavily in favour of an order for dismissal of the claim. [66] The stage of the litigation ( ICC at para 45 (c)) also weighs heavily against an order allowing the action to proceed. After this inordinate and inexcusable delay since 2014, the parties are nowhere near a point where the litigation can be quickly resuscitated.

Even after this extraordinary delay, the issue of whether the claim has been served in accordance with The Queen’s Bench Rules is not yet settled. The parties are a long way from setting a date for a certification hearing. The proceedings, to date, are not well advanced, especially when compared to other case authorities where an order for dismissal was sought. [67] The context in which the delay occurred ( ICC at para 45 (e)) operates against allowing the claim to proceed. Here, the only way to characterize the context of the delay is radio silence.

This was not a case where the parties, for example, engaged in protracted settlement discussions or investigations. There is no evidence of any kind of activity by the Plaintiffs. [68] As well, the absence of any explanation for any part of the delay ( ICC at para 45 (f)) weighs very heavily against an order allowing the claim to survive. [69] When considering the ICC factors, I am also mindful of the direction given at para. 49 that a defendant need not be a hostage to the plaintiff’s pace of proceedings.

It was always open to the Defendants to make an application to compel the Plaintiffs to take next steps or risk facing an application to dismiss its claim. However, in these circumstances, I recognize the direction in Taylor at para 26 and Huard at para 73 that the ultimate responsibility for advancing an action lies with the plaintiff. [70] After weighing the ICC factors in accordance with the direction given at paras. 46-47, I have no hesitation in concluding the interests of justice require this claim to be dismissed.

Viewed in the context of the on-the-ground realities of litigation, and recognizing the goal of achieving a just result, a consideration of all relevant factors compels this result. 4. Conclusion [71] For the reasons set out above, I conclude the delay in this matter is inordinate and inexcusable. I also conclude the interests of justice require that this claim be dismissed. V.

Costs [72] Rule 11-8(1) of The Queen’s Bench Rules states costs in interlocutory proceedings must follow the outcome of the application; however, this Rule is still subject to the overall discretion regarding costs found in Rule 11-1(1) and is subject to the many considerations listed in Rule 11-1(4). [73] In assessing the relative success of the parties in this application under Rule 11-1(4)(a), it is clear the Defendants are successful and, in light of the magnitude of delay in this matter, it is appropriate to award costs against the Plaintiffs. [74] In these circumstances, I conclude an appropriate award of costs payable to the Defendants by the Plaintiffs is the total sum of $1,000.

VI.

Summary of Orders [75] In

summary, I make the following orders: (

a) The Defendants’ application to dismiss the claim of the Plaintiffs pursuant to Rule 4-44 of The Queen’s Bench Rules is granted; (

b) The Plaintiffs shall pay costs of this application to the Defendants in the sum of $1,000 within 60 days of the date of this order. J. M.D. TOCHOR