A.M. in her own right, v. A.M. as Litigation Guardian for J.A.M. and as Litigation Guardian for A.M.M.,, 2023 SKKB 176

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 176 Date: 2023 08 21 Docket: QBG-RG-01838-2010 Judicial Centre: Regina BETWEEN: A.M. in her own right, and A.M. as Litigation Guardian for J.A.M. and as Litigation Guardian for A.M.M., PLAINTIFFS (RESPONDENTS) - and - TROY HAGEN, CORY LONGHURST, TYLER BOYNTON, TYLER BACON, PETER TUNISON, JENNIFER FERRIS, SHAWN GEORGE and JASON GUNDERSON, DEFENDANTS (APPLICANTS) Counsel: A.M. on her own behalf Aaron A.

Fox, K.C. for the defendants applicants, Cory Longhurst, Tyler Boynton, Tyler Bacon, Peter Tunison, Jennifer Ferris, Shawn George and Jason Gunderson Katrina M. Swan, K.C. for the defendant applicant, Troy Hagen ___________________________________________________________________________ JUDGMENT POPESCUL C.J.K.B. August 21, 2023 ___________________________________________________________________________ I. INTRODUCTION [ 1 ] In 2010, Ms.

A.M. commenced an action [Claim] against the defendants, Troy Hagen, Cory Longhurst, Tyler Boynton, Tyler Bacon, Peter Tunison, Jennifer Ferris, Shawn George and Jason Gunderson, collectively the [Defendants], both in her own right and as Litigation Guardian for her two minor children, J.A.M. and A.M.M. The Claim relates to the tragic death of her husband, C.M., in October of 2008. [ 2 ] The Defendants now apply pursuant to Rule 4-44 of The Queen’s Bench Rules for an order striking the Claim for want of prosecution. Further, or in the alternative, the Defendants seek

summary judgment dismissing the Claim for the reasons set

out in the Notice of Application [Application]. [ 3 ] On May 11, 2023, the Application was heard. Aaron Fox, K.C., counsel for all of the Defendants except for Troy Hagen, and Katrina Swan, K.C., counsel for the defendant, Troy Hagen, argued in support of the Application to strike the Claim and for

summary judgment. A.M. appeared on her own behalf but did not present meaningful argument in response to the Defendants’ Application. I reserved my decision. II. ISSUES [ 4 ] There are two substantive issues addressed in this decision. The first is whether the Claim should be struck for want of prosecution pursuant to Rule 4-44. Further, or in the alternative, there is a question of whether the Claim should be summarily dismissed pursuant to Rules 7-2 to 7-5. [ 5 ] I have also addressed the issue of costs. III.

FACTS [ 6 ] Counsel for the Defendants jointly filed a brief of law in support of the Application, which succinctly sets out the pertinent chronology of the case. I have reviewed the chronology in detail, along with all the material filed to date, and find it to be accurate. As a result, I adopt the chronology set out in the brief of law, with some additions, which is reproduced below for ease of reference. [ 7 ] However, before setting out the chronology of the case, I pause to briefly relate the circumstances that gave rise to this Claim.

The Claim alleges that the daughter of the plaintiff and C.M. was the victim of sexual assaults. Two individuals were charged. However, the Crown later advised the plaintiff and C.M. that they would not be proceeding with charges against one of the accused. [ 8 ] The Claim alleges that C.M. was agitated by this decision. As a result, on the evening of October 8, 2008, armed with an axe, C.M. attended a location in the 2200 block of [ redacted ] Street in Regina, Saskatchewan. [ 9 ] Police were dispatched to the 2200 block of [ redacted ] Street. C.M. fled initially upon police arrival.

The responding officers located C.M. and verbally advised him to get on the ground. C.M. did not comply. Pepper spray was deployed. [ 10 ] Officers eventually gained control of C.M. with the use of restraints and handcuffs and C.M. was read his rights and warnings. He did not respond. [ 11 ] Officers noticed blood on the sidewalk. Given the lack of response and blood, EMS was called. However, before arrival, C.M.’s condition worsened and the Defendants in attendance determined that C.M. did not have a pulse. CPR commenced and continued until EMS attended.

Life-saving efforts were unsuccessful and C.M. died. [ 12 ] The relevant chronology is as follows: • October 8, 2008 - C.M. was arrested. C.M. died during the interaction with police. • October 8, 2010 – Plaintiff’s statement of claim was issued. At that time the plaintiff was represented by Bob P.

Hrycan. • June 15, 2011 – Plaintiff’s amendment statement of claim was issued. • February 1, 2012 – Statement of defence on behalf of former Chief Troy Hagen was filed. • April 11, 2012 – Statement of defence of the Defendants other than Troy Hagen was filed. • October 11-12, 2012 – Counsel for the Defendants wrote to the Dispute Resolution Office and plaintiff’s counsel at the time to request that mandatory mediation be scheduled. • February 1, 2013 – The parties attended mandatory mediation. • February 4, 2013 – Counsel for the Defendants wrote to plaintiff’s counsel requesting the plaintiff’s statement as to documents. • August 12, 2013 – Counsel for the Defendants served their statement as to documents. • September 5, 2013 – Counsel for the Defendants wrote to plaintiff’s counsel to request the plaintiff’s statement as to documents and to indicate that they were anxious to move the matter ahead. • September 25, 2013 – Counsel for the Defendants wrote to plaintiff’s counsel again to request the plaintiff’s statement as to documents and to advise that an application for an order to compel production would be brought if the documents were not received by October 11, 2013, failing which the Claim would be struck. • October 7, 2013 – Plaintiff’s counsel served the Defendants with a notice of withdrawal. • November 18, 2013 – Counsel for the Defendants wrote to the plaintiff requesting her affidavit of documents by December 9, 2013, failing which they would bring an application to compel production.

No response was received. • January 8, 2014 – Counsel for the Defendants served the plaintiff with a notice of application and supporting material, seeking her affidavit of documents.

