EDDY LARRY MOSIUK v. JOY PATRICIA SKRAPEK, 2023 SKKB 251

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 251 Date: 2023 11 27 Docket: QBG-YT-00117-2018 Judicial Centre : Yorkton BETWEEN: EDDY LARRY MOSIUK AND JOY PATRICIA SKRAPEK PLAINTIFFS - and - BRENT ALAN BLACK DEFENDANT Counsel: Russell M. Peet for the plaintiffs Adam T. Ailsby for the defendant DECISION LAYH J. NOVEMBER 27, 2023 The Issue [ 1 ] The issue in this application is whether the plaintiffs’ statement of claim should be struck under Rule 4-44(

a) of The King’s Bench Rule because of their delay in prosecuting the claim against the defendant. That Rule sets out three conditions that must be satisfied before the court will strike a pleading. The delay must be: 1) inordinate; 2) inexcusable; and 3) notwithstanding that the delay has been both inordinate and inexcusable, whether, in the interests of justice, the plaintiff’s claim should be allowed to proceed. The Legal Framework [ 2 ] Essentially two sources summarize and frame the required legal analysis: Rule e 4-44(

a) and the decision in International Capital Corp. v Robinson Twigg & Ketilson, 2010 SKCA 48 , 319 DLR (4 th ) 155 [ International Capital Corp. ]. [ 3 ] Rule 4-44(

a) reads as follows: 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; …

[4] International Capital Corp. animates the Rule’s directions. Respecting whether delay has been inordinate, thecourt, endorsing and quoting an earlier decision from the English Court of Appeal in Allen v Sir Alfred McAlpine & Sons Ltd., [1968] 1All ER 543 (Eng CA) at 561 [Allen], wrote: … In order for such an application [striking for delay] to succeed, the defendant must show: (

i) that there has been inordinate delay. It would be highly undesirable and indeed impossible to attempt to lay down a tariff – somany years or more on one side of the line and a lesser period on the other. What is or is not inordinate delay must depend on the facts ofeach particular case.

These vary infinitely from case to case, but it should not be too difficult to recognize inordinate delay when itoccurs. … [Emphasis added] [5] Respecting whether the delay has been inexcusable, the court continued its reliance upon Allen to describeinexcusable delay: In order for such an application to succeed, the defendant must show: … (ii) that this inordinate delay is inexcusable.

As a rule, until a credible excuse is made out, the natural inference would be that it isinexcusable. [Emphasis added] [6] And finally, Justice Richards (as he then was) in International Capital Corp. addressed the third issue:whether, in the interests of justice, the claim should proceed even though the delay is inordinate and inexcusable. The court providedeight non-exhaustive considerations: [45] The third step of the approach is where the refinement of the Carey v. Twohig [ (SK KB), [1973] 4 WWR 378(Sask QB)] approach arises. It is this.

If the court finds delay to have been both inordinate and inexcusable, it should not consider theissue of “serious prejudice” as a discreet question. Rather, it should move directly to the issue of whether it is in the interests of justicethat the case proceed to trial notwithstanding the delay and should consider the issue of prejudice in that context. In dealing with thisthird 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 importantconsideration. Relevant matters here would include failing memories on the part of witnesses, the disappearance or death of witnessesover the course of time and the loss or destruction of physical evidence. It will be to a defendant’s advantage to file affidavit materialdetailing the anticipated prejudice. However, a court can infer that the passage of time will typically have at least some effect on thememories of witnesses.

