TED DUPMEIER APPLICANT - v. -, 2022 SKKB 252

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 252 Date: 2022 11 23 Docket: QBG-SC-00038-2021 Judicial Centre : Swift Current BETWEEN: TED DUPMEIER APPLICANT - and - SASKATCHEWAN VETERINARY MEDICAL ASSOCIATION RESPONDENT Counsel: E. Scott Hopley and Andrea J. Johnston for the applicant Neil W. McPhee for the respondent JUDGMENT KEENE J. NOVEMBER 23, 2022 I. INTRODUCTION [ 1 ] This court file started out with an originating application brought by the applicant, Ted Dupmeier [Dr.

Dupmeier], appealing the decision of the Discipline Committee of the respondent, Saskatchewan Veterinary Medical Association [SVMA], issued February 22, 2021. The original return date for the appeal was set for June 22, 2021. This application was subsequently adjourned from time to time by consent and while this (and other applications) were set for chambers on November 8, 2022, all of the non-argued applications stand adjourned sine die pending my decision on a couple of applications. The argued applications are: 1. An application brought by SVMA pursuant to Rule 4-44(

a) of The Queen’s Bench Rules asking this Court to dismiss Dr. Dupmeier’s appeal for unreasonable delay/want of prosecution, or in the alternative, that this Court lift the stay imposed under s. 29 of The Veterinarians Act, 1987, SS 1986-87-88, c V-5.1 [ Act ] on the appealed decision; and 2. SVMA also brought a notice of objection regarding parts of Dr. Dupmeier’s affidavit sworn November 1, 2022. [ 2 ] There have been a number of applications brought by both parties since the first filing by Dr. Dupmeier of his originating application of appeal on March 23, 2021. Unfortunately I will have to sacrifice brevity to set out the many court filings, since SVMA’s Rule 4-44(

a) application requires some context. The following is my attempt to set out the court filings chronologically: 1) March 23, 2021 – Dr. Dupmeier filed his originating application appealing the Discipline Committee’s decision returnable June 22, 2021. No affidavit material was filed by either party. The appeal was adjourned by consent several times to ultimately December 21, 2021;

2) December 20, 2021 – Dr. Dupmeier filed another application returnable December 21, 2021, requesting an order allowing for cross-examination of Mr. Vanstone on Mr. Vanstone’s affidavit sworn December 17, 2021; 3) December 21, 2021 – Dr. Dupmeier brought an application returnable December 21, 2021 requesting that Lakefield Law LLP [Lakefield] be directed to withdraw as counsel for SVMA. Dr. Dupmeier filed his affidavit sworn December 6, 2021 in support; 4) December 21, 2021 – SVMA brought an application returnable December 21, 2021 requesting certain parts of Dr. Dupmeier’s December 6, 2021 affidavit be struck.

SVMA filed an affidavit of Mark R. Vanstone sworn December 17, 2021 in support of this application on December 17, 2021; 5) December 21, 2021 – SVMA filed an affidavit of Dr. A. Choquer sworn December 20, 2021 seemingly in response to the application brought by Dr. Dupmeier to disallow Lakefield from continuing to act for SVMA and in reply to Dr. Dupmeier’s affidavit of December 6, 2021. This was the same day all matters were to be heard in chambers; 6) December 21, 2021 – the court ordered all matters to be adjourned to January 25, 2022; 7) January 7, 2022 – Dr.

Dupmeier filed another application returnable on January 25, 2022, requesting cross-examination of Dr. A. Choquer on his affidavit sworn December 20, 2021; 8) January 24, 2022 – Dr. Dupmeier filed an amended originating application; 9) January 25, 2022 – all matters were adjourned by the court to January 28, 2022, being a special chambers date; 10) January 28, 2022 – the court heard argument on the singular application brought by SVMA to strike portions of Dr. Dupmeier’s December 6, 2021 affidavit.

The court ordered that “the other applications will proceed in due course after a decision is rendered on the striking application”. The court also ordered “after the decision on the striking motion has been provided, counsel in consultation with the local registrar shall set up a special hearing date for the continuation of the matter” (flyleaf endorsement). Since this was my fiat, I might as well tell the parties what my expectations were.