• January 24, 2014 – Counsel for the Defendants were advised by Merchant Law Group that they had been retained by the plaintiff. • January 27, 2014 – Counsel for the Defendants wrote to plaintiff’s counsel at Merchant Law Group to request a notice of change of solicitor and an affidavit of documents.

Counsel for the Defendants agreed to adjourn their application to compel production to March 13, 2014. • March 7, 2014 – Counsel for the Defendants received the plaintiff’s affidavit of documents. • May 1, 2014 – Counsel for the Defendants wrote to plaintiff’s counsel to request dates for examinations for discovery; none were provided. • June 17, 2014 – Counsel for the Defendants wrote to plaintiff’s counsel to request dates for examinations for discovery; none were provided. • July 29, 2014 – Counsel for the Defendants advised plaintiff’s counsel that they intended to apply to the Court for appointment of a case management judge. • August 20, 2014 – Merchant Law Group was served with a request for a case management order, which was granted on August 26, 2014.

It was at this time that I was appointed the case management judge. • September 5, 2014 – A case management conference was conducted before me, as the designated case management judge.

Examinations for discovery were scheduled for January of 2015. • September 10, 2014 – Counsel for the Defendants wrote to plaintiff’s counsel at Merchant Law Group to request additional documents. • January 8-28, 2015 – Examinations for discovery of all parties were conducted, with counsel from Merchant Law Group representing the plaintiff. • September 8, 2015 – Counsel for the Defendants delivered their replies to undertakings to plaintiff’s counsel. • January 11, 2016 – Plaintiff’s counsel provided the Defendants with replies to undertakings. • January 20, 2016 – Counsel for the Defendants wrote to plaintiff’s counsel to request the balance of the replies to undertakings, failing which they would bring an application to compel same, failing which the Claim would be struck. • March 3, 2016 – Plaintiff’s counsel advised that he would be providing the responses to undertakings. • April 4, 2016 – Plaintiff’s counsel provided the replies to undertakings. • July 20, 2017 – Counsel for the Defendants wrote to the Court of Queen’s Bench requesting a case management conference so that the matter could be scheduled for a pre-trial.

The pre-trial conference was scheduled for January 22, 2018. • January 22, 2018 – Neither the plaintiff nor her legal counsel from Merchant Law Group attended the pre-trial conference scheduled for this date and no pre-trial brief was filed. The plaintiff and her counsel were contacted by phone. Counsel advised that he and the plaintiff had a different view of the file and accordingly, he asked for leave to withdraw. The plaintiff indicated that she was taking steps to retain new counsel.

Justice Leuer, as he then was, issued a fiat ordering that the plaintiff pay each of the eight Defendants $500.00 in costs in any event of the cause as a result of the delay in proceeding with the pre-trial conference. • June 28, 2018 – The Defendants served an appearance day notice dated June 28, 2018, as the plaintiff had failed to provide a pre- trial brief and witness list. • July 26, 2018 – The appearance day notice was heard before Justice Leuer, who made an order which was formally issued and served on the plaintiff on August 15, 2018.

The order: o required the plaintiff to serve and file her pre-trial brief and witness list; o confirmed that the Defendants could apply to strike the Claim if the plaintiff failed to comply with the court-ordered deadline for filing a pre-trial brief and witness list; and o provided that service on the plaintiff could be effected via an email address provided by the plaintiff. • The plaintiff’s materials were not filed or served by the court-ordered deadline, being October 12, 2018. • October 16, 2018 – Mr.

Merchant of Merchant Law Group advised counsel for the Defendants that he was going to act on the plaintiff’s behalf. • January 17, 2019 – The plaintiff was ordered to file and serve any affidavits she wished to rely upon by January 30, 2019. Briefs of law were to be filed by February 6, 2019. The plaintiff did not file materials. • February 14, 2019 – Counsel for the Defendants filed a contempt application concerning the plaintiff’s failure to comply. The plaintiff was ordered to pay $800.00. • May 2, 2019 – A case management conference was held. Mr.

Merchant went on record and indicated that he would be bringing an application seeking disclosure of further documents (no such application was ever brought).

• May 31, 2019 – A case management conference was reconvened. Mr. Merchant did not appear, and an order was made directing that the matter be set down for pre-trial conference. • November 1, 2019 – A pre-trial conference was conducted before Justice Tochor, with Mr. Merchant in attendance. The case was not resolved. • July 24, 2020 – The pre-trial conference was reconvened. The plaintiff advised that she was retaining new counsel. Mr. Merchant, who was in attendance, was not previously aware of this. The matter was adjourned to November 2, 2020. • November 2, 2020 – The pre-trial conference was again reconvened.

The plaintiff advised that Mr. Merchant was no longer representing her and that she was trying to obtain new counsel. The matter was adjourned to November 30, 2020. • November 30, 2020 – The pre-trial conference was again reconvened. The plaintiff advised that she had not yet retained new counsel. • December 8, 2020 – A case management conference was reconvened. The plaintiff indicated that she was still looking to retain counsel. She was advised that the Defendants were contemplating bringing an application to dismiss for want of prosecution.

The matter was adjourned. • January 15, 2021 – The plaintiff and her former counsel, Mr. Merchant, brought concurrent applications dealing with his account and the transfer of the plaintiff’s file to new counsel. • January 18, 2021 – The pre-trial conference was reconvened. The plaintiff requested an adjournment to allow time to obtain her file from Mr. Merchant. • February 2, 2021 – A consent order issued securing Mr. Merchant’s legal fees and directing that the file be transferred to the plaintiff. • February 5, 2021 – The pre-trial conference was reconvened.

The plaintiff confirmed that she had her file from Mr. Merchant and that she was speaking to a new lawyer. • February 26, 2021 – The pre-trial conference was reconvened. Mr. Roch Dupont indicated that he would appear as the plaintiff’s counsel of record. He requested an adjournment to review the file. • March 26, 2021 – The pre-trial conference was reconvened. Plaintiff’s counsel, Mr. Dupont, asked for an adjournment for settlement discussions. • October 8, 2021 – The pre-trial conference was again reconvened. Mr. Dupont attended but advised that he was in a conflict and could not act for the plaintiff.