The more serious the prejudice a defendant will face at trial, the more likely it is that the interests of justice willtip 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 totrial will not be appropriate. An unjustifiable delay of a few months is something quite different than an unjustifiable delay of manyyears. (

c) The stage of the litigation – In general terms, a court should be less inclined to strike an action which is well advanced than onewhich 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 justshort of that mark. On the other hand, by way of illustration, an action which has never progressed beyond the pleadings stage, and inwhich 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 questionthe professional, business or personal reputation of the defendant, which put the livelihood of the defendant at risk or which involvesignificant or ongoing negative publicity for the defendant. In circumstances of those sorts, the court should be alert to the damage thatcan be caused by a plaintiff’s failure to proceed with reasonable dispatch and, at least in general terms, should be less inclined to tolerateinexcusable delay. (

e) The context in which the delay occurred – Defendants are generally understood to have no positive obligation to move litigationforward. Nonetheless, a court entertaining an application to strike for want of prosecution should note whether the inexcusable delaytook place in the face of pressure from the defendant to move the file ahead. Delay in the shadow of repeated requests from a defendantto get on with things is generally more serious than delay where the defendant has not pressed the plaintiff.

Similarly, if the plaintiffdelays unjustifiably in the wake of a failed motion to strike for want of prosecution, such delay would typically be more serious than ifthe 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 wascontent 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 thereasons 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 suitwhere 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)], at para. 4. This is a legitimate consideration when assessing the justice of allowing

litigation to continue after inexcusable delay. Depending on the circumstances, there might well be a measure of unfairness in visiting the consequences of a lawyer’s lack of diligence on his or her client. However, this consideration should not be overstated or given undue weight. The reason for this is straightforward. Plaintiffs select and instruct their counsel.

If a litigant engages a lawyer and the lawyer then fails to move matters forward expeditiously, the litigant should bear the burden of his or her choice of counsel and should not expect to have that burden shifted wholly to a defendant who played no role in retaining or instructing the lawyer. This is perhaps particularly so in the case of sophisticated clients familiar with the ins and outs of litigation. Care must be taken to ensure that plaintiffs’ lawyers are not allowed to defeat applications to strike for want of prosecution by the simple expedient of assuming the blame for 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 carefully before granting an order to strike for want of prosecution. It is not possible to describe this class of matters with great particularity but, in broad terms, it could be expected to include cases of genuine public importance. Normally, they will have implications and significance reaching beyond the specific interests of the litigants themselves. This is not to say that a different set of rules applies to such cases.

It is merely an acknowledgment that, in some limited circumstances, the larger public interest can properly be put on the scales when balancing the pros and cons of striking a claim. [46] This list of factors is not necessarily exhaustive of the matters which might properly be taken into account when deciding whether litigation characterized by inordinate and inexcusable delay on the part of a plaintiff should be struck for want of prosecution.

Depending on the case, there might be other matters which also warrant consideration. [47] I would underline as well that the assessment of the relevant factors cannot be a mechanical exercise. The likely prejudice suffered by a defendant if a matter goes to trial is always a significant factor but the relative weights and importance of the other considerations might be expected to vary from case to case. No single consideration represents a prerequisite for striking a claim.

All of the factors should be weighed collectively in a fashion which is sensitive to the on-the-ground realities of litigation and with the aim of achieving a result which is just. [ 7 ] The three-point analysis set out in International Capital Corp. frames the question whether the plaintiffs’ action in this instance should be struck. Analysis Has the Delay Been Inordinate? [ 8 ] What length of delay is inordinate leans toward a mathematical calculation while what delay is inexcusable leans toward credible and plausible reasons offered to explain the delay.

The first determination requires a timeline, the second requires the party against whom the application has been brought to offer excuses for the delay. [ 9 ] Necessarily, the court must appreciate the timeline of the plaintiffs’ prosecution of its claim. In this application, a

summary of the proceedings has unfolded as follows: 1. Spring 2016: The plaintiffs, Eddy Mosiuk and Joy Skrapek, a married couple who farm in the Kamsack, Saskatchewan area, hired the defendant, Brent Black, to seed 2,500 acres of their farmland into canola, peas and wheat. 2. June 6, 2018 : The plaintiffs, represented by Russell Peet, issued their statement of claim on June 6, 2018, alleging that Mr. Black had sown the canola seed too deeply resulting in a $388,203.51 loss. 3. July 17, 2018 : Mr.

