MARILYN WAPPEL PLAINTIFF - v. -, 2022 SKKB 230

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 230 Date: 2022 10 19 Docket: QBG-RG-01238-2016 Judicial Centre : Regina BETWEEN: MARILYN WAPPEL PLAINTIFF - and - SASKENERGY INCORPORATED DEFENDANT Counsel: Randy M. Sandbeck, K.C. for the plaintiff Amada M. Quayle, K.C. and Jonathan R. Milani for the defendant JUDGMENT LAYH J. OCTOBER 19, 2022 The Issue [ 1 ] The issue in this application by SaskEnergy Incorporated [SEI] is whether the wrongful dismissal action against it initiated by Marilyn Wappel (previously employed as in-house legal counsel at SEI) should be struck for delay when, in

summary, over the past eight years, Ms. Wappel: (

a) On February 11, 2014, was placed on leave by SEI pending an investigation into alleged misconduct in her employment; (

b) On March 19, 2014, was placed on sick leave by her physician until April 2, 2014 and then to May 2, 2014; (

c) On March 21, 2014, self-reported allegations of misconduct to the Law Society of Saskatchewan; (

d) On May 30, 2014, was dismissed for cause by SEI from her employment; (

e) On May 26, 2016, issued a statement of claim against SEI alleging she was dismissed without notice while she was on sick leave and under treatment for depression; (

f) On June 14, 2016, was found guilty of conduct unbecoming a lawyer pursuant to an agreed statement of facts in which Ms. Wappel admitted that she forged or fabricated signatures of three persons on various corporate documents; (

g) On July 11, 2016, was suspended by the Law Society of Saskatchewan from the practice of law for four and one-half months and ordered to pay costs of $3,190.00;

(

h) On November 18, 2016, served her statement of claim on SEI; (

i) On January 25, 2017, received service of SEI’s statement of defence; (

j) On February 7, 2017, received, via her law firm, an email from SEI’s law firm requesting dates to conduct mandatory mediation; (

k) On February 21, 2017, received via her law firm, another request to set dates to conduct mandatory mediation; (

l) On February 22, 2017 had not yet instructed her law firm, resulting in an email from her law firm to SEI’s law firm stating, “Weare awaiting instructions from our client and will respond in due course”; (

m) On August 28, 2017, via her law firm, inquired of SEI’s law firm about availability for mediation and requested a copy of herpersonnel file; (

n) On August 28, 2017, received from SEI’s law firm, via her law firm, a response that SEI was available for mediation on October5, 10 or 17, 2017 and a suggestion that the parties exchange affidavit of documents prior to mediation, stating SEI would be able toproduce its documents by the end of September, 2017; (

o) On April 14, 2022, after an absence of any communication from her law firm to SEI’s law firm, instructed her law firm to ask SEIto provide mediation dates in May and June 2022; and (

p) On April 27, 2022, received, via her law firm, notice that SEI intended to apply to strike her action for want of prosecution andwas not prepared to proceed to mediation. [2] This

summary of facts, to be expanded within the ensuing analysis, must be placed within the legal frameworkthat guides the court in determining whether Ms. Wappel’s action should be struck. The Legal Framework [3] The legal framework applicable in this instance is anchored in Rule 4-44 of The Queen’s Bench Rules. Itstates: 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 interestsof justice that the claim proceed; or (

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

The policy-oriented analysis and thorough instructions in ICC merit quotation since they govern the disposition ofSEI’s application. [5] First, in ICC, Justice Richards (as he then was) broadly signaled that both litigants and the public have aninterest in the timely 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 atrial. 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 justicesystem as a whole. … [6] Justice Richards then moved from the general to the specific.

He adjusted the primary precondition todismissing a claim as stated in Carey – whether the defendant suffered prejudice by the delay – and stated that this inquiry should beconsidered after having found an inordinate and inexcusable delay. Only then, once such delay has been established, should the courtconsider whether, in the interests 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. [7] The three-step analysis is set out in paras. 43 to 45 of ICC.

It provides a ready guide to determine the merits ofSEI’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 acase 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. [ 8 ] In my analysis I will follow the three steps set out in ICC . Step One – Was Delay Inordinate? [ 9 ] In her brief of law, Ms.