The plaintiff indicated that she would find new counsel. • June 15, 2022 – Counsel for the Defendants emailed the plaintiff asking about her intentions in moving the matter forward. • June 23, 2022 – A second email was sent to the plaintiff again asking for a response concerning proceeding with the matter.

No response was received. • August 4, 2022 – A letter from Defendants’ counsel was delivered to the plaintiff, both by e-mail and personal service, asking that: o she confirm whether she had counsel acting for her; o she provide documents in support of her Claim for economic loss, including from Shaw Pipe; o she provide an updated witness list; o she provide a notice of expert witnesses that she had indicated she intended to call; o she provide copies of all expert witness reports that she intended to rely upon.

The letter delivered to the plaintiff also indicated that an application to strike would be forthcoming if an appropriate response, with the requested information, was not received. • August 5, 2022 – Counsel for the Defendants received a phone call from the plaintiff’s phone number and a voice message from a male individual, who appeared to be acting on behalf of the plaintiff, advising among other things that they had no intention to proceed to trial and would be dealing with this matter through the media. • August 9, 2022 – Counsel for the Defendants returned the call to the phone number that the August 5, 2022 message had been received from, asking that they confirm the message and the plaintiff’s intentions.

No response was received. • August 10, 2022 – An e-mail was sent to the plaintiff referencing the August 4, 2022 letter and the message received on August 5, 2022, asking that she: o identify the name of the caller; o confirm that he was speaking on her behalf; o confirm that she did not intend to move her court action ahead.

No response was received. The plaintiff has not contacted counsel for the Defendants since. • February 1, 2023 – Counsel for the Defendants filed the application in which they seek to strike the plaintiff’s Claim for want of prosecution pursuant to Rule 4-44(

a) of The Queen’s Bench Rules or, in the alternative, an order for

summary judgment dismissing the Claim. • April 20, 2023 – This was the original hearing date for the Defendants’ application. Counsel for the Defendants and the plaintiff attended court. Counsel for the Defendants had filed comprehensive materials and briefs of law. The plaintiff did not file anything. At the outset of the proceeding, I confirmed with the plaintiff that she did not have counsel.

Given the circumstances, including that she was self-represented and did not file any material, I inquired if it might be useful to take a few minutes before starting to briefly explore the possibility of resolution with counsel for the Defendants. Court was adjourned at 10:10 a.m. At 10:30 a.m., I returned to the courtroom and neither the plaintiff nor the people she had attended court with were in the courtroom. I was advised that there was a situation in the court house corridor which resulted in A.M. and a male she was with leaving, or being asked to leave. As a result, I adjourned the matter to May 11, 2023.

The adjournment was peremptory. The plaintiff was notified of the adjourned date. • May 11, 2023 – The plaintiff appeared in court. The Defendants’ application was heard. A.M. did not file materials in response to the application, nor did she present any argument, even though she was given the opportunity to do so and was cautioned about the possible consequences. IV. ANALYSIS A.

Dismissal for Want of Prosecution – Rule 4-44(a) [ 13 ] The Defendants have applied pursuant to Rule 4-44 , which pertains to applications to deal with delay: 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. [ 14 ] The leading authority on Rule 4-44 is International Capital Corp. v Robinson Twigg & Ketilson, 2010 SKCA 48 , 319 DLR (4th) 155 [ ICC ] . Therein, Justice Richards (as he then was), articulated the test that the Court must utilize when assessing whether a claim should be struck pursuant to Rule 4-44. It is a three-step approach: 1. First, it must be determined whether there is inordinate delay.

This involves a consideration of “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” (at para. 43). 2. Second, the reasons for the delay must be analyzed, with a goal of determining whether the delay is excusable. This involves a 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” (at para. 44). 3.

Third, if delay is both inordinate and inexcusable, there must be a consideration of whether it is in the interests of justice that the case proceeds to trial notwithstanding delay. In the context of this analysis, the following non-exhaustive list of factors should be considered (at para. 45): a. The prejudice the defendant will suffer in mounting its case if the matter goes to trial; b. The length of 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. [ 15 ] While ICC was decided under the former Queen’s Bench Rules , the test outlined therein continues to be the leading authority on the relevant principles to consider when faced with an application for dismissal for want of prosecution ( Taylor v Moose Jaw Downtown and Soccer/Field House Facilities Inc. (Mosaic Place), 2021 SKCA 123 at paras 21-28 ). 1. Inordinate Delay [ 16 ] I must first determine whether the Defendants have established that the delay in moving this case forward has been inordinate ( ICC at para 43 ).

[ 17 ] As noted by Danyliuk J. in Marion v English River Enterprises Limited Partnership, 2019 SKQB 2 at para 26 , “ [t]here is no temporal bell that tolls after the effluxion of a specific length of time” when it comes to assessing whether delay is inordinate. In other words, in Saskatchewan, there is no “hard-cap” as to what constitutes inordinate delay. The determination is dependent on the unique circumstances of each case. [ 18 ] While fact-specific, it is useful to consider other cases where delay has found to be inordinate: a.

In Saskatchewan Crop Insurance Corp. v Gustafson, 2022 SKQB 5 , 76 CPC (8th) 181 , a delay of five years was found to be inordinate. b. In Kocsis Transport Ltd. v Dominion Construction Co., 2018 SKQB 187 at para 9 , 92 CLR (4th) 114 , a delay of eight years was found to “clearly constitute[s] inordinate delay” when attempts to move the matter forward were the direct result of the actions of the defendants. c. In Huard v Winning Combination Inc., 2021 SKQB 65 at para 20 , a delay of more than 10 years was found to be “totally inordinate and unacceptable”. d. In Buurman Estate v Diamond D.