Black’s legal counsel, Adam Ailsby, requested the courtesy of not being noted in default of defence and made an informal request for particulars to allow Mr. Black sufficient evidence to be able to prepare a statement of defence. 4. July 18, 2018 : Mr. Peet agreed to not note the matter in default and stated that he would provide a response to the request for particulars. 5. June 10, 2019 : Having received no reply, Mr. Ailsby emailed Mr. Peet asking for a response to the particulars. Mr.

Ailsby’s email reads as follows: Approximately 11 months ago, we corresponded with you on the above captioned matter seeking information from you/your client in order to evaluate the claims being made… We recently were made aware that you are to be taking an extended leave at the start of July for approximately 6 months. Prior to your hiatus, we would ask that you provide the requested information so that we are in a position over the next seven months to evaluate the situation and discuss it with you upon your return to practice in 2020.

Alternatively, if the matter is not one that the Plaintiffs are wishing to pursue, please advise as such and we will consent to a Discontinuance of Action on a without costs basis. [Affidavit of Adam Ailsby sworn August 20, 2020, Exhibit “C”] 6. January 9, 2020 : Having still received no response from Mr. Peet to the request for particulars, Mr. Ailsby again emailed Mr. Peet asking for a response to eight specific inquiries to clarify the plaintiffs’ claim. 7. March 12, 2020 : Mr. Ailsby emailed to Mr.

Peet another request for particulars, asking, “Can you provide an expected timeframe for when we expect to be hearing back from you with respect to the below questions?” [Affidavit of Adam Ailsby sworn August 20, 2020, Exhibit “F”] 8. March 12, 2020 : Mr. Peet responded to Mr. Ailsby’s email stating, “I have been in contact with Mr. Mosiuk and have been anticipating meeting with him to finalize a reply to you [ sic ] detailed letter of inquiry.” [Affidavit of Adam Ailsby sworn August 20,

2020, Exhibit “F”] 9. March 12, 2020 : Mr. Ailsby responded the same day, stating: Thank you for your reply. While it is good to hear that you anticipate meeting with your client, there does not seem to be an anticipated timeframe provided. Can you provide an expected timeframe for when we expect to be hearing back from you with respect to the below questions? [Affidavit of Adam Ailsby sworn August 20, 2020, Exhibit “G”] 10. May 5, 2020 : Mr. Ailsby sent formal correspondence to Mr.

Peet, writing, in part: Since July 17, 2018 we have been trying to obtain further particulars, information and details of the above captioned claim. Despite our repeated requests and follow ups, no further information has been forthcoming for close to two years. As such, please find enclosed for service upon you a formal Request for Particulars. [Affidavit of Adam Ailsby sworn August 20, 2020, Exhibit “H”] 11. May 21, 2020 : Having received no reply, Mr. Ailsby emailed Mr. Peet informing him that he was “outside of the timeframe for providing a response to the Request for Particulars.” Mr.

Ailsby stated he had received instructions to formally compel a response, writing: Due to my work load, I likely won’t be able to prepare the material for this type of application until the end of the month. This email is a heads up courtesy to you on the hopes that we receive a response to the Request for Particulars before I start to prepare the application material next week. [Affidavit of Adam Ailsby sworn August 20, 2020, Exhibit “I”] 12. June 2, 2020 : Mr. Ailsby received a telephone call from Mr. Peet’s office stating that Mr. Peet was out of the office for a short term medical condition. 13.

June 26, 2020 : By email, Mr. Ailsby inquired of Mr. Peet’s office, asking if Mr. Peet had returned to the office and whether another lawyer might have taken over the claim. 14. July 9, 2020 : Mr. Peet left a telephone message to Mr. Ailsby. In part, Mr. Peet stated that Mr. Mosiuk was going to attend his office the following Monday. Mr. Peet stated that he expected to be sending Mr. Ailsby “something that will get this moving along on Monday after Mr. Mosiuk has made his appointment.” [Affidavit of Adam Ailsby sworn August 20, 2020, Exhibit “L”] 15. August 11, 2020 : Having received no response, Mr.

