CURTIS ROSKE PLAINTIFF - v. –, 2023 SKKB 201

KING ’S BENCH FOR SASKATCHEWAN 2023 SKKB 201 Date: 2023 09 22 Docket: QBG-RG-02614-2019 Judicial Centre: Regina BETWEEN: CURTIS ROSKE PLAINTIFF - and – SAMUEL, SON & CO. LIMITED DEFENDANT Counsel: Deidre D. Brandt for the plaintiff Joshua Sadovnick for the defendant FIAT ROBERTSON J. September 22, 2023 INTRODUCTION [ 1 ] This decision addresses an application by the defendant, Samuel, Son & Co. Limited [Samuel], for dismissal of the action or, in the alternative, creation of a litigation plan for the next steps to be taken and costs of the application.

Samuel relies upon Rules 4-44 to 4-48 of The Queen’s Bench Rules. [ 2 ] For the reasons which follow, the application is dismissed with no award of costs. BACKGROUND [ 3 ] Samuel filed an affidavit of Emma Lisson sworn August 9, 2023 in support of its application. The defendant, Curtis Roske [Roske], filed an affidavit of Scott Mazinke sworn September 7, 2023 [Mazinke Affidavit].

From those affidavits and the court file, the following chronology is apparent. 2017 October 11 Samuel dismisses Roske without cause, providing 8 weeks working notice after 20 years employment 2019 October 1 Roske issues statement of claim seeking damages for pay in lieu of notice October 31 Samuel files statement of defence November 5 The Dispute Resolution Office of the Ministry of Justice writes to both counsel asking them to arrange for mandatory mediation (no response)

2021 February 12 Samuel files notice of change of representation (service accepted by Roske’s lawyer on January 29, 2021) – different lawyer, but same law firm June 25 Letter from Roske’s lawyer to Samuel’s lawyer with offer to settle and explaining Roske’s attempts to mitigate damages (no reply) 2023 August 9 Samuel files notice of application to strike claim for delay September 13 Application heard by Robertson J. with decision reserved ISSUES [ 4 ] Should the claim be dismissed for delay? ANALYSIS Timely Justice [ 5 ] The public interest is served by timely justice.

This goal is promoted by court through The Queen’s Bench Rules . Rule 1-3(1) states “The purpose of these rules is to provide a means by which claims can be justly resolved in or by a court process in a timely and cost effective way.” Rule 4-44 is just one of many Rules the purpose of which is to allow claims to proceed and be resolved in an efficient and timely manner to achieve both procedural and substantive justice.

The ultimate penalty for failure to comply with The Queen’s Bench Rules is to strike the claim or defence and summarily conclude the action. [ 6 ] The Supreme Court of Canada stated its concern with delay in the civil context in Hryniak v Mauldin , 2014 SCC 7 at paras 1-2 and 32 , [2014] 1 SCR 87 [ Hryniak ] : [1] … Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial.

Without an effective and accessible means of enforcing rights, the rule of law is threatened. Without public adjudication of civil cases, the development of the common law is stunted. [2] Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pretrial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case.

The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just. . . . [32] This culture shift requires judges to actively manage the legal process in line with the principle of proportionality. While

summary judgment motions can save time and resources, like most pre-trial procedures, they can also slow down the proceedings if used inappropriately. While judges can and should play a role in controlling such risks, counsel must, in accordance with the traditions of their profession, act in a way that facilitates rather than frustrates access to justice.

Lawyers should consider their client’s limited means and the nature of their case and fashion proportionate means to achieve a fair and just result. [ 7 ] The Saskatchewan Court of Appeal referred to a “problematic culture of complacency” in Taylor v Moose Jaw Downtown and Soccer/Fieldhouse Facilities Inc. (Mosaic Place) , 2021 SKCA 123 at para 68 [ Taylor ] : [68] At the end of the day and overall, the “reasons for delay” consideration suggests that Mr. Taylor’s claim should not be allowed to continue.