Agro Ltd., 2011 SKQB 290 , 381 Sask R 76 , the delay was found to be inordinate when no steps were taken to advance the litigation for a period of over 10 years. e. In Rubidge v Holtzhausen, 2020 SKQB 125 , a delay of nearly 15 years was found to be inordinate. f. In Gibson v Saskatchewan, 2022 SKKB 211 at para 22 [ Gibson ] , a delay of 17 years was found to “overwhelmingly demonstrate[s] inordinate delay”. g.

In Gordstone Enterprises Ltd. v Dairy Queen Canada Inc., 2010 SKQB 471 , 367 Sask R 165 , a delay of 15 to 16 years from the date of the incident to the date of the application was found to be inordinate. [ 19 ] I will begin by calculating the overall length of delay. Here, the events leading up to this action occurred in October 2008, nearly 15 years ago.

The action was commenced in October 2010, nearly 13 years ago. [ 20 ] I do note that there was a delay of approximately one and a half years between the time the action was commenced (October 2010) and the time the Defendants’ filed their respective statements of defence (February and April of 2012). However, the statement of claim was not amended until June of 2011 to identify the individually named Defendants. As a result, that aspect of the delay is not solely attributable to the Defendants.

Even if it were, there nonetheless remains a delay of approximately 11 years. [ 21 ] As noted in the Defendants’ brief of law, a factor that the Court has considered when assessing whether there has been inordinate delay is the time that has elapsed since the last meaningful step was taken in the action. The last step taken in this matter, prior to the within application being made, was a reconvened pre-trial conference on October 8, 2021. However, at that time, it does not appear that there were any substantive resolution discussions as an adjournment was requested for the plaintiff to seek legal representation.

No meaningful steps to advance the litigation have been taken since, conservatively, March 26, 2021, assuming that settlement discussions did occur as requested by plaintiff’s counsel at the time. That is a delay of over two years. [ 22 ] More accurately, I find that the last meaningful step taken in this matter was on November 1, 2019, being the last time the parties engaged in settlement discussions at a pre-trial conference. The reconvened pre-trial conferences after that date were consistently non-productive given the plaintiff’s repeated requests for adjournments to obtain new counsel.

Thus, I find that over three and a half years have elapsed since the last meaningful step was taken in this action. [ 23 ] Based on the circumstances in the present case, the delay of nearly 13 years from the time the matter was commenced to the present day is inordinate. One would not expect a matter of similar complexity to take this long to proceed to trial. This appears to be a relatively straightforward negligence claim. Further, no meaningful steps have been taken to advance this matter for approximately three and a half years. 2.

Inexcusable Delay [ 24 ] Inordinate delay having been established, the next step in the analysis pursuant to the Court of Appeal in ICC is to determine whether there is a reasonable excuse for the delay. In Saskatchewan Crop Insurance Corporation v McVeigh, 2018 SKCA 76 at para 59 , [2019] 1 WWR 290 , the Saskatchewan Court of Appeal noted that this analysis requires the Court to consider the nature of the claim, the diligence with which the claim has been pressed by the plaintiff, and other reasons offered by the plaintiff as to why the matter has not progressed more quickly.

The defendants’ actions may be considered in this analysis. [ 25 ] The burden is on the plaintiff to show why the inordinate delay should be excused (see Saskatchewan Government Insurance v Bear, 2017 SKQB 276 at para 29 , 14 CPC (8th) 171 ; and Anderson v Wascana Wood Components Ltd., 2010 SKQB 357 at para 18 , 361 Sask R 219 ). [ 26 ] It is apparent that the plaintiff has failed in her obligation to move this case along. The matter has been rife with delay at every stage of the proceedings.

Further, the plaintiff has not offered any excuse, either in oral submissions or in affidavit evidence, to explain or justify the delay. She chose not to file any affidavit material setting forth the reasons why the lawsuit has languished. There is nothing before the Court to explain the inordinate delay. As a result, there is simply no basis for any conclusion other than that the delay is inexcusable. 3. Interests of Justice

[ 27 ] The final consideration is whether it is in the interests of justice for the Claim to proceed despite the inordinate and inexcusable delay. After considering all the relevant factors, including the eight factors enunciated by the Court of Appeal in ICC , I conclude that it is not in the interests of justice to permit this Claim to proceed. The following considerations lead me to this conclusion. i. Prejudice to the Defendants [ 28 ] In ICC , Richards J.A. stated at paragraph 45(

a) that relevant matters with respect to determining 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 ...”. Further, he noted that a “court can infer that the passage of time will typically have at least some effect on the memories of witnesses”. [ 29 ] That said, as noted by Smith J. in Gibson at paragraph 14 , the “mere fading recollection of witnesses is not sufficient to dismiss a claim”.

Prejudice to the defendant is but one factor that is relevant in the analysis. [ 30 ] Each of the Defendants, save for Troy Hagen, swore an affidavit in support of the within application for dismissal for want of prosecution. In his affidavit, Shawn George provided that he has “concerned that the lengthy delay will have an impact on people’s memories of that night”.

The affidavit of Cory Longhurst provides: “while I still recall the events of that night I am concerned that the memory of the various people involved will have diminished as a result of the passage of time”. [ 31 ] While there were concerns raised in the material filed about recollections fading with the passage of time, none of the Defendants specifically attested to their memories of the night of the incident in question having been negatively impacted by the delay.

Further, there is no suggestion that there has been a loss or destruction of physical evidence, nor is there any evidence to suggest that there has been a death or disappearance of any of the relevant witnesses. [ 32 ] Nonetheless, I am prepared to infer that given the passage of nearly 15 years since the date of the incident in question, there will be at least some effect on the memories of the witnesses. This factor weighs very slightly in favour of dismissal. ii. The Length of Inexcusable Delay [ 33 ] In ICC , the Court of Appeal noted at paragraph 45(

b) that “[a]n unjustifiable delay of a few months is something quite different than an unjustifiable delay of many years”. Further, it was noted that “the longer the unjustified delay, the more likely it is that letting a matter go to trial will not be appropriate”.