Ailsby emailed Mr. Peet, stating, in part: It has now been roughly a month. If we do not receive a response…by the end of this week…we will be applying for an order requiring a response within seven days or having the claim struck out. Given the nature of your repeated delays (separate and apart from your medical hiatus) … we will be seeking significant costs as part of the application. [Affidavit of Adam Ailsby sworn August 20, 2020, Exhibit “M”] 16. August 20, 2020 : Mr. Ailsby served Mr.

Peet with a notice of application, returnable September 8, 2020, to compel the plaintiffs to reply to the request for particulars. 17. September 8, 2020 : The parties, through legal counsel, consented to an order requiring the plaintiffs to reply to the request for particulars within 14 days and providing $500 in costs in favour of the defendant. 18. September 22, 2020 : Mr. Peet provided a reply to request for particulars. 19. July 29, 2021 : Mr. Ailsby emailed Mr. Peet asking when his client might be available to attend mediation. 20. August 5, 2021 : Mr.

Peet responded stating he would canvas his clients’ availability to attend mediation. 21. September 16, 2021 : Having received no reply from Mr. Peet, Mr. Ailsby emailed Mr. Peet stating “To follow up on our email from seven weeks ago, please provide dates in the coming few months that you and your clients would be available for the required mandatory mediation.” [Affidavit of Adam Ailsby sworn February 23, 2022, Exhibit “S”] 22. September 16, 2021 : Mr.

Peet responded stating, “I have spoken to the Plaintiffs and they assure me they will provide dates available to the [ sic ] for Mediation as soon as their current harvest obligations are completed.” [Affidavit of Adam Ailsby sworn February 23, 2022, Exhibit “T”] 23. November 10, 2021 : Having received no reply, Mr. Ailsby emailed Mr. Peet asking if he could provide dates for mediation in February and March. He continued: The ongoing delays in this matter, which was commenced in early June of 2018, are getting to the point of ridiculousness.

It seems obvious that your clients have no desire to move this matter forward. …Mr. Black is willing to allow the Plaintiffs to discontinue the

claim on a without costs basis. Otherwise, it would seem that we are destined for further delays and an eventual application to strike for delay, at which point the idea of a discontinuance on a without costs basis will be off the table. [Affidavit of Adam Ailsby sworn February 23, 2022, Exhibit “U”] 24. December 9, 2021 : Having received no reply to his previous emails, Mr. Ailsby emailed Mr. Peet, stating the plaintiffs should have completed their harvest obligations. Mr. Ailsby repeated Mr.

Black’s willingness to allow the plaintiffs to discontinue the action without costs and concluded, “This will be the last follow up. If we do not receive dates, we will be making an application to strike the claim for delay.” [Affidavit of Adam Ailsby sworn February 23, 2022, Exhibit “V”] 25. December 10, 2021 : Mr. Peet emailed Mr. Ailsby stating that Mr. Ailsby’s email of the previous day would “be of assistance in bringing the consequences of his [Mr. Mosiuk’s] further delay home to him.” Mr.

Peet concluded, “I hope to reply to you further to fix the date for the mediation.” [Affidavit of Adam Ailsby sworn February 23, 2022, Exhibit “W”] 26. March 5, 2022 : Mr. Black’s application to have the plaintiffs’ claim struck came before Justice Clackson. 27. April 4, 2022 : Justice Clackson found the plaintiffs’ delay to be inordinate and inexcusable but determined that, in the interests of justice, particularly Mr. Mosiuk’s statement that he was “ready, indeed anxious, to move forward,” the claim would not be struck. 28. May 13, 2022 : Mr. Ailsby emailed Mr. Peet, again asking for dates for mediation.