The conduct of this litigation, on both sides, has been a reflection of the problematic culture of complacency and delay that infects some corners of the litigation world. However, it was Mr. Taylor who had the basic obligation to move matters forward and, in the circumstances here, I see no reviewable error in the Chambers judge’s assessment of this issue. [ 8 ] Saskatchewan is fortunate in that timely justice is possible, provided both sides cooperate. Civil actions can realistically proceed through the stages of litigation from commencement of action to trial within two years.

Those stages may be summarized as: 1) exchange of pleadings; 2) mandatory mediation; 3) discovery through exchange of documents and questioning; 4) pre- trial conference; and 5) trial. There are also alternatives to trial, including application for

summary judgment and binding pre-trial conference. The Queen’s Bench Rules provide deadlines for steps through those stages to promote timeliness. [ 9 ] Both parties have a responsibility to move cases forward to resolution. Plaintiffs should not commence a claim and then sit on it. Nor should defendants delay proceedings through a failure to cooperate or obstructive tactics. If either party causes delay, the other party can obtain the assistance of the court, including through case conferences, case management, scheduling orders, award of costs or, as a last resort, striking of the claim or defence. Application to Strike under Rule 4-44(a) [ 10 ] Rule 4-44(

a) allows the court to dismiss any claim for undue 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 interestsof justice that the claim proceed; or (

b) make a procedural order or any other order provided for by these rules. [11] The leading authority on the

interpretation and application of Rule 4-44 is International Capital Corporation vRobinson Twigg & Ketilson, 2010 SKCA 48, 319 DLR (4th) 155 [ICC]. ICC was considered in Taylor, where at paras. 16-18, RichardsJ.A. (as he then was) for the Court of Appeal reviewed the framework for analysis of an application to strike a claim for want ofprosecution: B. The framework of analysis [16] Rule 4-44 speaks to the dismissal of a claim for want of prosecution. It says this: 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. [17] The leading case in this area is ICC. There, the Court laid out the following framework for analyzing an application to strike a claimfor want of prosecution: [43] The first step, as set out in Carey v. Twohig, [(1973) (SK KB), 37 DLR (3d) 718] is an inquiry about whether thedefendant has established that the delay in moving a case ahead has been inordinate.

This will involve considering the time the plaintiffhas taken to get the litigation to the point where the application to strike is brought and comparing that lapse of time to what mighttypically be expected in a case of similar complexity. This is necessarily a matter of informed judgment grounded in the overallexperience 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 atdetermining whether it is excusable.

This inquiry will entail consideration of the nature of the claim, the diligence with which the claimhas been pressed by the plaintiff, and the specific reasons offered as to why the matter has not moved more quickly. A wide variety offactors 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 tohave been both inordinate and inexcusable, it should not consider the issue of “serious prejudice” as a discreet question.

Rather, it shouldmove directly to the issue of whether it is in the interests of justice that the case proceed to trial notwithstanding the delay and shouldconsider the issue of prejudice in that context. In dealing with this third and final part of the analysis, the court should have regard to allof the relevant circumstances … [18] In dealing with the third step of the test, ICC said that a court should have resort to all of the relevant considerations including: (a)the prejudice the defendant will suffer in mounting its case if the matter goes to trial; (

b) the length of the inexcusable delay; (

c) the stageof the litigation; (

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

e) the context in which the delay occurred; (

f) the reasonsoffered for the delay; (

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

h) the public interest. Was the delay inordinate? [12] Over three years have passed since service of the statement of claim. A statement of defence was promptlyserved and filed. Since then, little has transpired. [13] It appears that neither party responded to or acted upon the Dispute Resolution Office’s correspondence askingthem to

schedule mandatory mediation required under s. 42 of The Queen’s Bench Act, 1998, SS 1998, c. Q1.01 (repealed and replacedeffective May 17, 2023 by The King’s Bench Act, SS 2023, c 28, s 7-1). So this action has not even proceeded to the mandatorymediation required at the close of pleading. [14] Roske concedes that this delay is inordinate. (Roske brief of law at para. 10). I agree.