They were that both counsel would jointly and with a sense of professional collegiality contact the local registrar to set up another special hearing date with myself; 11) February 4, 2022 – I provided my fiat regarding SVMA’s application to strike portions of Dr. Dupmeier’s December 6, 2021 affidavit. This resulted in Exhibit G of that affidavit being removed from the court file. Correspondingly the court ordered that Dr. Choquer’s affidavit be removed from the court file; 12) October 27, 2022 – SVMA filed another application returnable November 8, 2022 requesting that Dr.

Dupmeier’s appeal be struck for delay pursuant to Rule 4-44(

a) of The Queen’s Bench Rules or in the alternative that the stay be lifted. SVMA filed in support an affidavit of Greg Parks sworn on October 25, 2022; 13) November 1, 2022 – Ms. Johnston, lawyer for Dr. Dupmeier, sent a letter to the local registrar requesting that the application to cross-examine Mr. Vanstone be placed before the court for chambers on November 8, 2022 along with a new application to allow Dr. Dupmeier to adduce fresh evidence in the form of his affidavit sworn November 1, 2022. It appears that Dr. Dupmeier’s November 1, 2022 affidavit was to serve at least three purposes:

i) to answer SVMA’s Rule 4-44(

a) application; ii) to support Dr. Dupmeier’s application to cross-examine Mr. Vanstone; iii) to support Dr. Dupmeier’s most recent application to adduce fresh evidence ( i.e. being his affidavit sworn November 1, 2022) regarding his appeal against the Discipline Committee’s decision. 14) November 3, 2022 – SVMA filed a notice of objection asking for the striking of parts of Dr. Dupmeier’s November 1, 2022 affidavit. [ 3 ] I have done my best to catalogue all of this, leaving out several without notice applications.

I did this to show that this was a pretty active case up to February 4, 2022 and then it started up again in October 2022. The parties agreed during chambers that it made sense for the court to only consider the notice of objection to Dr. Dupmeier’s November 1, 2022 affidavit and SVMA’s application under Rule 4-44(

a) to strike the appeal or in the alternative, to lift the stay. In the event the Rule 4-44(

a) application was unsuccessful, then I was invited to provide some directions as to what the next steps should be ( i.e. Rule 4-44(b)). II. NOTICE OF OBJECTION TO PARTS OF THE NOVEMBER 1, 2022 DR. DUPMEIER AFFIDAVIT [ 4 ] SVMA objects to paras. 2 through 13 of Dr. Dupmeier’s November 1, 2022 affidavit on the basis of a lack of relevancy and hearsay. [ 5 ] At first blush, the impugned paragraphs do not seem to assist the court in regards to the Rule 4-44(

a) application. The passages seem more relevant to the issue of the fresh evidence application that is not presently before the court. However to answer the question: paras. 2-13 do showcase an unusual event; the alleged direct contacting of a party by one of the decision makers. Dr. Dupmeier argues that this points to the complexity of the relationship between the parties. The court is reluctant to strike these passages for that reason. These passages therefore provide some contextual background that washes over the Rule 4-44(

a) application. I also see no harm in preserving the paragraphs at this time. The paragraphs really do not tip the Rule 4-44(

a) application one way or the next but are of some assistance to the court for context. To round this out, I find that the impugned paragraphs do not offend the rule against hearsay and are not offensive on that ground. As indicated there is some relevancy. [ 6 ] Accordingly the notice of objection is dismissed without costs.

III. SVMA’S RULE 4-44(

a) APPLICATION

i) The affidavit evidence [ 7 ] Greg Parks’ affidavit sworn October 25, 2022 was filed by SVMA in support of the application to strike the appeal. The deponent briefly reprises the findings of the Discipline Committee (para. 2) setting out the Discipline Committee’s finding of guilt and noting a fine of $10,000 was levied along with an order for Dr. Dupmeier to pay $75,000 in costs. A copy of the decision is attached to Mr. Parks’ affidavit. Mr. Parks then refers to the court’s January 28, 2022 fiat. Mr. Parks deposes that nothing more happened. He attaches an email dated August 22, 2022 (Exhibit

A) to his affidavit in which SVMA’s lawyer, Mr. Stooshinoff, inquires of Ms. Johnston (lawyer for Dr. Dupmeier) about the appeal. [ 8 ] Mr. Parks avers that inflation is eroding the “value of the monetary award to the SVMA” (para. 5). This apparently would be the time from February 2022 to present. This is the only representation made as to prejudice. As an aside, this is a curious approach since no “award” was made. A fine was levied (which is not in my view an “award” any more than a fine for a speeding ticket would be an “award” to the Crown).