The impatience in Mr. Ailsby’s email is (understandably) obvious. He wrote: It would seem that notwithstanding the representations made by you to the court on March 29 (and adopted into the decision of Clackson J.) about your clients’ eagerness to get going with mediation, we have had radio silence from you and your clients for over a month. Not surprisingly, it falls on the defendant and my office to, yet again, follow up with you to try to push this matter forward.

As such, please provide options for available dates in June and July that you and your clients would be available for the mandatory mediation via video conference that your clients are so eager to move forward with. [Affidavit of Adam Ailsby sworn October 12, 2023, Exhibit “A”] 29. June 28, 2022 : Having received no reply to his email of May 13, 2022, Mr. Ailsby again emailed Mr. Peet asking for dates in late July, August and September to attend mediation. 30. August 2, 2022 : Having received no reply to his email of June 28, 2022, Mr. Ailsby again emailed Mr.

Peet asking for dates in the last week of August or in September and October to attend mediation. 31. August 8, 2022 : Mr. Peet emailed Mr. Ailsby stating that his clients were “indeed anxious to proceed to mediation,” suggesting certain dates in August or September. [Affidavit of Adam Ailsby sworn October 12, 2023, Exhibit “D”] 32. August 8, 2022 : Mr. Ailsby replied to Mr. Peet’s email, stating that mediation could proceed September 28, 2022 and asking that Mr. Peet respond. 33. September 7, 2022 : Mr. Ailsby emailed the Dispute Resolution Office. He explained that Mr. Peet was supposed to arrange to

schedule mediation on September 28, 2022. Anticipating that Mr. Peet had not arranged mediation, Mr. Ailsby wrote: … As I have not heard from your office, I will assume that Peet Law Firm has yet to reach out and so we are taking it upon ourselves to do so. … Does the DRO have availability for a mediator for this matter to conduct a mediation at that time by video conference (WebEx)? [Affidavit of Adam Ailsby sworn October 12, 2023, Exhibit “F”] 34. September 8, 2022 : The Dispute Resolution Office, in a joint letter to Mr. Ailsby and Mr.

Peet, confirmed that mediation was arranged for September 28, 2022 by video conferencing. 35. September 28, 2022: Mediation occurred but no settlement was reached. 36. October 5, 2022 : Following mediation, Mr. Ailsby corresponded with Mr. Peet offering comments about the lack of merits of the plaintiffs’ lawsuit. He also sought the plaintiffs’ production of documents, respecting which, he wrote “much of which was initially requested in July of 2018.” Mr. Ailsby’s correspondence was accompanied by a formal offer of settlement (not included in Mr. Ailsby’s affidavit).

He asked for a response to the offer or production of documents. [Affidavit of Adam Ailsby sworn October 12, 2023, Exhibit “H”] 37. October 6, 2022 : Mr. Peet responded, stating he would “endeavour to get a reply to this information and proposal from Mr. Mosiuk ASAP.” [Affidavit of Adam Ailsby sworn October 12, 2023, Exhibit “I”] 38. December 15, 2022 : Mr. Ailsby emailed Mr.

Peet stating, “It has been more than 11 weeks since the mediation and we continue to wait for the requested material and response from your clients (which was to be provided ASAP).” He concluded, asking for a “realistic timeframe” to expect document production.

[Affidavit of Adam Ailsby sworn October 12, 2023, Exhibit “J”] 39. January 16, 2023 : Having received no reply, Mr. Ailsby emailed Mr. Peet, as follows: It has been more than 15 weeks since the mediation and we continue to wait for the requested material and response from your clients … I would expect the holiday season has given you and your clients time to consider the situation and come back with a renewed willingness to get this matter resolved in a timely way. [Affidavit of Adam Ailsby sworn October 12, 2023, Exhibit “K”] Again, Mr.