Was the delay inexcusable? [15] Roske argues that the inordinate delay is excusable because: of the COVID-19 pandemic; inaction by Samuel’slawyer; and the reasonable reliance of Roske on his lawyer, who accepts primary responsibility for failing to move the file forward. [16] Samuel argues that the role of counsel is not properly considered on this question, but rather in the next step ofthe analysis, citing Czerwonka v Rural Municipality of Montmartre No. 126, 2018 SKQB 202, 37 CPC (8th) 106, a decision ofBarrington-Foote J. (as he then was) at para. 18: [18] The plaintiff also relied on the role of counsel to excuse his inordinate delay.

In my view, the role of counsel should be considerednot at this stage, but in the interests of justice analysis. As Richards J.A. noted in ICC: 28 …In assessing the merit of this argument, it is important to note the stage of the analysis at which regard is normally had for thedegree to which the plaintiff's counsel, as opposed to the plaintiff proper, is responsible for the delay.

The cases in this area traditionallytake such matters into account only at the final step of the approach required by Carey v Twohig [(1973), (SK KB), 37DLR (3d) 718 (Sask QB)], i.e. the authorities consider counsel's personal role in creating the delay only after the delay has been shownto be both inordinate and inexcusable and the defendant has established that he or she will likely suffer serious prejudice at trial because

of the delay. See, for example: Humboldt Flour Mills Co. v Ewen [(1984), (SK CA), 36 Sask R 81 (CA)], at para. 4.… [17] I will therefore address the effect of the pandemic and the role of counsel in the next step. [18] I find that most of the delay is inexcusable. Should the action be allowed to proceed? [19] The Court of Appeal in ICC set out several non-exhaustive factors to consider in deciding whether to allow anaction to proceed: (

a) prejudice to the other party if it proceeds; (

b) length of the inexcusable delay; (

c) stage of the litigation; (

d) impact of the inexcusable delay on the other party; (

e) context in which the delay occurred; (

f) reasons offered for the delay; (

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

h) the public interest. [20] I will consider each of these factors below. (

a) Prejudice to the other party if action proceeds [21] Samuel does not identify any specific prejudice, but notes the comment in ICC at para 45(

a) that “a court caninfer that the passage of time will typically have at least some effect on the memories of witnesses.” While true, this action is not likely toturn on resolution of controverted evidence. [22] The usual issues on a wrongful dismissal claim where cause is not alleged are: 1) whether the notice wasadequate; and, if not, 2) whether the damages should be reduced for failure to mitigate. Such claims are often suitable for

summaryjudgment. In Bardal v Globe & Mail Ltd., (1960) (ON SC), 24 DLR (2d) 140 (Ont H Ct), the Ontario High Courtidentified four factors to determine proper notice: 1) character of employment; 2) length of employment; 3) age of employee; and 4)availability of similar employment. This analysis is now well-accepted. [23] This factor weighs against dismissing the claim. (

b) Length of the inexcusable delay [24] Almost four years have passed since service of the claim. That is a significant period of time. [25] This factor weighs in favour of dismissing the claim. (

c) Stage of the litigation [26] In ICC at para 45(c), Richards J.A. (as he then was) wrote: “In general terms, a court should be less inclined tostrike an action which is well advanced than one which is in its early stages.” This litigation has not progressed beyond pleadings, soremains at the first stage.

The next step would be mandatory mediation followed by discovery through exchange of documents andquestioning, pre-trial settlement conference and finally trial. [27] Samuel, in its brief of law at para. 30, states that “Even if the matter proceeded to trial as quickly as possible, itwould likely be another several years before a trial could commence.” I disagree. If counsel cooperate, as they should, a dispute such asthis one can be brought to trial within two years in Saskatchewan. But, as discussed above, there are alternatives to trial that would likelybe appropriate and, if utilized, would speed resolution.