When assessing the length of the delay, it is sometimes of assistance to quantify the delay in relation to applicable limitation periods ( Bartlett v Smith, 2020 SKQB 315 at para 45 [ Bartlett ] ; and Morsky Construction Ltd. v Nickle Lake Regional Park Authority , 2015 SKQB 257 , 51 CLR (4th) 72 ). [ 34 ] Here, there has been a significant delay of nearly 13 years since the matter was commenced. Further, approximately three and a half years have elapsed since any meaningful steps were taken to advance the Claim. Given this considerable delay, this factor weighs in favour of dismissal. iii.

The Stage of the Litigation [ 35 ] In ICC , the Court of Appeal noted at paragraph 45(

c) that “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”. [ 36 ] In the present circumstances, the matter has progressed well beyond the pleadings stage. The parties participated in mandatory mediation, exchange of documents, questioning, responses to undertakings and multiple pre-trial conferences.

While the parties may need to update and exchange some more recent documents and arrange for expert opinions prior to trial, overall, the matter is much closer to trial than it is to commencement. This factor does not assist the Defendants. iv. The Impact of the Inexcusable Delay on the Defendants [ 37 ] In ICC , the Court noted at paragraph 45(

d) that 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 of the defendant”. [ 38 ] Further, in Bartlett , Keene J. recognized that defendants need to be free of litigation hanging over their heads.

Further, he noted at paragraph 49 that “[i]t can be safely presumed that being sued and then having the matter hang in limbo for eight years is damaging”. [ 39 ] Here, there is no suggestion that the Claim has put any of the defendants’ livelihoods at risk. To the contrary, the affidavits of Cory Longhurst, Shawn George, and Jason Gunderson affirm that the Claim has not directly affected their employment. [ 40 ] That said, the plaintiff has cast the Claim into the public realm, which could impact the personal and professional reputation of the Defendants.

The affidavits of Tyler Boynton and Jennifer Ferris provide that there was a public poster campaign in Central Park in Regina in 2020 that named each of the Defendants, accusing them of wrongdoing in the death of C.M. Further, the affidavit of Tyler Bacon provides that he has been publicly accused of being a murderer.

According to the affidavit of Aaron Fox, K.C., as recently as August 5, 2022, there were additional threats of negative publicity relating to this matter. [ 41 ] While these actions are not directly related to the Claim itself, the underlying facts are inherently related to the October 2008 incident that led to the death of C.M. I am prepared to accept that the ongoing nature of the Claim, combined with the negative publicity, negatively impacts the Defendants. This factor weighs in favour of dismissal.

As found in Bartlett , it can be safely presumed that the serious allegations advanced against the Defendants combined with the delay is damaging.

v. The Context in which the Delay Occurred [ 42 ] In ICC , the Saskatchewan Court of Appeal noted as follows with respect to this factor: 45(

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. 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. [ 43 ] Further, in Gelinas v Saskatchewan Crop Insurance Corp., 2017 SKQB 270 at para 50 , 72 CCLI (5th) 114 , the Court noted that “the more aggressive a defendant’s conduct is in pressing the matter forward, the more likely a court will find that the offending delay justifies a decision to strike the claim”. [ 44 ] In the present circumstances, since the commencement of the Claim, the Defendants have repeatedly attempted to move the matter forward, despite ongoing delay by the plaintiff.

The timeline outlined above illustrates the Defendants’ efforts. To summarize, however, it is the Defendants who: a. Undertook efforts to

schedule mandatory mediation; b. Repeatedly requested the plaintiff’s statement as to documents; c. Brought an application to compel production of the plaintiff’s statement as to documents; d. Repeatedly requested dates for an examination for discovery; e. Applied for a case management judge to move the matter forward; f. Repeatedly requested completed replies to undertakings; g. Brought an appearance day notice to compel the plaintiff’s pre-trial brief and witness list. h.

Brought a contempt application in light of the plaintiff’s failure to comply with the order that resulted from the appearance day notice; and i. Repeatedly contacted the plaintiff requesting an update as to her intentions relating to the Claim. [ 45 ] In essence, the Defendants have been solely responsible for pushing this matter forward. The plaintiff has done virtually nothing without ongoing and repeated attempts by the Defendants to move the matter forward.

This is so despite several warnings from the Defendants that they would bring an application for dismissal if the plaintiff did not take steps to advance the litigation. This factor weighs heavily in favour of dismissing the plaintiff’s Claim. vi. The Reasons Offered for the Delay [ 46 ] As noted above, the plaintiff has not offered any excuse, justification or rationale, either in oral submissions or in affidavit evidence, to explain or justify the delay. There is nothing before the Court to explain the inordinate delay.

The silence of the plaintiff in response to this application, and the failure to provide any insight into the reasons for the ongoing delay weighs in favour of dismissal. vii. The Role of Counsel in Causing Delay [ 47 ] In the brief of law filed, the Defendants candidly acknowledge that the plaintiff has changed representation various times, and that some of the delay has occurred due to change over and other issues resulting from retaining and withdrawing counsel. [ 48 ] It is evident that the plaintiff has changed counsel on numerous occasions.

Further, based on the simultaneous applications by the plaintiff and Mr. Merchant relating to outstanding fees and the transfer of the file which resulted in a consent order, it is evident that there was some delay caused by these changes of counsel. However, this delay is insignificant when considering that there has been a delay of over 13 years since the Claim was commenced. I am not prepared to assign significant blame to counsel for the delay. This factor is neutral. viii. Public Interest [ 49 ] There certainly is a public element to this Claim given the public poster campaign.

Further, the public has an interest in ensuring that police services are efficient, transparent and accountable. As noted by the Supreme Court of Canada in Penner v Niagara (Regional Police Services Board), 2013 SCC 19 at para 33 , [2013] 2 SCR 125 , “[p]olice oversight is a complex issue that attracts intense public attention and differing public policy responses”. Nonetheless, the public interest in police accountability, both through internal and external mechanisms, must be balanced with the inordinate delay in the present circumstances. ix.