Ailsby asks for a “realistic timeframe” within which document production could be expected. 40. January 17, 2023 : Mr. Peet responded by email stating Mr. Mosiuk had to cancel an appointment because of health issues but that he had rebooked an appointment and expected to respond in one week. 41. October 13, 2023 : Having received no response, Mr. Ailsby, in a notice of application returnable October 31, 2023 (served by registered mail upon Mr. Peet’s office) sought an order striking the plaintiffs’ statement of claim for want of prosecution. 42. October 31, 2023 : The application came before Justice Megaw.

His fiat is self-explanatory. He wrote: This matter is adjourned to November 14/23 at 1:30 pm The reason for the adjournment is that Mr. Peet has both not responded to the application on behalf of this [ sic ] client and when two attempts were made to contact him by telephone the court went to message manager on both attempts. In addition to that Mr. Ailsby has indicated that he has had no contact from Mr. Peet with respect to this application.

The Court is always concerned that an application may have inadvertently fallen off the desk so to speak of counsel opposite and accordingly with the kind, professional courtesy extended by Mr. Ailsby the matter will be adjourned to November 14/23 to provide Mr. Peet a further opportunity to respond. Justice Megaw directed the Local Registrar to email, fax and post by ordinary mail his fiat. He also directed Mr. Ailsby to send Mr. Peet a letter by regular mail to advise Mr. Peet what happened and to tell Mr. Peet of the adjourned date. Justice Megaw ordered costs of $1,500.00 against the plaintiffs. 43.

November 14, 2023 : The defendant’s application came before me. Mr. Mosiuk attended court in person. Mr. Ailsby and Mr. Peet attended by telephone. At the hearing, Mr. Peet stated that neither he nor his staff were in the office on Tuesday, October 31, 2023, when the court telephoned. Although his office received the registered mail, the notice of application was unattended. Mr. Peet stated he had received correspondence from Mr. Ailsby together with a copy of Justice Megaw’s fiat. On November 10, 2023, Mr. Ailsby emailed Mr. Peet, inquiring when costs would be paid. Mr. Peet stated he had not responded to Mr.

Ailsby until November 13, 2023. Mr. Ailsby explained that Mr. Peet had previously told him that his office would not accept service by email or facsimile, which is why Mr. Ailsby served the notice of application and supporting documents by registered mail. [ 10 ] Because of an unusual circumstance, I need not delve too deeply into the question whether the plaintiffs’ delay has been inordinate or inexcusable, at least considering the plaintiffs’ prosecution of their claim as of March 2022.

The character of delay to that time has already been determined by this Court because this application is the defendant’s second attempt to have the statement of claim struck. In an application heard over one and one-half years ago, Justice Clackson denied the defendant’s application, but not without making findings that continue to stand.

After summarizing the proceedings taken to the day of the application before him – March 29, 2022 – Justice Clackson made the following findings: Is there inordinate delay? [25] In assessing the delay, the plaintiffs’ progress in advancing their claim to its current stage is measured against the progress typically to be expected in cases of similar complexity, See ICC at para 43. [26] The plaintiffs’ claim is a garden variety, uncomplicated yield loss claim.

Ascertaining the cause and quantum of the plaintiffs’ losses was very likely discovered in the same year the contract was performed: 2016. [27] The action was commenced almost four years ago. Pleadings closed 18 months ago and no steps have been taken by the plaintiffs to advance their claim since that date. [28] I am satisfied that the delay in this case is inordinate. [ 11 ] The plaintiffs have done little since Justice Clackson’s fiat. The delay continues to be inordinate. Can the Plaintiffs’ Delay be Excused? [ 12 ] Again, Justice Clackson made clear finding whether the plaintiffs’ delay was excusable.

He wrote in his fiat: Is the delay excusable? [29] “This inquiry will entail consideration of the nature of the claim, the diligence with which the claim has been pressed by the plaintiff, and the specific reasons offered as to why the matter has not moved more quickly.” See ICC at para 44. [30] At the outset of this claim the defendant held out the possibility of avoiding litigation altogether if the plaintiffs were prepared to share the details of their claim.

