CHRISTOPHER GIBSON PLAINTIFF/(RESPONDENT) - v. -, 2022 SKKB 211

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 211 Date: 2022 09 20 Docket: QBG-RG-00577-2005 Judicial Centre: Regina ___________________________________________________________________________ BETWEEN: CHRISTOPHER GIBSON PLAINTIFF/(RESPONDENT) - and - THE GOVERNMENT OF SASKATCHEWAN DEFENDANT/(APPLICANT) Counsel: E.F. Anthony Merchant, K.C. for the plaintiff Jared G. Biden for the defendant ___________________________________________________________________________ FIAT R.S. SMITH J. September 20, 2022 ___________________________________________________________________________ I.

Introduction [ 1 ] The applicant, the Government of Saskatchewan [ Saskatchewan ], applies pursuant to Rule 4-44 of The Queen’s Bench Rules for an order striking Christopher Gibson’s statement of claim [Claim]. The applicant contends that the Claim should be struck by reason of inordinate and inexcusable delay. [ 2 ] The Claim was issued by Mr. Gibson on March 31, 2005. The matter has been largely left in limbo, with little to no progress made in the 17 years since. Saskatchewan contends that the temporal delay, alone, underpins an obvious conclusion of inordinate and inexcusable delay. Suffice it to say Mr.

Gibson resists and proffers various explanations. II. Issues

[3] The application before the court is focused on a single issue: whether Mr. Gibson’s Claim should be struckunder Rule 4-44. In determining that primary issue, the court must look to the test articulated by Justice Richards (as he then was) inInternational Capital Corporation v Robinson Twigg and Ketilson, 2010 SKCA 48 at paras 43-45, 319 DLR (4th) 155 [ICC]. [4] ICC requires the court to answer three questions:

i) Has Saskatchewan demonstrated that Mr. Gibson’s delay in advancing his Claim is inordinate? ii) Has Mr. Gibson tendered a reasonable excuse for delay? iii) Has Mr. Gibson established that it is in the interests of justice for his Claim to proceed to trial? III. Background [5] While Mr. Gibson was incarcerated at the Regina Correctional Centre, he slipped and fell on January 10,2005. Mr. Gibson was examined by Dr. Krishna Kumar after his slip and fall. Dr.

Kumar dictated in his February 10, 2005, report that: … x-rays of his Cervical Spine had suggested some rotational subluxation but, after extensive investigation was done, it was felt that thisabnormality was more due to muscle spasm and posture rather than a true subluxation and, therefore, after one day of being in haltertraction, he was fitted with a soft cervical collar and discharged. [6] Dr. Kumar ended his assessment of Mr. Gibson finding that he did not require neurosurgical/medical attention.Dr. Kumar found that Mr.

Gibson had suffered a minor head injury and observed: I think he had a cervical sprain initially, from which he has recovered; he has no evidence of true subluxation. … At present, I have nothing to offer him, and he does not require any neurosurgical/medical attention. [7] On March 31, 2005, Mr. Gibson’s counsel issued the Claim respecting the injuries Mr. Gibson suffered fromhis slip and fall. Saskatchewan served a notice of intent to defend on April 15, 2005 and served their statement of defence shortly after onApril 22, 2005. In reply, Mr.

Gibson served a demand for particulars on April 27, 2005. [8] On May 24, 2005, the parties completed mediation with there being no activity on the file from this pointforward until 2007. On April 25, 2007, Mr. Gibson’s then counsel served a notice of withdrawal of lawyer. There was another longperiod of inactivity on the file with no substantive activity occurring until 2010. [9] On September 3, 2010, Mr. Gibson’s lawyers at Merchant Law Group (MLG) served a notice of change ofsolicitors. No substantive activity is on file from this point forward until September 13, 2013, when Mr.

Gibson served a notice of intentto proceed. In reply to the notice, Saskatchewan advised that it had served its statements as to documents in 2005, and further advisedthat Mr. Gibson had not served his statement as to documents or disclosed any materials. [10] Sadly, Dr. Kumar passed away in 2014. [11] Thereafter, another substantial delay of six years occurred. There was no substantive activity on the filecompleted until October 7, 2019, when Saskatchewan received a letter from Mr. Gibson’s counsel requesting that Saskatchewancomplete a pre-trial conference request.

Saskatchewan declined to complete the pre-trial conference request as they had never beenserved with a statement as to documents from the plaintiff. In fact, the file had been largely dormant since 2005. [12] Once again the matter went to sleep until 2022 where, again, Mr. Gibson’s counsel sought to arrange a pre-trialconference. Saskatchewan again opposed that, which has led to the current application before me. IV. General Principles of Striking Claims under Rule 4-44 [13] William A. Stevenson & Jean E.