Conclusion [ 50 ] Based on the entirety of the circumstances addressed above, I am satisfied that it is an appropriate case to strike the plaintiff’s Claim pursuant to Rule 4-44(a). It has been over 13 years since the Claim was commenced, and most, if not all, of the

progress made to date has resulted from the Defendants’ efforts. There is no indication that the plaintiff is prepared to proceed, nor is there any indication that she intends to do so. To the contrary, there is evidence that the plaintiff does not wish to proceed. [ 51 ] Further, the plaintiff has not offered any explanation as to why the matter has taken so long to proceed or presented any evidence or argument against the application to strike.

The material, argument and evidence before me is entirely undisputed. [ 52 ] In conclusion, given the prejudice that may result to the Defendants if the Claim were permitted to proceed, the length of delay, the impact of the delay on the Defendants, the context of the delay, and the absence of reasons offered for the delay, the plaintiff’s Claim is hereby struck pursuant to Rule 4-44(a). B.

Summary Judgment 1.

Summary Judgment Roadmap [ 53 ] While the above noted analysis dispenses with the Claim, in the event my conclusion is found to be incorrect, I will proceed to decide the Defendants’ application for

summary judgment. [ 54 ] The Defendants submit that there is no genuine issue requiring a trial, or in the alternative, that the Court can sufficiently weigh the evidence and make inferences such that it would not be in the interests of justice to proceed to trial. As a result, they request

summary dismissal of the plaintiff’s Claim. [ 55 ] Rule 7-5(1)(

a) provides that the Court may grant

summary judgment if it is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence. Rule 7-5(2) sets out the factors that the Court must and may consider when determining whether there is a genuine issue requiring trial: 7-5

(2) In determining pursuant to clause (1)(

a) whether there is a genuine issue requiring a trial, the Court: (

a) shall consider the evidence submitted by the parties; and (

b) may exercise any of the following powers for the purpose, unless it is in the interest of justice for those powers to be exercised only at a trial: (

i) weighing the evidence; (ii) evaluating the credibility of a deponent; (iii) drawing any reasonable inference from the evidence. [ 56 ] The leading authority on

summary judgment applications is Hryniak v Mauldin, 2014 SCC 7 , [2014] 1 SCR 87 . Therein, the Court noted at paragraph 47 that “[s]ummary judgment motions must be granted whenever there is no genuine issue requiring a trial”. There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits.

At paragraph 49, the Court noted that a fair and just determination can be made when the process: (1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to the facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. [ 57 ] In the oft-cited case of Tchozewski v Lamontagne, 2014 SKQB 71 , 440 Sask R 34 , the Court provided a roadmap for

summary judgment: 30 The central question posed on a Rule 7-2 application, accordingly, is whether

summary judgment will achieve what Karakatsanis J. calls (at para. 28) the “principal goal”, and Popescul C.J.Q.B calls “the overarching consideration” (at para. 49, Pervez [2013 SKQB 377]): that is, a fair process that results in a just adjudication of the dispute before the court. The answer to this question calls for an analysis of the affidavit and other evidence presented and the issues raised by the application, in the context of the litigation as a whole. In Hyrniak , Karakatsanis J. breaks that analysis down into discrete steps and key principles — a “roadmap” — based on the various elements of the

summary judgment rules. In brief, the key elements of that roadmap, in the context of a Rule 7-2 application, are as follows: 1. The court must first decide if there appears to be a genuine issue requiring a trial within the meaning of Rule 7-5(1)(a)), based solely on the evidence before the court, and without using the powers provided by Rule 7-5(2)(

b) to weigh the evidence, evaluate credibility and draw inferences. ( Hryniak , para. 66 ) 2. There will be no genuine issue requiring a trial if the judge is able to reach a fair and just determination on the merits based on the affidavit and other evidence. That will be so if the

summary judgment process: (

a) allows the judge to make the necessary findings of fact; (

b) allows the judge to apply the law to the facts; and (

c) is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial. ( Hryniak , para. 49 ) 3. The issue is not whether the

summary judgment process is as thorough or the evidence is as complete as at trial. It is whether the

judge is confident he or she can find the facts and apply the relevant legal principles so as to fairly resolve the dispute. If the judge has that confidence, proceeding to trial is generally not proportionate, timely or cost effective. A process that does not give the judge confidence in his or her conclusions, on the other hand, is never proportionate. ( Hryniak , paras. 50 and 57 ) 4. If there appears to be a genuine issue requiring a trial, the court should next determine if a trial can be avoided by using Rule 7- 5(2)(

b) powers to weigh evidence, evaluate credibility and draw inferences, and whether it is in the interests of justice that those powers be exercised only at trial. ( Hryniak , para. 56 ) 5. In deciding whether there is a genuine issue requiring trial, and whether it is in the interests of justice to use the powers provided by Rule 7-5(2)(

b) to avoid a trial, the court must consider the nature of the evidence and issues. It must also consider proportionality in the context of the litigation as a whole. The relevant factors may include, but are not limited to: (

a) the complexity of the claim; (

b) the amount at issue; (

c) the importance of the issues; (

d) the relative cost and speed of a

summary judgment application, as compared to trial; (

e) whether better evidence will be available at trial than on the application, and the nature and extent of the conflict in the evidence, including: i. whether there is competing evidence from multiple witnesses, the evaluation of which would benefit from cross-examination; ii. whether credibility determinations are at the heart of the issues to be determined; and iii. whether credibility determinations are made more difficult by the shortage of reliable documentary yardsticks. (

f) whether the court is able to fairly evaluate the evidence, including the extent to which it would assist the court to have evidence presented by way of a trial narrative, to hear and observe witnesses and to have the assistance of counsel in reviewing the facts and the law within the conventional trial process; (