Wappel admits that “the delay in the current matter arguably qualifies as inordinate.” [ 10 ] SEI cites ICC at para 43 : the court should determine whether there has been inordinate delay by considering the time the plaintiff has taken to get the litigation to the point where the application to strike is brought and by comparing that lapse of time to what might typically be expected in a case of similar complexity. [ 11 ] Wrongful dismissal claims, like Ms. Wappel’s claim, are generally neither complex nor uncommon.

In her claim, she asserts that she was dismissed while on sick leave and under treatment for depression. [ 12 ] Other than the statement of claim, Ms. Wappel has not advanced her claim. Moving from statement of claim to mandatory mediation is a straightforward and routine step in Saskatchewan’s litigation progression. She received three invitations from SEI to set or accept proposed mediation dates. Ms. Wappel failed to respond to all three invitations. No affidavit of documents was prepared, notwithstanding an offer from SEI to exchange documents. Notably, the personnel file requested by her law firm would have

been subsumed in an exchange of all documents as SEI proposed, but that invitation received no response. [ 13 ] Determining the length of time constituting inordinate delay might be guided by referring to the Alberta Rules of Court 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 augur for a mandatory dismissal of the action. [ 14 ] 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 that case, the claim was issued September 27, 2006; the parties attended mediation on February 6, 2007; subsequent settlement negotiations were unsuccessful; and the plaintiff asked for an affidavit of documents on July 20, 2010 to which the defendant replied it would seek an order to strike the claim. The delay in Anderson was less than the delay in this application and Mr. Anderson’s litigation efforts exceeded Ms.

Wappel’s efforts. [ 15 ] 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. [ 16 ] I have no hesitation in finding that the delay from the date of the claim to SEI’s application has been inordinate. In making this assessment, I am aware that when Ms. Wappel woke from her inertia in April 2022 and asked for mediation dates, SEI may only then have strategized to bring this application.

SEI’s strategy parallels what happened in Anderson where the defendant’s application to strike in response to the plaintiff’s efforts to move mediation was without consequence. The recent back-and-forth exchanges between counsel during the spring of 2022, one wanting mediation and the other preparing for this application, does not move the needle of delay. I see this exchange as a stand off but of little consequence in calculating delay.

Step Two – Was the Delay Excusable? [ 17 ] Once an inordinate delay has been found, the plaintiff is left to justify the delay and demonstrate that it is, in the circumstances, excusable: LNY Holdings Ltd. v Royal Bank of Canada, 2012 SKQB 107 , at para 8 , 392 Sask R 140. Ms. Wappel essentially provides four reasons why her delay should be excused. Severe Depression [ 18 ] Ms. Wappel was experiencing adjustment disorder with depressed mood and major depression, as evidenced by a report from her psychiatrist dated October 20, 2014, approximately 19 months before she issued her statement of claim. Ms.

Wappel provides no further medical evidence of her depression over the next years, but states that when her law firm was asked to prepare an affidavit of documents in August 2017, she “was not yet able to muster the emotional and mental resources for document disclosure.” (Affidavit of Marilyn Wappel sworn August 26, 2022, para. 17). In argument, Ms. Wappel’s legal counsel reasonably suggested that depression need not be repeatedly diagnosed. Depression can be long-standing and debilitative. [ 19 ] Ms.

Wappel cites Brown v Wawanesa Mutual Insurance Company , 2013 SKQB 443 , 435 Sask R 146 [ Brown ] where Justice Ryan-Froslie ( ex officio ) found that the plaintiffs’ severe depression provided an excuse as to why they had not prosecuted their claim. However, Mr. and Mrs. Brown provided significant evidence of their on-going depressive state, summarized by Justice Ryan-Froslie as follows: [6] In 2001, the Browns rallied. Don Brown was able to work for a couple of years at a McDonald’s restaurant. He began going downhill again in 2003 and has suffered from severe depression since that time. Mr.

Brown has not worked since 2003. Both Don and Edna Brown are on medication for depression and are under the care of psychiatrists. … [8] Over the years the Browns’ depression has been exacerbated by tragedies in their immediate family, including the death of family members, the breakdown of the marriages of both of their children, their need to assume care of their son’s two children, one of whom has significant physical and mental health issues, and their son’s depression. The Browns attested that Don became so depressed he could hardly get out of bed in the morning. He did not shave, eat or bathe.

