JOANN ZAPSHALLA PLAINTIFF - v. -, 2023 SKKB 155

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 155 Date: 2023 07 20 Docket: QBG-YT-00129-2018 Judicial Centre : Yorkton BETWEEN: JOANN ZAPSHALLA PLAINTIFF - and - RAM MANUFACTURING LTD. AND HONEYWELL LIMITED DEFENDANTS Counsel: Wayne M. Rusnak, K.C. for the plaintiff Sarah Wingerak for Ram Manufacturing Ltd. Mark T. Persick for Honeywell Limited FIAT LAYH J. JULY 20, 2023 Introduction [ 1 ] Ram Manufacturing Ltd. [Ram] and its co-defendant, Honeywell Limited [Honeywell] seek an order to strike Joann Zapshalla’s claim for want of prosecution.

All parties agree that the defendants will be successful if the court finds that Ms. Zapshalla’s delay has been inordinate, inexcusable, and the interests of justice do not favour continuation of her claim. The Legal Framework [ 2 ] Appropriately citing International Capital Corporation v Robinson Twigg & Ketilson, 2010 SKCA 48 , 319 DLR (4 th ) 155 [ ICC ] as the test in such applications, Ram has correctly stated in its brief of law, the three questions the court must ask: 1. Is Ms. Zapshalla’s delay in advancing her claim inordinate?

This test essentially looks at the lapse of time between service of the statement of claim to the defendants’ application to strike the action and will consider a range of time appropriate for advancing the specific type of claim. In this instance, delay is four years and eight months. 2. If the delay is inordinate, is Ms. Zapshalla’s delay excusable? This inquiry engages a consideration of the nature of the claim, the plaintiff’s effort to press the claim forward, and reasons why the litigation has not moved more quickly ( ICC at para 44 ).

3. Do the interests of justice militate in favour of the claim proceeding despite Ms. Zapshalla’s inordinate and inexcusable delay? ICC sets out eight factors the court should consider when determining whether the interests of justice necessitate that a claim be allowed to continue, notwithstanding that delay has been inordinate and inexcusable. [ 3 ] Rule 4-44 of The Queen’s Bench Rules codifies the court’s jurisdiction to strike claims for want of prosecution: Application to deal with delay 4-44 If delay occurs in an action, on application the Court may: (

a) dismiss all or any part of a claim if the Court is satisfied that the delay is inordinate and inexcusable and that it is not in the interests of justice that the claim proceed; or (

b) make a procedural order or any other order provided for by these rules. The Facts in Brief [ 4 ] In 2012 Ms. Zapshalla and her husband purchased a lift, which was installed in their home. Honeywell designed and manufactured the lift’s door locking mechanism. To use the lift, the operator pushed the call button until the lift reached the floor of the call. The lift door remained locked until the lift reaches the floor. When it does, the door unlocks. [ 5 ] Ms.

Zapshalla alleges she was injured on July 26, 2016 when she pushed the call button on the main floor of the residence, intending to go to the second floor. After pushing the call button, the lift door became unlocked. She opened the door and stepped into the lift space. However, the lift was not present, and she fell to the basement floor. [ 6 ] Ms. Zapshalla issued a statement of claim on June 19, 2018, approximately one month before the expiration of the limitation period. [ 7 ] Ram served its statement of defence on January 19, 2019, seven months after the statement of claim was served.

Honeywell served its statement of defence on May 6, 2020, 22 months after the statement of claim was served. [ 8 ] The parties proceeded to the Dispute Resolution Office on July 15, 2020. [ 9 ] No further court filings were made until Ram’s notice of application seeking to strike Ms. Zapshalla’s statement of claim was filed on April 10, 2023 with a return date of April 25, 2023. The application was adjourned by consent to June 20, 2023. In the interval, Honeywell, served its notice of application seeking the same remedy against Ms. Zapshalla.

The matter was heard on June 20, 2023. [ 10 ] The progress of the litigation after the unsuccessful mediation (July 15, 2020) until service of the notice of application (April 6, 2023) is characterized slightly differently by Ms. Zapshalla and each of the defendants (as detailed later in this fiat). Affidavits have come before the court from Chantelle Eisner and Sarah Wingerak (lawyers for Ram), Mark Persick (lawyer for Honeywell) and from Ms. Zapshalla. Has Ms. Zapshalla’s Delay Been Inordinate? [ 11 ] Is Ms.

Zapshalla’s delay of approximately four years and eight months inordinate? [ 12 ] Case law has informed what type of delay is “inordinate,” what type of delay is “inexcusable,” and when the “interests of justice” will save a delay that is otherwise both inordinate and inexcusable. [ 13 ] The three-steps in the analysis set out in ICC are not completely discrete. Certain case law suggests that the first step – the length of delay – is primarily a matter of counting years or months between the service of the statement of claim and the defendant’s application to strike.

However, the court has also looked to the complexity of the action: a simple action with few facts to prove, and principles of law well established, should proceed more rapidly than a complex action. [ 14 ] A straightforward mathematical comparison of Ms. Zapshalla’s delay to other instances of delay militates in favour of dismissing her action.