g) whether

summary judgment would resolve all claims against all parties, or whether a trial will be necessary in any event, raising, among other things, the possibility of duplicative proceedings or inconsistent findings of fact; and (

h) whether the application could dispose of an important claim against a key party, thereby reducing cost and delay. (Rule 1- 3, Hryniak , supra , paras. 58, 60 and 66 , and Pervez , para. 48) 6. The court also has the discretion to permit a party to present oral evidence pursuant to Rule 7-5(3) if it would allow the court to reach a fair and just adjudication on the merits and is the proportionate course of action. ( Hryniak , para. 63 ) [ 58 ] Further, and importantly, as stated by Elson J. in McKercher v Stantec Architecture Ltd., 2019 SKQB 100 at para 26 , [2019] 11 WWR 707 ,

summary judgment applications “require each party to put its ‘best foot forward’, irrespective of their belief that a trial is necessary. Accordingly, both parties, particularly those who respond to the application, must confront the reality that this may well be their ‘only day in court’”. [ 59 ] In sum, the first step the Court must undertake when faced with an application for

summary judgment is to determine whether there is a genuine issue requiring a trial. The onus is on the applicant to demonstrate that. Once the onus has been met, the burden then shifts to the plaintiff to refute the evidence. If there appears to be a genuine issue requiring a trial, the Court must then determine whether the genuine issue can be resolved with resort to the powers in Rule 7-5 to avoid the need for a trial. 2. Is There a Genuine Issue Requiring a Trial? [ 60 ] As noted above, the first step in the analysis is to determine whether there is a genuine issue requiring a trial.

The onus is on the Defendants, as applicants, to establish there is no genuine issue. Once that burden is met, the onus then shifts to the plaintiff to establish there is a genuine issue requiring a trial. [ 61 ] The Defendants rely on s. 10(3) of The Police Act, 1990, SS 1990-91, c P-15.01 , and claim that it is a complete defence in the circumstances of this case.

Section 10(3) of The Police Act, 1990 , provides: 10(3) No action lies or shall be instituted against a member or a civilian member where the member or civilian member is acting pursuant to the authority of this Act, the regulations or an order made pursuant to this Act, or pursuant to any other Act,

an Act of the Parliament of Canada, the common law, a regulation or a bylaw, for any loss or damage suffered by any person by reason of anything in good faith done, caused, permitted or authorized to be done, attempted to be done or omitted to be done, by any of them, pursuant to or in the exercise or supposed exercise of any power conferred by this Act or the regulations, or any other Act,

an Act of the Parliament of Canada, the common law, a regulation or a bylaw, or in the carrying out or supposed carrying out of any order made or duty imposed pursuant to this Act or the regulations, or any other Act,

an Act of the Parliament of Canada, the common law, a regulation or a bylaw. [ 62 ] “Member” is defined in s. 2 (

k) of The Police Act, 1990 , as a member of a police service and, unless otherwise specifically provided, includes the chief of police, an officer, a non-commissioned officer, a constable and a special constable.

[63]

Section 10 of The Police Act, 1990, has been considered by Saskatchewan courts on numerous occasions.

Boththe Saskatchewan Court of King’s Bench and the Court of Appeal have held that, as long as the police officers involved in an incidentwere acting in the good faith exercise of their duties when the conduct giving rise to loss or damage occurs, s. 10 provides a completedefence to civil liability. [64] In Tataquason v Saskatoon (City) Board of Police Commissioners, 2017 SKQB 98, [2017] 10 WWR 793[Tataquason], Kalmakoff J. (as he then was), considered s. 10(3) of The Police Act, 1990, holding that it offers a complete defence to aclaim, even if the officers’ conduct was negligent.

The Court held: 31 Subsection 10(3) provides police officers with a complete defence to civil liability, as long as they are acting in the good faithexercise of their duties when the conduct giving rise to loss or damage occurs: Schuler v Bergen , 2010 SKQB 153, 355 Sask R 146[Schuler]. An immunity clause such as the one in ss. 10(3) protects police officers, even when their actions are negligent, as long as thoseactions are taken in good faith: Nelson v Saskatchewan, 2003 SKQB 265, 235 Sask R 250 [Nelson].

In fact, ss. 10(3) of the Police Actprovides immunity from civil liability for good faith actions of a police officer exercising his or her duties, even if those actions areunlawful, in the sense that they do not fall within the protection of s. 25 of the Criminal Code: Lang v Burch, (SKCA), [1983] 1 WWR 55 (Sask CA) (QL) [Lang]. 32 The question of whether a police officer has acted in good faith is primarily subjective.

It involves an examination of the state ofmind of the police officer, to determine whether, at the time of the impugned action, the officer held a bona fide belief in a state of factswhich, if true, would make his or her conduct lawful: Chaput v Romain, (SCC), [1955] SCR 834 ; Lang; Nelson at para105. Good faith does not mean absence of negligence; negligent conduct does not preclude the existence of good faith. Good faith is astate of mind. It is an absence of bad faith; an absence of mala fides: Wowk v Edmonton (Health Board), (AB KB),[1994] 7 WWR 78 (Alta QB).

Lack of malice is a sign of good faith: Schuler. [65] In Stewart v Keating, 2015 SKQB 108, 473 Sask R 108, Gabrielson J. (appeal dismissed in Stewart v Keating,2016 SKCA 59, 480 Sask R 13 [Stewart SKCA]), noted that a police officer is protected from liability if their actions were done in goodfaith.

Additionally, in Raghuraman v Macnab, 2016 SKQB 385 [Raghuraman], Gabrielson J. again noted that courts in Saskatchewanhave held that, in the absence of any evidence of bad faith, police officers are afforded protection under s. 10(3) of The Police Act, 1990. [66] Further, as noted by the Defendants in their brief of law, in Jardine v Saskatoon (City) Police Service, 2017SKQB 217 [Jardine], Barrington-Foote J. (as he then was), noted at paragraph 67 that the Court of Appeal confirmed in Stewart SKCAthat s. 10(3) “protects officers from civil actions unless they acted maliciously or with a lack of good faith”. [67] It is important to note that the question of whether the conduct of a police defendant was justified or lawful isnot relevant to the analysis of the applicability of s. 10(3) of The Police Act, 1990.