It can reasonably be inferred that as a consequence of this overture the plaintiffs believed the defendant was content to let the claim sit until the defendant had a better picture of it. The communications between counsel between July of 2018,

when the claim was filed, and May of 2020, when the defendant delivered his first ultimatum, indicate that this state of affairs continued throughout 2018, 2019, and the first few months of 2020. [31] In May of 2020, the defendant’s tone changed. At this point it would have been apparent to the plaintiffs that the defendant’s request for additional information had now taken on some urgency.

As a result of that change in tone the plaintiffs eventually consented to an order compelling a reply to the request for particulars and delivered those particulars on September 22, 2020, which precipitated the defendant’s statement of defence on October 8, 2020. [32] The plaintiffs’ explanation for their delay in moving the claim forward after the statement of defence was filed centres around the existence of the COVID pandemic and the uncertainty it caused concerning public gatherings and for Mr.

Mosiuk’s health. [33] While such circumstances provide some explanation for the plaintiffs’ delay I find that on their own they are an insufficient basis upon which to excuse the plaintiffs’ delay. The repeated waves of COVID infections necessitated public health orders that disrupted normal patterns of life but did not shut down the court system. Mandatory mediations continued to occur throughout the period of delay both by way of telephone and video conference, neither of which exposed participants to possible infection. [34] The defendant filed his statement of defence on October 8, 2020.

I find the plaintiffs’ explanation for failing to take any steps in the proceedings since that date to be insufficient to excuse the delay. [ 13 ] Nothing that the plaintiffs have done since Justice Clackson’s fiat has moved the dial respecting the question of excusable delay. Indeed, the plaintiffs’ conduct since that fiat has shown a remarkable disregard for the looming danger of the precise application that they now face.

Their delay continues to be astonishingly inexcusable – and for several reasons. [ 14 ] First, they have breached their own intention provided in court before Justice Clackson prompting him to specifically write: “Mr. Mosiuk now says he is ready, indeed anxious, to move forward.” [ 15 ] Second, since Justice Clackson’s fiat, one sees a continuation of conduct that characterized the plaintiffs’ conduct prior to March 2022. Again, it is Mr. Ailsby’s repeated promptings that show any interest in moving the matter forward.

The plaintiffs’ slight indications of participating never come to fruition. [ 16 ] Third, even given the two weeks from October 31, 2023 when Justice Megaw wrote his fiat, to the hearing before me on November 14, 2023, one would have expected the plaintiffs to have immediately made heroic efforts to provide documents requested as early as July 2018, over five years ago. Instead, the court learned that Mr. Peet only communicated with Mr. Ailsby the day before the hearing.

One would also have expected that the plaintiffs would have immediately paid the costs that Justice Megaw ordered to be paid “forthwith and in any event of the cause…as a result of the Plaintiffs’ non-appearance today.” [ 17 ] The plaintiffs’ delay continues to be inexcusable – indeed, more inexcusable – than it was before Justice Clackson 18 months ago. Should the Claim be Allowed Notwithstanding the Delay is Inordinate and Inexcusable? [ 18 ] The eight factors set out in International Capital Corp. are not exhaustive and will apply more or less depending on the circumstances of each case.

Justice Clackson saved the plaintiffs’ action in his fiat because, having considered the eight factors, he found that justice would prevail if he allowed the claim. Before me now, I have evidence respecting another 18 months of delay and further occasion to reconsider whether the interests of justice lie in the plaintiffs’ favour. [ 19 ] Prejudice caused by the inexcusable delay : Defending an action such as the one before the court – the alleged failure of canola to grow – can never improve with delay.