Costs might be considered an “award” but in any event no authority was offered to the court during argument to bolster this contention that inflation in this context can be prejudicial to a party. I appreciate that prejudice has a limited role, found usually under the “interests of justice” consideration in one of the three tests governing a Rule 4-44(

a) application ( Saskatchewan Government Insurance v Bear , 2017 SKQB 276 at para 42 , 14 CPC (8 th ) 171 [ Bear ]). I mention this here because it appears to be raised in Mr. Parks’ affidavit. [ 9 ] Dr. Dupmeier filed his affidavit sworn November 1, 2022 that has seemingly more than one purpose in these proceedings. In this instance, it is used by Dr. Dupmeier to resist the application to strike his appeal. If the court ignores paras. 2-13 and only considers the balance of the affidavit; then the result can be summarized as follows:

a) Mr. Parks failed to refer to Ms. Johnston’s email of September 22, 2022 sent in reply to Mr. Stooshinoff’s email of August 22, 2022. In that reply email, Ms. Johnston advises Mr. Stooshinoff that indeed she continues to represent Dr. Dupmeier and Dr. Dupmeier still intends to “move this matter forward”. Ms. Johnston goes on to write “I expect to have materials to you in the coming weeks regarding this matter” (Dr. Dupmeier affidavit sworn November 1, 2022, Exhibit A).

b) Dr. Dupmeier confirmed that he will be continuing with his appeal and that he has not abandoned his appeal (para. 16).

c) Dr. Dupmeier deposes: 17. In addition to this Originating Application, I have also commenced and am pursuing a civil action against the owners of the veterinary clinic involved in the allegations against me by the Respondent and the lawyer initially selected by the owners of this clinic to represent me in the disciplinary hearing which led to the decision which is the subject of the Originating Application. One of the counts of professional misconduct arose from my following my former lawyer’s legal advice not to answer questions posed by the Professional Conduct Committee.

The Statement of Claim through which I commenced this civil action is attached to this Affidavit as Exhibit “B”. On the civil action, I have attended mandatory mediation, provided my document disclosure, received affidavits of documents from the defendants, with documents from all defendants being received by mid April 2022. Currently, my lawyers are trying to arrange for questioning to take place in late December 2022. The circumstances of the Originating Application and those of the civil action are interwoven and I intend to continue to pursue both of these proceedings. (Affidavit of Dr.

Dupmeier sworn November 1, 2022)

d) Dr. Dupmeier confirms that he will be proceeding with his application for cross-examination of Mr. Vanstone in conjunction with his application to remove Lakefield (para. 20). ii) Rule 4-44 of The Queen’s Bench Rules [ 10 ] Rule 4-44 states: 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. [ 11 ] Rule 4-44(

a) is the codification of Richards J.A.’s (as he then was) direction in International Capital Corporation v Robinson Twigg & Ketilson , 2010 SKCA 48 at para 7 , 350 Sask R 160 [ ICC ]. I will organize my analysis under the wording of the rule. Is Dr. Dupmeier guilty of inordinate delay? [ 12 ] I find that Dr. Dupmeier is not guilty of inordinate delay. These are my reasons. [ 13 ] I have set out the court filings in this case. It should be obvious to a reader of this decision that this matter

started off with a statutory right of appeal which has leavened into a number of applications. [14] Having made that observation, I will now turn to Justice Richards’ directions found in ICC: [43] The first step, as set out in Carey v. Twohig [ (SK KB), [1973] 4 WWR 378 (Sask QB)], is an inquiry aboutwhether the defendant has established that the delay in moving a case ahead has been inordinate.

This will involve considering the timethe plaintiff has taken to get the litigation to the point where the application to strike is brought and comparing that lapse of time to whatmight typically 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. [15] It appears that SVMA’s bone of contention is that counsel were told by myself on January 28, 2022 to contactthe local registrar to get on with things but Dr. Dupmeier did not. As it turns out, neither did SVMA.

I acknowledge that the plaintiff orappellant bears the obligation of moving the case along (Harding v Harding, 2013 SKQB 78 at para 29, 413 Sask R 305). I alsoacknowledge Mr. Stooshinoff’s email of August 22, 2022. However, Ms. Johnston did reply and her response suggests imminent action.However, beyond all of this, I return to the crucial question: does the passage of time from February 4, 2022 to essentially September 22,2022, when Ms.