So, too, on its face, is the nature of her claim, which alleges a single cause of action – negligence – and seeks damages for personal injury. [ 15 ] Ram cites Rafuse v Rafuse, 2011 SKQB 184 , 374 Sask R 35 [ Rafuse ] where Justice Goldenberg (upheld on appeal) found inordinate delay when three years and nine months had elapsed. In that action, the plaintiffs sought to set aside a mother’s transfer of land to the plaintiffs’ brother, claiming that the transfer was obtained through undue influence, fraud, deceit or misrepresentation.

Notably, the plaintiffs’ damages in Rafuse were apparent from the outset of the claim, a strong distinction from Ms. Zapshalla’s claim since, as will be seen, her injuries allegedly have taken several years to manifest themselves. [ 16 ] Ram also cites Anderson v Wascana Wood Components Ltd., 2010 SKQB 357 , 361 Sask R 219 [ Anderson ], where Justice Zarzeczny found that a delay in excess of three years and four months was inordinate. Of note, Justice Zarzeczny measured delay from the unsuccessful settlement discussions to the date of the defendant’s application.

In fact, in that case, the plaintiff’s statement of claim was issued in September 2006 and settlement was unsuccessful in March 2007. Accordingly, delay was approximately four years, but still fell short of what Justice Zarzeczny considered to be a reasonable time to prosecute a wrongful dismissal action: three years. At para. 16 he wrote: [16] … I find and conclude that a delay of in excess of three years in advancing this rather simple and straight forward wrongful dismissal case does constitute inordinate delay when compared to the progress of comparable cases. …

[ 17 ] In Saskatchewan Government Insurance v Bear , 2017 SKQB 276 , 14 CPC (8 th ) 171, the plaintiff’s delay was close to five years and was struck. In Czerwonka v Rural Municipality of Montmartre No. 126 , 2018 SKQB 202 , 37 CPC (8 th ) 106, the delay between completion of mediation and disclosure of documents was just over four years.

Although inordinate delay was found, the claim was saved for other reasons. [ 18 ] In Marion v English River Limited Partnership No. 1, 2019 SKQB 2 [ Marion ] a delay of three years and four months was found to be inordinate, particularly since the court had previously ordered a timeframe within which disclosure of documents was to be completed but had not been done. [ 19 ] Notably, too, in Marion , as in Crescent Point Resources Partnership v Husky Oil Operations Limited , 2020 SKQB 128 , 61 CPC (8 th ) 393, the court also considered the lapse of time between the occurrence of the injury and the time the statement of claim was issued and served.

As such, waiting until the eve of the expiry of the limitation period is a relevant consideration in determining inordinate delay. Ms. Zapshalla issued her claim on the eve of the lapsing of the limitation period. [ 20 ] In this contextual analysis, Ms. Zapshalla’s delay of nearly five years is inordinate. Is Ms. Zapshalla’s delay excusable? [ 21 ] The onus of convincing the court that her delay should be excused lies with Ms.

Zapshalla ( Anderson ) and any excuses she proffers must be “objectively reasonable in all of the circumstances”: Morsky Construction Ltd. v Nickle Lake Regional Park Authority, 2015 SKQB 257 at para 17 , 151 CLR (4 th ) 72. As Justice Richards (as he then was) said in ICC whether excusable delay has been made out might include “consideration of the nature of the claim, the diligence with which the claim has been pressed by the plaintiff, and the specific reasons offered as to why the matter has not moved more quickly” (at para. 44). [ 22 ] Essentially, Ms.

Zapshalla seeks to excuse her delay based on two circumstances: 1. Her existing and continually unfolding injuries. She suggests that these health issues affected her ability to focus on the claim and, furthermore, prevented her from providing an accurate assessment of her damages. 2. Her understanding and expectation that she had disclosed her medical condition and the defendants were assessing her damages with an understanding that settlement discussions would continue. Does Ms. Zapshalla’s medical conditions provide a reasonable excuse for delay? [ 23 ] Exhibit A to Ms.

Zapshalla’s affidavit is detailed and date specific, describing details of Ms. Zapshalla’s attendance at various medical facilities, including 31 dates when she received medical treatment. Summarized, she states:

a) July 27, 2016, at Yorkton Hospital (day after the fall at 11:30 p.m.) to receive x-rays revealing no broken bones other than a broken pinky finger on right hand;

b) July 28, 2016, at Regina General Hospital when a cast was put on right hand covering hand and forearm. Ms. Zapshalla offers further comment as follows: Over the next three weeks multiple applications of ice packs over all affected bruised areas…and regular doses of pain medication. Entire body was one big ache, rested as much as possible to help alleviate the pain.

c) August 15, 2016, attended family physician who removed the cast and re-cast hand. Physiotherapy for right shoulder ordered.

d) August 21, 2016, received ultrasound on right shoulder.

e) February 2017, experienced headaches “day and night”.