Côté, Civil Procedure Encyclopedia, Vol 3 (Edmonton: Juriliber, 2003) c 46,addresses courts’ jurisdiction respecting allegations of inordinate delay. In applications seeking dismissal for want of prosecution, thecourts must balance the competing principles of the plaintiff’s right to their day in court and the defendant’s right to have proceedingsagainst him expeditiously dealt with. [14] The mere fading recollection of witnesses is not sufficient to dismiss a claim.

However, the court will considerthe death of a witness or the inability to locate a witness in determining whether it is appropriate to strike a claim by reason of delay. [15] Remai Financial Corp. v 562789 Saskatchewan Ltd., (SK KB), [1997] 4 WWR 474 (SaskQB), provides that the test for dismissal by reason of want of prosecution is conjunctive. There must be inexcusable and inordinate delayand a likelihood of serious prejudice to the applicant.

The court must strike a balance amid the competing interests and exercise of itsdiscretion to see justice done. [16] After making the determination that there is prejudice and the delay is inexcusable, the court must exercise itsdiscretion whether justice can be done if the action were to proceed. The court is not restricted to a consideration of the delay andprejudice factors alone but may also contemplate the means and conduct of the parties to the action as a whole (see White v AtcoIndustries (N.A.) Ltd., (SK KB), [1993] 3 WWR 98 (Sask QB). V. Application of ICC Test

i) Has Saskatchewan demonstrated that Mr. Gibson’s delay in advancing his Claim is inordinate? [ 17 ] ICC instructs that the onus is on the applicant to demonstrate that the delay is inordinate. ICC at para 43 outlines that in making the determination that the delay is inordinate, consideration should be paid to the time the plaintiff has taken to get the litigation to the point that the application to strike is brought. A comparison should then be made to the time taken in a case of similar complexity. [ 18 ] The Claim is straightforward. Mr. Gibson slipped and fell causing a disputed injury.

In proving his Claim, Mr. Gibson would be required to produce medical evidence, demonstrate loss, and provide further evidence as to the appropriate quantum. [ 19 ] Case law provides numerous examples of how to assess inordinate delay. Rubidge v Holtzhausen , 2020 SKQB 125 [ Rubidge ], provides a helpful metric as to whether Mr. Gibson’s conduct constitute inordinate delay. Justice Currie in Rubidge found that the normal time period to commence a medical malpractice case was approximately five years. Justice Currie found that an action that was commenced 14 years prior constituted inordinate delay.

Justice Currie stated at para. 13 of Rubidge : 13 What, then, has been done in this medical practice action? Pleadings, mediation, document production, questioning, and a comprehensive settlement proposal. In an action such as this, it would not be out of the ordinary to find that those steps took as many as five years. Nearly 15 years is out of the ordinary. A period of nearly 15 years, where the norm would approximate five years, include inordinate delay. [ 20 ] The considerations prevalent in Rubidge are the same as those that are prevalent in the current case. Mr.

Gibson’s Claim was commenced nearly 17 years ago. Since the commencement of the Claim, the defence has been filed, mediation has been completed and not much else. Unlike Rubidge , disclosure and questioning has not occurred. [ 21 ] In Greenough v Dahl , 2015 SKQB 327 [ Greenough ], I dealt with an application to strike for delay. Document production, mediation, and questioning were completed, but little activity had occurred since. I found in Greenough that a 13-year delay from the issuance of the claim is inordinate and warrants dismissal of the lawsuit.

The question I asked myself was “If not now – when?” [ 22 ] Here the 17-year delay in this claim overwhelmingly demonstrates inordinate delay. ii) Has Mr. Gibson tendered a reasonable excuse for delay? [ 23 ] For the second stage of the ICC test the court must decide whether there is a reasonable excuse for the delay in question.

Schening v Steel , 2020 SKCA 137 at para 18 , 51 RFL (8th) 1, provides that the onus is on the plaintiff to show why the inordinate delay should be excused. [ 24 ] It is trite to observe that a 17-year period of delay from the commencement of the claim to a point short of questioning is substantial.

To overcome such a substantial delay, a proportionately compelling explanation must be provided. [ 25 ] Saskatchewan Crop Insurance Corporation v McVeigh, 2018 SKCA 76 at para 59 , [2019] 1 WWR 290, provides that the second portion of the ICC test requires a multifaceted analysis: 59 The second and third prongs of the ICC test contemplate a multifaceted analysis.

The second stage – whether the delay is excusable – takes into account the nature of the claim, the diligence with which the claim had been pressed by the plaintiff, and other reasons offered by the plaintiff as to why the matter had not progressed more quickly ( ICC at para 44 ).