In Tataquason, citing Lang v Burch, (SK CA), [1983] 1 WWR 55 (Sask CA), the following was noted: 36 With the greatest of respect, I am unable to accede to this argument. In Lang, the Court of Appeal made it clear (at para. 31) that thequestions of whether an officer’s actions were lawful and/or justified within the meaning of s. 25 of the Criminal Code, and whether theofficer was acting in good faith are separate questions that are answered by applying different criteria, and the analysis of the two shouldnot be “fused”.

However, in Lang, the court did not say that a judge must address both questions, or that they must be addressed in aparticular order. The fact that the trial judge, in this case, chose to address only the “good faith” defence, and not s. 25 of the CriminalCode, does not necessarily lead to the conclusion that she determined that Cst. Lalonde’s actions were not justified under s. 25. 37 Moreover, in the circumstances of this case, even if the trial judge had concluded that Cst.

Lalonde’s actions were not lawfulunder s. 25 of the Criminal Code, it would have had no effect on the result with respect to his liability. The trial judge concluded thatCst. Lalonde acted in good faith and that, as a result, ss. 10(3) of the Police Act provided a complete defence. In Lang, the Court ofAppeal made it clear that the immunity provisions of the Police Act apply to good faith actions even where a police officer is unable torely on the protection of s. 25 of the Criminal Code.

The decision in Lang is still good law, and is binding on lower courts. [68] Section 10(3) has similarly been found to apply to insulate police chiefs from liability. In Munir v Saskatoon(City) Police Services Board, 2015 SKQB 250, 483 Sask R 264, Danyliuk J. considered the applicability of s. 10(3) to chiefs of police.Therein, he noted that there was no allegation within the statement of claim in that matter, that the chief of police was directly involvedin the matters set out in the claim. Instead, there was an allegation of “negligent supervision”.

Ultimately, he concluded that s. 10(3)insulated the chief of police from liability “as long as he is performing his duties in good faith”. [69] With the above noted principles in mind, the issue I must then determine is whether I can fairly and justlydetermine whether s. 10(3) applies to immunize the Defendants from liability in the present case. Other cases have found that this is adetermination that can be made through a

summary process (see, for example, Jardine, and Raghuraman). However, this determinationis invariably fact-specific. [70] In the present circumstances, there is no evidence that the Defendants acted in bad faith or with malice on theevening of October 8, 2008. Further, there is no evidence before me that provides any particulars of any actions that were allegedly takenin bad faith or that were malicious.

Instead, the affidavit evidence before me establishes that the Defendants were, at all times, acting ingood faith in the performance of their duties. [71] Specifically, the evidence establishes that on the evening in question, the Defendants (save for Troy Hagen)responded to a complaint that an individual, who turned out to be C.M., was armed with an axe walking in front of a residence. Whenofficers arrived, C.M. refused to obey commands and approached the responding officers. Officer Cory Longhurst deployed pepperspray twice, after C.M. did not respond to the first shot of pepper spray.

The evidence filed provides that C.M. continued to resist arrestafter being pepper sprayed. [72] Tragically, after officers gained physical control of C.M. with the use of restraints, they noticed that he wasunresponsive and there was blood on the sidewalk. EMS was immediately called; C.M. was placed in a recovery position and handcuffs

were removed. When Officers Tyler Bacon and Jason Gunderson observed that C.M. was in distress and could not detect a pulse, CPR was commenced and continued until EMS arrived on scene. [ 73 ] There is no doubt that C.M.’s death was a tragedy. However, the evidence before me establishes that there was no bad faith or malice on the part of the Defendants. Each of the Defendants, save for Troy Hagen, who did not provide an affidavit, swore in their affidavits that they did not know C.M. prior to the October 8, 2008 events.

Further, they were not involved in the investigation regarding the alleged sexual assault of C.M.’s daughter. When responding, the only information they had knowledge of was that C.M. was agitated and armed with a weapon. [ 74 ] Perhaps most importantly, all of the Defendants (save for Troy Hagen) provided evidence that during the incident in question, they were acting in their capacity as a police officer and were acting in good faith.

None of the Defendants observed anything that made them believe that any other Defendant had not acted in good faith. [ 75 ] In relation to the defendant, Troy Hagen, who was the Chief of the Regina Police Service at the time of the incident in question, there is no evidence of bad faith or malice. The plaintiff’s Claim alleges negligence. As noted above, s. 10(3) of The Police Act, 1990 , insulates members, which includes the chief of police, from liability for negligence. There is no evidence of bad faith or malice. [ 76 ] Based on the foregoing, I find that s. 10(3) of The Police Act, 1990 , applies.

There is no evidence that the Defendants were acting in bad faith or with malice. As such, there is no genuine issue requiring a trial. The plaintiff has not adduced any evidence, or in other words, she has not put her “best foot forward”, to rebut this determination. [ 77 ] Given this conclusion, it is unnecessary for me to consider whether the Defendants’ actions were negligent in the present circumstances. This is so because s. 10(3) provides a complete defence, even if the Defendants’ actions were negligent: Nelson v Saskatchewan , 2003 SKQB 265 , 235 Sask R 250 .

There is, thus, no genuine issue requiring a trial and the Defendants’ application for

summary judgment dismissing the Claim is granted. V. CONCLUSION [ 78 ] For the foregoing reasons, the plaintiff’s Claim is dismissed for want of prosecution pursuant to Rule 4-44 of The Queen’s Bench Rules . Further, and in the alternative, I grant the Defendants’ application for

summary judgment. The plaintiff’s Claim is summarily dismissed pursuant to Rules 7- 2 to 7-5. [ 79 ] The Defendants, as applicants, are entitled to their costs. C.J.K.B. M.D. POPESCUL