Johnston confirmed things would be moving along, constitute an “inordinate delay”? [16] I have reviewed a number of cases to see if a delay of some eight months in what now appears to be a ratherbusy piece of litigation has ever been found to be inordinate. I have not been able to find any cases that support this tight time frame.

Thecases measure delay in years, usually in excess of three years (see Rafuse v Rafuse, 2014 SKCA 12, 433 Sask R 124; LNY Holdings Ltd.v Royal Bank of Canada, 2012 SKQB 107, 392 Sask R 140 [LNY Holdings]; McLeod v Fyson, 2014 SKQB 87, 440 Sask R 286; McKee vMelfort (City), 2011 SKQB 462 and Bartlett v Carefree Park Corp., 2020 SKQB 315). [17] This case pales in comparison when considering the length of time alone. However, SVMA relies on the natureof this particular litigation. Counsel for SVMA argues that this is really a simple appeal, and ergo there has been an inordinate delay.

Irespectfully disagree. [18] Firstly, the sheer number of interlocutory applications suggest both parties view this as needing a lot of spadework to tackle the appeal application. I find that in considering all of this, the time lapse of some eight months is not unusual ordisproportionate to the complexity. [19] Counsel for SVMA remonstrates that another way to look at this is to import into the discussion a considerationof time limitations to commence actions (i.e. The Limitations Act, SS 2004, c L-16.1) or the 30 day appeal period under the Act.

I agreethat sometimes courts have used that approach as a benchmark. However this argument, with respect, is not applicable here. The delay,and I use that word advisably, is less than a year. Equally SVMA’s attempt to moor this application to the 30 day appeal period under theAct seems unreasonable. I am not persuaded that because the appeal was brought by way of originating application, that somehow thisredefines inordinate delay. There is no basis for that argument in this application. [20] Finally, I note that Dr.

Dupmeier has deposed (see para. 9 above) that he has issued a related statement of claimand that has been an ongoing process. I appreciate that SVMA views this as irrelevant to the speed at which Dr. Dupmeier’s appealshould proceed. However, I am not in agreement. I note that sometimes a responding party to this type of application offers upunsuccessfully the distraction of other court actions as an excuse under the inexcusable delay test (Czerwonka v Rural Municipality of Montmartre No. 126, 2018 SKQB 202 at para 20, 37 CPC (8th) 106 [Czerwonka]).

However, under the circumstances of this case, I seethis averment as adding credence to the complexity argument under the inordinate delay discussion. [21] Accordingly, I do not find Dr. Dupmeier guilty of causing inordinate delay and dismiss this Rule 4-44(a)application on that basis. However, in the event I am in error in this conclusion, I will press on with a review of the other two tests set outin Rule 4-44(a). Inexcusable Delay [22] Justice Richards in ICC stated: [44] The second step in the analysis, again as per Carey v.

Twohig [ (SK KB), [1973] 4 WWR 378 (Sask QB)]itself, is an examination of the reasons for the delay aimed at determining whether it is excusable. This inquiry will entail considerationof the nature of the claim, the diligence with which the claim has been pressed by the plaintiff, and the specific reasons offered as to whythe matter has not moved more quickly. A wide variety of factors might be expected to factor into this assessment. [23] Dr.

Dupmeier bears the onus of convincing the court that the facts and circumstances support a conclusion thatthe delay was excusable (Bear at para 29). [24] If there has been a delay that can be placed solely at Dr. Dupmeier’s feet (and to be clear; I maintain my findingthat any “delay” is not under these circumstances “inordinate”) then in my opinion Dr. Dupmeier has a reasonable explanation. [25] Firstly, I look at para. 17 of his November 1, 2022 affidavit set out above in para. 9 of this decision.

Thispassage sets out the considerable work that has been done and continues to be done on a closely related court action. As I have noted,decisions such as Czerwonka do not put much stock in a respondent’s worriment about other litigation. However, I see a difference here.Dr. Dupmeier has been and continues to fight a war on two fronts and I am satisfied this is a good enough excuse for the relatively briefhiatus in this court action. I also note Ms. Johnston’s correspondence sent to Mr. Stooshinoff stating things were about to heat up again(see para. 9 above). [26] The second so-called “excuse” comes from Mr.