He would simply sit in the house barely talking. In 2012, Don Brown disappeared from his home. When he was found, he was admitted to the Psychiatric Centre. [9] Edna Brown has struggled with suicidal thoughts and panic attacks which require medication. [ 20 ] Unlike the evidentiary basis in Brown , in this application, the court is unaware whether Ms. Wappel has remained under a psychiatrist’s care, whether she has taken medication or has sought any other intervention for depression. The assertion in her brief of law that she “battled with severe depression,” is without a sound evidentiary basis.

Despite the evidentiary basis provided in Brown , Ryan Froslie J.A. found that when taking all contributing factors into account (including the Browns’ depression), the four years of delay was inexcusable (para. 40). Engagement with the Law Society Discipline [ 21 ] Ms. Wappel suggests that intervening circumstances prevented her from advancing her claim. She states that “from July 2014 to June 2016, my attention and resources were directed at the resolution of my disciplinary proceedings with the Law Society of Saskatchewan.” (Affidavit of Marilyn Wappel sworn August 26, 2022 at para. 12).

The court is skeptical of this excuse for two reasons.

[ 22 ] First, the two years that Ms. Wappel dealt with her professional discipline matters pre-date the service of her statement of claim when the delay clock began in earnest. Time and effort expended on her Law Society discipline were resolved with the Order of the Discipline Committee of the Law Society dated July 6, 2016. With the discipline matter complete, Ms. Wappel should have been able to redirect her efforts to a reasonably timely prosecution of her action against SEI. [ 23 ] Second, if Ms.

Wappel had the wherewithal to deal with the vigours of professional discipline proceedings while in a depressive state, I cannot accept that after concluding these proceedings she was not similarly able to advance her claim against SEI by either attending mediation, providing document production, or serving a notice of intent to proceed, any of which would arguably have been less demanding than professional discipline proceedings. [ 24 ] Significantly, too, Ms.

Wappel completed the most taxing part of her action – commencing the action by issuing a statement of claim – when she was dealing with the Law Society discipline matter and was experiencing depression. Prosecuting the action would arguably have become less taxing after the claim was issued, particularly preparing a statement as to documents. Sister’s Illness [ 25 ] Ms. Wappel states that in the spring of 2019 her sister, who lives out of province, became ill and was subsequently diagnosed with cancer. Ms.

Wappel provided support to her sister through medical appointments and treatment planning and assisted her sister through chemotherapy and surgery, particularly in 2020. Ms. Wappel continues to support her sister with her health issues “up to and including the present day.” (Affidavit of Marilyn Wappel sworn August 26, 2022 at para. 23). [ 26 ] While the court is sympathetic to Ms. Wappel’s situation, many persons’ lives are challenged with family illnesses and sometimes even deaths. The time that Ms. Wappel devoted to her sister’s care seemingly became the obstacle to prosecuting her claim.

But the court knows little of the amount of time Ms. Wappel devoted to her sister’s care, where her sister lived, whether her sister had other caregivers and, most importantly, whether the time she spent with her sister significantly diminished her ability to take at least minimal steps to advance her claim. [ 27 ] I find that Ms.

Wappel’s reliance on her need to provide care to her sister fails to meet the expectation set out in Schening v Steel, 2020 SKCA 137 , 51 RFL (8 th ) 1 [ Schening ] where at para. 16 the court wrote: [16] A plaintiff may also put forward health issues to justify an inordinate delay in civil proceedings, whether that be personal health concerns or the health concerns of persons under the plaintiff’s care ( Prairie Water Ltd. v Inland Aggregates Ltd. , 2015 SKQB 297 , 80 CPC (7th) 382 ).

However, to excuse inordinate delay, a plaintiff must cogently explain why the health issues in question have caused or contributed to the delay—i.e., the plaintiff must rationally link the health issues to the delay by showing how they affected the plaintiff’s capacity to advance the litigation.