Here, the court may take into account the defendant’s actions ( Saskatoon Trading Company [2013 SKCA 42] at para 38), as well as the complexity of the matter with an eye to the length of time an action of that sort should reasonably take to proceed to trial ( Agri Resource Mgt. [2016 SKQB 254] at para 57). [ 26 ] The primary thrust of Mr. Gibson’s argument is that it would be unjust to deprive him of his chance of recovering damages in circumstances where he, personally, is blameless in relation to the delay.

He puts the inordinate delay at the feet of his counsel. [ 27 ] ICC at para 45 sets out that counsel being primarily responsible for the delay is a legitimate consideration in assessing whether it is just to allow the litigation to continue. [ 28 ] Mr. Gibson’s former counsel delayed advancing the claim for a period of approximately 23 months. The delay occurred between Mr.

Gibson’s attendance at mandatory dispute resolution in May of 2005 to the point where his then counsel ceased to act for him in April of 2007. [ 29 ] Another substantial delay occurred between the period of September 2013 and October 2019, where no substantial progress was made on moving the matter forward. The lawyers, once again, should be primarily held accountable for this delay. However, in my view the inordinate delay should have been a concern for Mr. Gibson. Multiple substantial delay periods should inform a client of their lawyers’ shortcomings in progressing their legal matter forward. Mr.

Gibson must bear some of the responsibility for the delay. [ 30 ] Mr. Gibson requested a pre-trial conference on October 2019, and Saskatchewan demurred. The matter sat dormant until February 2022 where Mr. Gibson repeated his request. The result was the same, and Saskatchewan brought an application to strike the Claim. [ 31 ] The Claim has been underway for 17 years. The matter is still far from being resolved. Saskatchewan asserts

those facts cry out for the claim to be struck. Mr. Gibson argues that it is unjust for him to shoulder the blame as much of the 17-year dormancy can be blamed on his lawyers. [ 32 ] Justice Richards in ICC at para 45 cautioned the role counsel may play in causing delay should not be overstated or given undue weight: 45 … (g) …Depending on the circumstances, there might well be a measure of unfairness in visiting the consequences of a lawyer’s lack of diligence on his or her client. However, this consideration should not be overstated or given undue weight. The reason for this is straightforward.

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 the defendant who played no role in retaining or instructing the lawyer. … [Emphasis added] [ 33 ] Delays were clearly caused by counsel, but as per Justice Richards’ insight, Mr. Gibson is not blameless. Mr. Gibson bears the burden of choosing and maintaining counsel who failed to press his matter forward. Mr.

Gibson was in the position where he could choose to solicit alternative counsel or press the matter forward with his current counsel. [ 34 ] Mr. Gibson’s secondary argument is that his multiple periods of incarceration and his lack of education combine to provide a sufficient excuse for the delay in question. [ 35 ] Mr. Gibson had obtained and conversed with counsel while incarcerated. No evidence has been presented that he was unable or incapable of pressing his legal matters forward during his period of incarceration. Further, Mr.

Gibson was not incarcerated for the totality of the 17-year period since the commencement of his Claim. [ 36 ] The parties are still a long distance from being able to proceed to trial. The inordinate and inexcusable delay of 17 years overwhelms the excuses tendered by Mr. Gibson. Accordingly, I find Mr. Gibson has failed to demonstrate a reasonable excuse for the delay in question. iii) Has Mr.

Gibson established that it is in the interests of justice for his Claim to proceed to trial? [ 37 ] Justice Richards in ICC outlined a non-exhaustive list of factors to be considered in determining whether the interests of justice support proceeding the matter to trial, including:

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

a) The prejudice the defendant will suffer in mounting its case if the matter goes to trial [ 38 ] As may be found at para. 45 of ICC , relevant matters 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. The court may also infer that the passage of time may have at least some effects on the memories of witnesses. [ 39 ] The events surrounding the claim occurred 17 years ago.

As has been discussed, 17 years is a substantial period, and the passage of time has likely ravaged the accuracy and veracity of any eyewitness accounts. Additionally, many of the witnesses will be difficult to contact or have perished. [ 40 ] Rubidge at para 33 indicates that the death of a doctor may prejudice a defendant where the doctor was to be an important witness at trial. Here, Dr. Kumar would have been a critical witness at trial.