The Supreme Court referred to these alternatives in Hryniak at para 24: [24] However, undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution ofdisputes. The full trial has become largely illusory because, except where government funding is available, ordinary Canadians cannotafford to access the adjudication of civil disputes.

The cost and delay associated with the traditional process means that, as counsel forthe intervener the Advocates’ Society (in Bruno Appliance [Bruno Appliance and Furniture, Inc. v Hryniak, 2014 SCC 8, [2014] 1 SCR126]) stated at the hearing of this appeal, the trial process denies ordinary people the opportunity to have adjudication.

And while goingto trial has long been seen as a last resort, other dispute resolution mechanisms such as mediation and settlement are more likely toproduce fair and just results when adjudication remains a realistic alternative. [Footnotes omitted] [28] This factor weighs in favour of dismissing the claim. (

d) Impact of the inexcusable delay on the other party

[ 29 ] If the claim is dismissed for delay, Roske is denied his day in court through no fault of his own. Access to justice through the court is denied. That is a significant adverse impact. [ 30 ] If the claim proceeds, there is no change for Samuel. The potential liability remains. [ 31 ] This factor weighs against dismissing the claim. (

e) Context in which the delay occurred [ 32 ] Samuel, in its brief of law at para. 39 quotes only the first sentence from ICC at para 45 (e). The full paragraph must be read to understand the Court of Appeal’s point, so is reproduced below: (

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. [ 33 ] This point is also stated by Elson J. in Gelinas v Saskatchewan Crop Insurance Corporation , 2017 SKQB 270 , 72 CCLI (5 th ) 114 , at paras 49-50 [ Gelinas ] : 5.

The context in which the delay occurred [49] This factor calls on the court to assess the overall context in which the application to dismiss arises. Within this context, particular attention is given to the conduct of the defendant.

In this consideration, the following questions are appropriate: 1) Have there been repeated requests to move the action along? 2) Has the defendant previously brought failed applications to strike, or threatened to make such an application? 3) Alternatively, does the context suggest that the defendant was content to let the file sit in abeyance? [50] 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.

Alternatively, where a defendant “lies in the weeds” only to bring an application with little or no forewarning, that fact may weigh against the defendant’s application. [ 34 ] As discussed above, Samuel has been no more active than Roske in trying to move the action forward to resolution. As described in ICC at para 45 (e), this “defendant was content to let a file sit in abeyance” As Elson J. wrote in Gelinas , Samuel chose to “lies in the weeds”. [ 35 ] The first step employed by Samuel was this application to strike on the basis of delay.

McKee v Melfort (City), 2011 SKQB 462 also involved an application to strike a wrongful dismissal claim after a four year delay. Rothery J. at para. 13, referred to the defendant-applicant’s failure to give advance warning in her decision to dismiss that application: [13] Another factor to consider in determining whether the interests of justice favour the case proceeding to trial notwithstanding the delay is the context in which the delay occurred. There has not been any pressure by the defendant to move the case forward.

No advance warning was given before the defendant’s counsel applied to dismiss the claim. [ 36 ] Layh J. made the same point about defendant inaction in Zapshalla v Ram Manufacturing Ltd ., 2023 SKKB 155 at paras 47-49 , referring to Saskatoon Trading Company Limited v Hergott, Duval, Stack and Partners, 2013 SKCA 42 at para 38 , 362 DLR (4th) 67 . [ 37 ] While the charge of inaction against Roske is well-founded, it applies equally to Samuel.

The old adage of “pot calling the kettle black” comes to mind. [ 38 ] When one party fails to proceed in a timely manner, there are various and usually effective measures that opposing counsel may employ in a progressive manner. For example: calling counsel; writing counsel; serving appearance notices or notices of application for orders to compel compliance with timelines established by The Queen’s Bench Rules ; and applying under Rule 4-4 for a case conference or under Rule 4-5 for case management.