Where this has been established objectively on the evidence, the duration of the plaintiff’s health- related incapacity to advance matters will also become a relevant consideration ( Brown v Wawanesa Mutual Insurance Co. , 2013 SKQB 443 at para 40 , 435 Sask R 146 ). (Emphasis added) [ 28 ] The court in Schening continued, stating that “if plaintiffs intend to rely on health concerns to justify an inordinate delay in advancing their own litigation, they must do more than simply list off their…health concerns.” Necessarily, they must “explain their…health concerns in sufficient detail and explain why the concerns individually or cumulatively excuse the inordinate delay or parts thereof.” (para. 18). [ 29 ] Ms.

Wappel’s evidence falls short of cogently explaining how her sister’s health issues caused the delay. Even taking Ms. Wappel’s evidence to have made prosecution of her claim unrealistic, at best, her sister’s health concerns did not arise until Ms. Wappel’s claim had been issued for three years. COVID-19 Pandemic [ 30 ] Ms. Wappel stated that because of COVID-19 she had “significant concerns about attending meetings with multiple people” (Affidavit of Marilyn Wappel sworn August 26, 2022 at para. 25). Undoubtedly, COVID-19 threw a spanner in the gears of litigation.

However, as Justice Tochor wrote in Kobialko v Saskpower, Knourek and Grid One Solutions , 2021 SKQB 324 [ Kobialko ], “when assessing the impact of the COVID-19 pandemic, one must “have regard for the impact of the pandemic at that particular time in the litigation .” (para. 44, emphasis in the original). Justice Tochor cited Mostafa Altalibi Professional Corporation v Lorne S. Kamelchuk Professional Corporation , 2020 ABQB 673 at para 14 where the court held the pandemic did not prevent oral questioning from taking place by videoconference. In Kobialko the next stage in litigation would have required Mr.

Kobialko to respond to undertakings. Justice Tochor concluded that the plaintiff could have completed responses by obtaining the necessary information and providing it to his lawyer. [ 31 ] Similarly, I find that moving the litigation forward by serving an affidavit as to documents and then proceeding by videoconferencing for both mediation and pre-trial conference were realistic alternatives, alternatives in which many law firms and litigants had engaged throughout the pandemic. [ 32 ] There is an aura of late-come-across, sequential excuses for delay that Ms.

Wappel presents to the court: engagement in the professional discipline process, ill health of her sister, and COVID-19, each discrete from the other. However, none of these reasons, whether considered singularly or together, have a sufficient evidentiary basis to present an excuse for delay. Step Three – Interests of Justice [ 33 ] At this stage, having found both inordinate and inexcusable delay, I must ask an over-arching question: whether

it remains in the interest of justice that Ms. Wappel’s action should proceed. 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. [ 34 ] Referring to the prompts offered by Richards, J.A. in ICC , I will canvas the questions he posed to determine whether, notwithstanding delay, Ms. Wappel’s action should not be struck.

Prejudice to SEI if the case goes to trial [ 35 ] SEI states that given the inordinate delay occasioned by Ms. Wappel, several of its witnesses with key knowledge about the circumstances of Ms. Wappel’s employment and termination have since left SEI. In one instance, SEI no longer has contact information for the employee. [ 36 ] If Ms. Wappel’s claim goes to trial, the allegations in her statement of claim inform the court of the case that SEI will have to defend. Ms.

Wappel advances certain claims that potentially will engage matters that may lie beyond any written records in SEI’s possession and will require testimony from former employees recalling facts relevant to Ms. Wappel’s employment. For example, one finds in Ms. Wappel’s statement of claim the following allegations: 6. During her employment with the Defendant the Plaintiff faithfully performed all duties required of her in her position in a competent and professional manner and received satisfactory annual performance reviews. 7.

On February 10, 2014, the Plaintiff was advised by senior officers of the Defendant that they were looking into some missing corporate promotional items that she may be involved in and she was advised that she was being placed on leave for three days pending further investigation. … 8. On February 18, 2014, the Plaintiff was summoned to an off-site meeting with senior officers of the Defendant, including the Defendant’s Vice-President of Human Resources and Executive Vice-President.

At such meeting the Plaintiff was told that to close the matter she was to write up an explanatory statement with respect to the missing promotional items and to meet with the Defendant’s rehabilitation consultants to develop a return to work plan. … 12.