Hopley during his oral presentation on November 8, 2022. Thiswas not in an affidavit but Mr. Hopley is a respected member of the Bar and I accept his statement that his firm has been short handedsince one of the senior members has left the firm. I appreciate that this is not SVMA’s problem but nevertheless serves to explain to a

degree the pause in the action. I understand that is no longer the situation with Dr. Dupmeier now having the legal representation of two senior lawyers. The court is also aware that a quick email (or even better, a good old fashion telephone call) by Dr. Dupmeier’s lawyers earlier on may have averted all this controversy. [ 27 ] In the end, I find that Dr. Dupmeier has provided this Court with a reasonable explanation of any “delay” if any such delay can be seen to be inordinate. Accordingly, the application will also be dismissed under this heading.

However, in the event I continue to be in error, I will lumber onto the final phase. Interest of Justice [ 28 ] Justice Scherman in LNY Holdings stated: [11] Having found both inordinate and inexcusable delay, the issue then becomes whether I should, based upon the third step of the analysis directed in International Capital Corp. , exercise my discretion so as to permit this claim to proceed. The question or test, as expressed by Richards J.A. at paragraph 41, is whether it is in the interests of justice that the claim proceed to trial notwithstanding the inordinate and inexcusable delay.

As I understand this formulation, once inordinate and inexcusable delay is found, the interests of justice in the case proceeding to trial must outweigh the momentum to dismiss created by the inordinate and inexcusable delay. To put it another way, there is a burden on the plaintiff to establish the interests of justice call for the case to proceed to trial notwithstanding inexcusable delay. [ 29 ] Justice Richards in ICC provided a non-exhaustive list of factors to consider under this third step: [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 – As indicated, this is an important consideration. 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. It will be to a defendant’s advantage to file affidavit material detailing the anticipated prejudice. However, a court can infer that the passage of time will typically have at least some effect on the memories of witnesses.

The more serious the prejudice a defendant will face at trial, the more likely it is that the interests of justice will tip in favour of striking the claim in question. (

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, by way of illustration, 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. In circumstances of those sorts, the court should be alert to the damage that can be caused by a plaintiff’s failure to proceed with reasonable dispatch and, at least in general terms, should be less inclined to tolerate inexcusable delay. (

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. (

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 aplaintiff of the chance of recovering damages in circumstances where the plaintiff himself or herself is blameless in relation to the delayand his or her lawyer is fully responsible for it. See: Carey v. Twohig, supra, at p. 388; Humboldt Flour Mills Co. Ltd. v. Ewen,supra, [(1984), (SK CA), 36 Sask R 81 (CA)] at para. 4. This is a legitimate consideration when assessing the justiceof allowing litigation to continue after inexcusable delay.

Depending on the circumstances, there might well be a measure of unfairnessin visiting the consequences of a lawyer’s lack of diligence on his or her client. However, this consideration should not be overstated orgiven undue weight. The reason for this is straightforward. Plaintiffs select and instruct their counsel. If a litigant engages a lawyer andthe lawyer then fails to move matters forward expeditiously, the litigant should bear the burden of his or her choice of counsel andshould not expect to have that burden shifted wholly to a defendant who played no role in retaining or instructing the lawyer.

This isperhaps particularly so in the case of sophisticated clients familiar with the ins and outs of litigation. Care must be taken to ensure thatplaintiffs’ lawyers are not allowed to defeat applications to strike for want of prosecution by the simple expedient of assuming the blamefor not moving the file forward. (

h) The public interest – There may be a narrow category of actions in relation to which a court should think especially carefullybefore granting an order to strike for want of prosecution. It is not possible to describe this class of matters with great particularity but, inbroad terms, it could be expected to include cases of genuine public importance. Normally, they will have implications and significancereaching beyond the specific interests of the litigants themselves. This is not to say that a different set of rules applies to such cases.

It ismerely an acknowledgment that, in some limited circumstances, the larger public interest can properly be put on the scales whenbalancing the pros and cons of striking a claim. [30] I will now go through Justice Richards’ eight factors.