If these steps prove ineffective, they will then provide a persuasive record of prior efforts to support an application to strike. Here there is no such record. [ 39 ] This factor weighs against dismissing the claim. (

f) Reasons offered for the delay [ 40 ] The COVID-19 pandemic was an extraordinary event which caused millions of deaths and disrupted lives and business. But the justice system, including this Court, adapted and quickly resumed operation. Apart from jury trials, which were necessarily suspended, most court proceedings resumed, often with modifications, such as videoconferencing and telephone attendances. The same occurred with mediations.

This point was also made by Tochor J. in Kobialko v Saskpower, Knourek and Grid One Solutions , 2021 SKQB 324 at paras 44-46 , 78 CPC (8th) 435 and Layh J. in Wappel v Saskenergy Incorporated , 2022 SKKB 230 at paras 30-32 . [ 41 ] Further, while the virus was detected in late 2019 in China, the World Health Organization’s [WHO] declaration of a pandemic occurred on January 30, 2020. (WHO declared the pandemic over on May 5, 2023).

So the initial delay in arranging for mandatory mediation occurred prior to the pandemic and consequent change in business practices. [ 42 ] Even so, I accept that the pandemic would likely have caused some delay even if the parties had been diligent

about seeking to arrange mediation. [ 43 ] While this action has not moved beyond pleadings, the plaintiff did make an offer to settle in 2021. The defendant did not reply to that offer. [ 44 ] This factor weighs against dismissing the claim. (

g) Role of counsel in causing the delay [ 45 ] Roske’s lawyer, in the Mazinke Affidavit at para. 8, frankly and fairly accepts primary responsibility for the delay. 8. While Covid impeded some moving forward on this for a period, any other delay is entirely on me and not on my client. My client inquired from time to time about the state of this matter, but this was not moved forward as it should have been, after there was no response to our June 25, 2021, letter as it should have been. [ 46 ] While the plaintiff has the primary responsibility, the defendant also has some responsibility.

Both parties are expected to cooperate and remain responsible for moving actions forward to resolution. Their lawyers have a professional duty to do so. [ 47 ] In this case, it appears that Samuel did little to move the action forward. For example, Samuel’s lawyers did not respond to the Dispute Resolution Office, did not contact Roske’s lawyer about scheduling mediation, and did not respond to the 2021 offer to settle. Apart from the 2021 notice of change of representation from Samuel and the 2021 offer to settle from Roske, it appears neither lawyer attempted to contact the other.

That is not how lawyers should practice. Communication, especially with opposing counsel, is key to resolution of disputes. [ 48 ] This factor weighs against dismissing the claim. (

h) The public interest [ 49 ] This factor has limited application to this action. ICC at para 45 (

h) states “it could be expected to include cases of genuine public importance.” This is a private dispute. [ 50 ] This factor is neutral. Conclusion [ 51 ] Some of the factors reviewed above favour striking the claim while others oppose striking. Having regard to all of the elements of the ICC analysis, I conclude that the application to strike should be dismissed.

The action should be allowed to proceed with the warning that a different decision might result in the future if there is further delay. [ 52 ] While alternative relief was pled, neither party proposed a timetable, likely recognizing that the next step is mandatory mediation. I encourage the parties to cooperate to move this action forward to resolution. Costs [ 53 ] Rule 11-1 of The Queen’s Bench Rules provides guidance on the exercise of the court’s discretion to award costs.

Although Roske was successful in defending against the application, “the result of the proceeding” is only one of many factors listed under Rule 11-1(4). [ 54 ] Roske bore primary responsibility for proceeding with his action. His lawyer accepted responsibility for failing to do so in a timely manner. At the same time, Samuel did nothing to push for resolution until and except for bringing this application. [ 55 ] In these circumstances, I exercise my discretion to make no award of costs.

DECISION [ 56 ] The application is dismissed with no award of costs. [ 57 ] I thank counsel for the assistance they provided in their submissions. J. D.N. ROBERTSON