The Plaintiff says that during the interval she met with the Vice-President of Human Resources, and Executive Vice President for the Defendant on March 14, 2014, who indicated that they and others had searched the Plaintiff’s office at SaskEnergy and had found various documents in the Plaintiff’s office that gave rise to allegations of misconduct against the Plaintiff that the Defendant intended to investigate further. 13.

At no time during such meeting was the Plaintiff advised that the return to work plan was no longer acceptable to the Defendant. [ 37 ] These statements specifically name positions at SEI, for example the Vice-President of Human Resources who had direct involvement in Ms. Wappel’s termination. Maria McCullough, current Executive Vice President, Human Resources and Safety at SEI, has sworn an affidavit in which she states that Robert Haynes, former Senior Vice President, Human Resources, Environment & Corporate Affairs, retired April 5, 2019. Mr. Haynes hired Ms.

Wappel and she worked directly under him for several years, until he transferred to Human Resources in 1995. Ms. McCullough states that Mr. Haynes was involved with all matters in issue in this action in his role in Human Resources and was one of two persons at SEI who implemented Ms. Wappel’s termination in March 2014. Ms. McCullough describes four other key former management personnel at SEI who are no longer in SEI’s employ but who would provide evidence at trial. [ 38 ] Whether Mr.

Haynes or other “senior officers of the Defendant” are available to testify, are willing to testify, or have accurate memories of Ms. Wappel’s termination has not been proven. However, I cannot realistically expect SEI to have obtained affidavits of each of these individuals to assess any of these potentially prejudicial impediments to SEI if the matter were to proceed to trial.

I can, though, as Justice Richards did in ICC , take notice that relevant matters respecting determination of prejudice 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…” (para. 45(a)). Length of Inexcusable Delay [ 39 ] The longer the unjustifiable delay, the less appropriate is an order permitting the matter to go to trial.

As an approximate measure of what delay is “too long,” Justice Scherman in Morsky Construction Ltd. v Nickle Lake Regional Park Authority , 2015 SKQB 257 , 151 CLR (4 th ) 72 [ Morsky ] measured the delay against another measure of timeliness important in bringing forward an action: the appropriate limitation period for the claim. In this instance the limitation period is two years. Ms. Wappel’s delay considerably exceeds the applicable limitation period. [ 40 ] Respecting the issue of prejudice, I find that Ms. Wappel’s delay in prosecution of her action has raised a spectre of considerable prejudice to SEI.

Her termination occurred over eight and one-half years ago. This matter will not proceed to trial for several months. The delay is prejudicial to SEI. The Stage of Litigation [ 41 ] In ICC , the court directed at para. 45(

c) that “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.” Ms. Wappel has not progressed her claim to mediation and no affidavits of documents have been exchanged. Nothing more than the statement of claim has been issued. The Impact of the Inexcusable Delay on SEI

[ 42 ] SEI states that it does not rely on impacts to its reputation or livelihood resulting from Ms. Wappel’s inexcusable delay.

The Context in Which the Delay Occurred [ 43 ] In ICC at para 45 (e), the court observed that “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.” [ 44 ] Where a defendant “lies in the weeds” only to bring an application with little or no forewarning, this may weigh against striking the claim: Gelinas v Saskatchewan Crop Insurance Corporation, 2017 SKQB 270 at para 50 .

To the contrary, I find that SEI attempted to advance the litigation when it requested dates for mediation on several occasions in 2017. SEI initiated the last exchange between the parties when it suggested the parties exchange affidavits as to documents and asked whether Ms. Wappel would provide her affidavit before SEI’s proposed mediation dates in October 2017. Ms. Wappel did not respond. The Reasons Offered for the Delay [ 45 ] In considering the justice of allowing a claim to move forward to trial, a court should revisit the plaintiff’s reasons for delay. I have already found Ms.

Wappel’s delay cannot be excused. She did nothing beyond serving the statement of claim to advance her claim. [ 46 ] Furthermore, as previously cited, Justice Scherman in Morsky compared delay to the applicable limitation period in the first instance. Not only does Ms. Wappel’s delay considerably exceed the applicable limitation period, she also waited until the last minute, May 26, 2016, to issue her claim, just before the expiry of the limitation period (having been terminated on May 30, 2014).