There is no question his death prejudices Saskatchewan . [ 41 ] Rubidge at para 30 provides that the mere existence of medical records may not amount to ameliorating prejudice because records only provide limited information. Dr. Kumar was a key witness in this case. Dr. Kumar’s death leads to a vacuum in important evidence. Medical records alone do not address the problem.

b) The length of the inexcusable delay

[ 42 ] ICC at para 45 provides that the longer the delay, the more likely that the claim should be dismissed. From the commencement of the Claim to the current date, a period of 17 years has passed. The length of the delay is substantial and is a factor that strongly supports the position that the Claim should be dismissed.

c) The stage of the litigation [ 43 ] The parties have a long way to go until the matter may be properly brought to trial. That unhappy reality favours Saskatchewan’s position.

d) The impact of the inexcusable delay on the defendant [ 44 ] Justice Richards in ICC at para 45 (

d) states: 45 … (d) … 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.

In circumstances of those sorts, the court should be alert to the damage that can be caused by a plaintiff’s failure to proceed with reasonable dispatch and, at least in general terms, should be less inclined to tolerate inexcusable delay. … [ 45 ] Professional, business, or reputational concerns are of limited concern to the defendant. As an institutional defendant, Saskatchewan will not experience the types of prejudice described in ICC . Accordingly, the impact of inexcusable delay is not a significant factor.

e) The context in which the delay occurred [ 46 ] ICC at para 45 (

e) directs that: 45 … (e) … 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. 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.

Similarly, if the plaintiff delays unjustifiably in the wake of a failed motion to strike for want of prosecution, such delay would typically be more serious than if the application to strike had not been made. On the other hand, if it can be shown that, for his or her own reasons, a defendant was content to let a file sit in abeyance, that would weigh in favour of letting a claim proceed. … [ 47 ] The delay in moving the Claim along is inordinate and inexcusable. As noted, that delay is a result of lack of diligence of both Mr. Gibson and his counsel.

In my view, Saskatchewan has acted appropriately throughout and is not responsible for any of the substantial delay periods.

f) The reasons offered for the delay [ 48 ] ICC at para 45 (

f) provides: 45 … (f) … 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. … [ 49 ] The period from the commencement of the Claim until the current stage of litigation is 17 years. The reasons offered to justify the delay by Mr.

Gibson is that he was incarcerated for a substantial portion of the delay period, and that his prior counsel, rather than himself, are responsible for said delay. I find neither of the offered reasons to be compelling. [ 50 ] Mr. Gibson maintained contact with counsel relating to his criminal matters and would have had the opportunity to also contact counsel for his civil Claim. His failure to maintain contact is shared between both Mr. Gibson and his counsel.

[ 51 ] Mr. Gibson had the right to choose his counsel and to dismiss them if he was not pleased with the progress of the action. He is not blameless for the problem of the 17-year delay.

g) The role of counsel in causing the delay [ 52 ] Mr. Gibson’s strongest argument is that in the interests of justice his Claim should proceed to trial since his counsel played a large role in the 17-year delay. [ 53 ] In canvassing the delay periods, it is clear that Mr. Gibson’s counsel has failed to bring the matter to trial, or even pre-trial with any expediency. Despite counsel’s dilatory approach, Mr. Gibson is far from blameless. Mr.

Gibson is responsible for overseeing his lawyer and changing lawyers if he concludes they have failed to diligently advance his Claim. [ 54 ] There is no doubt counsel played a strong role in the delay of Mr. Gibson’s Claim. But the sins of the lawyers are not sufficient to overcome the inordinate and inexcusable delay in question.

h) The public interest [ 55 ] Justice Richards in ICC provides that public interest may support proceeding to trial despite a delay: 45 … (h) … 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.

This is not to say that a different set of rules applies to such cases. It is merely an acknowledgment that, in some limited circumstances, the larger public interest can properly be put on the scales when balancing the pros and cons of striking a claim. … [ 56 ] The larger public interest is not at issue in the current case. Mr. Gibson’s Claim is a traditional negligence claim that does not significantly touch the broader public’s interest. Nothing points towards there being implications or significance reaching beyond the litigants themselves. The public interest inquiry is not a factor in my analysis. VI.

Conclusion [ 57 ] Mr. Gibson’s delay in pressing his claim is inordinate, inexcusable, and will greatly prejudice Saskatchewan . All of Mr. Gibson’s lawyers and himself have played a role in the 17-year delay in this matter. In sum, the Claim is to be struck. [ 58 ] Accordingly, I order pursuant to Rule 4-44 that the plaintiff’s Claim be dismissed for failure to prosecute same in a timely fashion.

However, I further order that this order will not be effective until October 28, 2022, so as to provide the plaintiff an opportunity to consider whether he wishes to appeal my analysis, which is his right. [ 59 ] In all the circumstances, no larger good is served by ordering of costs. J. R.S. SMITH