One need only review the plaintiffs’ claim and the defendant’s defence to realize that several factually important issues are engaged in this litigation: whether the plaintiffs directed the depth that the defendant was to sow the canola, environmental factors, use of unregistered and untreated canola seed, soil conditions, uncontrollable climatic conditions, and the plaintiffs’ agricultural practices.

The passage of time since the alleged loss, now over seven years ago, makes evidence-gathering of historical data and records difficult and challenging. [ 20 ] The inexcusable delay has prejudiced the defendant. [ 21 ] Length of inexcusable delay : Although Justice Clackson found that the 18 months of delay was not “egregious,” he measured delay from the close of pleadings, namely the defendant’s statement of defence in 2020. However, as early as July 2018 the defendant asked for particulars of the claim so that he could mount an informed defence.

The record recited above will show the defendant’s repeated efforts to gain those particulars, which eventually culminated in an order four years later.

In my view, the plaintiffs are solely responsible for this four-year delay between the issuance of the claim and the defendant’s defence and should be considered as part of delay. [ 22 ] Indeed, in Marion v English River Limited Partnership No. 1, 2019 SKQB 2 and in Crescent Point Resources Partnership v Husky Oil Operations Limited, 2020 SKQB 128 , 61 CPC (8th) 393 , the court also considered the lapse of time between the occurrence of the injury and issuance of the statement of claim.

Waiting until the eve of the expiry of the limitation period – as the defendants did in this instance – is a relevant consideration in determining the length of inordinate delay. [ 23 ] Stage of litigation : The closer proceedings have advanced to being set down for trial, the less likely is the court to strike proceedings. In this instance, nothing further than close of pleadings and mediation have happened. The plaintiffs have invested little in moving this matter to trial. Documents have not been exchanged, questioning has not begun, and no pre-trial conference has been set.

Striking the plaintiffs’ claim wastes little of their time or expense. [ 24 ] Impact of the inexcusable delay on the defendant : I agree with the defendant’s concern that as a farmer in the business of providing custom services, the ongoing and unresolved allegations have a negative impact on his reputation, especially in a

small rural community. [ 25 ] Context of the inexcusable delay : As Justice Richards stated in International Capital Corp. , “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.” (para. 45(e)). In this application we have precisely the circumstances that Justice Richards addressed: a previous application to strike has failed and, nonetheless, the plaintiffs have persisted in unjustifiably delaying.

And, on the other hand, Justice Richards cautioned against allowing a complacent defendant to “let a file sit in abeyance.” That conduct, he said, “would weigh in favour of letting a claim proceed.” (para. 45(e)). Clearly, in this instance the defendant has been habitually the party pressing the action forward.

The interests of justice do not favour continuing the claim under this consideration. [ 26 ] Reasons for delay : As I canvased when determining that the plaintiffs’ delay is inexcusable, the plaintiffs have not offered plausible reasons for delay. [ 27 ] Role of counsel : Justice Clackson addressed this matter and found no evidence to suggest that the plaintiffs’ counsel lacked diligence in the litigation. Indeed, to the contrary, Justice Clackson found that Mr.

Mosiuk acknowledged in his affidavit that his counsel was exhorting him to move forward with the action. [ 28 ] Public interest : As the defendant admits, this case does not have grandiose precedential relevance and does not touch on any unique or particularly complex legal issues. However, the public’s interest is always engaged in having another person’s interests adjudicated in a timely way. To some extent, everyone’s interest is affected if the court, while finding delay to be inordinate and not excused, permits a claim to languish without any apparent reason.

Judicial resources have been twice used to determine a matter that, reasonably, should not have come before the court. Conclusion [ 29 ] For the reasons described above, I find that the plaintiffs’ delay has been inordinate and inexcusable and cannot be saved by consideration of circumstances that would allow the claim to proceed because the interests of justice would intervene. [ 30 ] The defendant has asked for solicitor client costs. I decline to order such costs. Instead, I order costs in the amount of $4,000 to be paid within 30 days. J. D.H. LAYH