Justice Mitchell in Crescent Point Resources Partnership v Husky Oil Operations Limited , 2020 SKQB 128 , 61 CPC (8 th ) 393, in a similar application to have the plaintiff’s claim struck for delay, remarked: [44] It seems Crescent Point took a lackadaisical approach to this litigation. It filed a statement of claim literally at the last possible moment. Understandably, Crescent Point wanted to protect its claim from being statute barred; however, it waited until the eve of the expiry of the limitation period before choosing to initiate this action. [ 47 ] But not only did Ms.

Wappel wait until “the last possible moment” to issue her claim, she did not serve the statement of claim until November 18, 2016. Another nearly six months had unnecessarily passed without SEI being aware of the need to mount a defence to alleged conduct taken two and one-half years previously. One must accept that Ms.

Wappel was aware that Rule 3- 10(1) of The Queen’s Bench Rules requires that a statement of claim must be served on a defendant within six months after the date that it is issued, unless service is extended by court order. [ 48 ] SEI does not accept that six months had “unnecessarily” passed between the issuance and service of the claim. Instead, SEI suggests that Ms. Wappel was caught between the limitation period expiring on May 30, 2016, thereby requiring issuance of the claim, and the conclusion of her proceedings before the Law Society of Saskatchewan on June 14, 2016, based on an agreed statement of facts.

That statement of facts, SEI states, failed to disclose that Ms. Wappel had commenced an action against SEI, the same entity respecting whom she admitted she had forged or fabricated signatures on corporate documents. SEI points out that in considering the appropriate penalty, the Law Society expressly considered that Ms. Wappel had already paid a significant price for her conduct, including the loss of her employment. SEI states that Ms.

Wappel cannot admit to her wrongful conduct to the Law Society, take the benefit of her admission to minimize her penalty, and then seek to revive an action alleging that she was wrongfully terminated in relation to the same conduct. [ 49 ] I find that Ms. Wappel’s reasons for delay are inadequate to move the dial when applying the third step in ICC . The Role of Counsel in Causing Delay [ 50 ] I attribute little or no delay to the conduct of counsel. Ms. Wappel states that her lawyer retired in February 2017 and that her current lawyer did not take over the file until August 2017.

Emphatic proof of what was happening in February 2017 comes from an email from Ms. Wappel’s law firm to SEI’s law firm stating that it was waiting for her instructions in February 2017. Ms. Wappel does not state that she was frustrated in her inability to advance her claim from February to August 2017 (a rather inconsequential period of delay in any event) because she did not have a lawyer assigned to her file. [ 51 ] I also accept SEI’s suggestion that Ms. Wappel is a sophisticated litigant, with over 20 years experience as a lawyer.

She is therefore “familiar with the ins and outs of litigation”: ICC at para 4 (g). Furthermore, to reiterate, Ms. Wappel has been represented by counsel throughout these proceedings. The Public Interest [ 52 ] I see little in Ms. Wappel’s claim for wrongful dismissal that goes beyond her personal interest. In Taylor v Moose Jaw Downtown and Soccer/Field House Facilities Inc. (Mosaic Place), 2021 SKCA 123 a public sector employee, terminated for cause like Ms. Wappel, sued for wrongful dismissal. She unsuccessfully appealed the striking of her action to the Court of Appeal.

The court agreed that the action was a “typical employment dispute engaging allegations of wrongful dismissal and related damages,” and commented at para. 71 that the fact that “Mr. Taylor was a public sector employee fired for cause does not elevate this action into what ICC describes, at paragraph 45 (h), as the ‘narrow category of actions’ where the larger public interest can be properly put on the scales when balancing the pros and cons of striking a claim.” [ 53 ] No looming public interest is at stake in striking Ms. Wappel’s claim for want of prosecution.

Conclusion [ 54 ] Having found no interests of justice militate in favour of my earlier finding that Ms. Wappel’s delay is both inordinate and inexcusable, her claim shall be struck. [ 55 ] Costs in the usual manner are awarded in favour of SEI. J. D.H. LAYH