a) The prejudice the respondent will suffer in mounting its case if the appeal is heard [31] As I have mentioned above (para. 8), while prejudice is a consideration, it is neither the primary nor even anecessary factor. I find that the respondent has not established a basis for prejudice (i.e. inflation). I do not see any prejudice arising fromFebruary 2022 to the autumn of this year. Therefore, this is not a factor favouring dismissal. (

b) The length of the inexcusable delay [32] This is rather awkward since I do not believe there have been “an inexcusable delay”. In any event I find that (asset out above), this was a relatively short “delay” of less than a year. This fact militates against striking Dr. Dupmeier’s appeal. (

c) The stage of the litigation [33] This is an appeal and not a civil lawsuit which is usually the focus of a Rule 4-44(

a) application. If I was tocharacterize the “stage” of this litigation, I would say things were busy up to February 2022. A lot of applications have been left danglingover the last months but now seem ready to roll. In that respect I find matters are relatively advanced. This finding favours dismissal ofthis application under Rule 4-44(a). (

d) The impact of the inexcusable delay [34] This factor is explained in Saskatchewan Crop Insurance Corporation v McVeigh, 2018 SKCA 76, 428 DLR (4th) 122: [110] ICC does not require proof that the litigation has caused a deleterious effect on a defendant. Rather, ICC instructs judges to besensitive and alert to the damage that can be caused by a plaintiff’s failure to proceed with reasonable dispatch because of thelitigation.

ICC does not mandate the need for absolute proof of any collateral damage or harm the defendants may have endured by thecommencement of litigation. (Emphasis in original) [35] It is apparent SVMA would like to get on with the appeal describing all of this as a simple appeal. However, Ido not see this factor as having much of an impact. (

e) The context in which the delay occurred [36] I appreciate that Dr. Dupmeier started all of this by his appeal and bears the onus to move ahead. Ms. Johnstonin her email to Mr. Stooshinoff confirmed that she has instructions to continue with the appeal. The genesis of this application is found inmy January 28, 2022 fiat where I told “counsel” (and in that sense I intended to use the plural of the word and not just Dr. Dupmeier’slawyer) to set up a further conference call. I note Mr. Stooshinoff did inquire of Ms.

Johnston as to where things were at in August 2022.She replied but it appears neither party thought of simply contacting the local registrar to set up a conference call with me. In my viewthat would have been the easiest way of getting on with things. In any event I am not persuaded that this factor tips the balance one wayor the next.

(

f) The reasons offered for the delay [ 37 ] I have discussed this above. In this context I can reiterate that I found Dr. Dupmeier’s reasons good enough. (

g) The role of counsel in causing the delay [ 38 ] I have discussed this above. I am not prepared to place blame. (

h) The public interest [ 39 ] The contest between Dr. Dupmeier and SVMA (while in the context of a self-regulating profession) is not in the “public interest”. This is not a factor. Conclusion on Interest of Justice [ 40 ] This third leg is a fail safe to consider if the overall weight of my findings tip the scales in favour of preserving the action; otherwise I must strike the action ( Harding v Harding , 2014 SKCA 74 at para 17 , 442 Sask R 8). Overwhelmingly my findings tip the scales in favour of preserving the appeal. Accordingly, under this last phase, I find I must dismiss SVMA’s application under Rule 4-44(a). Conclusion on Rule 4-44(

a) application [ 41 ] I have found under all three headings that this application must be dismissed. I so order. Should the stay be lifted? [ 42 ] I am not persuaded that the statutorily prescribed stay should be lifted by this Court under s. 29 of the Act . [ 43 ] It seems that SVMA has grown frustrated, arguing that when everything is boiled out; this is a simple appeal. Unfortunately the case has not developed in that way. This is one of the reasons I laboriously set out the court record to remind the parties as to what has been going on here.

This sometimes is the nature of litigation and in my opinion is not a good reason here to override the statutorily prescribed stay. Additionally I do not think that any alleged inflationary pressure on the fine and costs should win the day. Finally Dr. Dupmeier has a statutory right to appeal. If the stay is lifted, he apparently will have to pay $85,000 right away; if Dr. Dupmeier does not do this, he will not be allowed to practice veterinary medicine. I am satisfied those consequences outweigh SVMA’s desire to have the stay lifted. Therefore, I will not make such an order. IV. CONCLUSION ON THE RULE 4-44(

a) APPLICATION AND COSTS [ 44 ] This application is dismissed. The request of SVMA to have the stay lifted under the Act is also dismissed. Dr. Dupmeier has been successful in defending these applications. However, Mr. Hopley while expressing confidence in his client’s position stated pacifically that neither party should receive costs. I agree. Accordingly I shall exercise my discretion and not make a costs order. V. RULE 4-44(b) [ 45 ] The parties want the court to provide some direction as to next steps. I am pleased to do this.

I will have the local registrar contact the parties to set up a telephone conference call to discuss these next steps. Hopefully the parties will have a meaningful discussion before the conference call to assist the court with an agreeable approach. J. T.J. KEEN E