f) May 1, 2017 to June 30, 2017, surgery to repair two tears of the right shoulder rotator cuff performed by Dr. Stittert, Comox, British Columbia followed by two months in a sling and physiotherapy three times a day during May and June 2017.

g) July 2017 to September 2019, weekly physiotherapy consultation and appointments during July, August and September 2017. Slept in a chair from July 27, 2016 to October 2017.

h) April 17, 2018, CT scan at Yorkton Hospital to determine cause of headaches.

i) April 20, 2018, attendance to ENT specialist to determine sinus infection not the cause of headaches.

j) April 27, 2018, new pains (“electric” shock) from neck to head.

k) April – June 2018, acupuncture and massage therapy for headaches (unsuccessful).

l) July 9, 2018, attended neurologist in Regina “unable to find reason for headaches.”

m) July and August 2018, attended chiropractor in Swan River, Manitoba to realign spine.

n) October 11, 2018, attended chiropractor in Saskatoon.

o) October 13, 2018, phone consultation with surgeon in Comox, British Columbia.

p) November 17, 2018, MRI on right shoulder.

q) January 14, 2019, attended Dr. Van Sittert in Comox, British Columbia and cortisone in right shoulder.

r) May 29, 2019, attended physician in Kelowna, British Columbia for pain management.

s) May 30, 2019, attended naturopath in Kelowna, British Columbia and receive ozone injections.

t) June 2017 – “headaches stopped”.

u) July 10, 2019, attended chiropractor in Saskatoon.

v) July 18, 2019, attended Dr. De Jager, physician in Regina who ordered x-rays and physiotherapy on shoulder.

w) August 12, 2019, attended Dr. De Jager.

x) August 30, 2019, attended Dr. De Jager and received cortisone shot in left shoulder. Further surgery recommended.

y) September 4, 2019, attended Dr. Philipps in Saskatoon and received new physiotherapy regime.

z) September 26, 2019, attended Prairie View Physiotherapy. aa) July 2, 2020, Dr. De Jager performed surgery on left shoulder rotator cuff and bone spur. bb) July 28, 2020, attended Cornerstone Physio. cc) July 30, 2020, “follow up surgery by Dr. De Jager, Regina.” [ 24 ] Ms.

Zapshalla states at para. 28 of her affidavit that since July 30, 2020 she has “continued a regime of home exercises to attempt to regain some of [her] pre-accident mobility.” She has been given a diagnosis of chronic muscle pain that is not expected to improve. [ 25 ] Health concerns factor in an excusable analysis, but not merely because a plaintiff can prove poor health.

Justice Caldwell in Schening v Steel , 2020 SKCA 137 , para 16 , 51 RFL (8 th ) 1 [ Schening ], explained that a plaintiff may put forward health issues to justify an inordinate delay but “must cogently explain why the health issues in question have caused or contributed to the delay” The plaintiff must “rationally link the health issues to the delay by showing how they affected the plaintiff’s capacity to advance the litigation.” When a plaintiff can objectively establish this rational link, the duration of the plaintiff’s health-related incapacity to advance matters will become a relevant consideration.

In Schening , Justice Caldwell found that the plaintiff had merely listed off his health concerns but failed to explain how they excused his inordinate delay. [ 26 ] Ram points out that approximately one-half of the health concerns and medical interventions Ms. Zapshalla describes in her affidavit happened from the date of the injury until July 2018, when she issued her claim. [ 27 ] Admittedly, her health issues persisted and required further treatment until July 2020, two years after she had commenced her action.

However, from July 2020 her recovery and treatment regime has apparently consisted of home exercises. Ram also suggests that although a plaintiff’s poor health might be offered as an excuse, the excuse weakens when the alleged poor health is precisely the nature of the claimed injury. Ms. Zapshalla initiated the claim two years after her injury, fully aware of the nature of her poor health. [ 28 ] The circumstances in Lowry v Coppola , 2020 SKQB 51 , 10 CLR (5 th ) 289 [ Lowry ], where Justice Klatt excused the plaintiff’s delay because of poor health, were distinctly different than the circumstances at hand.

In Lowry , the plaintiff’s damages arose from an alleged breach of contract, a claim completely unrelated to her health problems. Although she did not find inordinate delay (notwithstanding nine years of delay), Justice Klatt would have excused the delay because the plaintiff was diagnosed with lung cancer and underwent a throat biopsy that left her in immense pain and unable to speak properly. Surgery to remove a tumour in her lung required several months of recovery. She also broke her ankle, which required further surgery. [ 29 ] I accept, as Ms.

Zapshalla has argued, that chronic pain makes “day-to-day life difficult,” including participating in litigation and engaging with legal counsel. As well, although Ram argues that Ms. Zapshalla’s continuing health issues were the precise impetus of her claim, the flip side of this argument is the reality that only time will reveal the full extent of her injury. Ms. Zapshalla alluded to this reality in her statement of claim when she wrote: 11. As a further result of the injuries aforesaid, the Plaintiff has incurred and continues to incur medial and hospital and drug expenses. 12.

As a further result of the injuries aforesaid, the Plaintiff will incur from loss and expense as special damages, as she is still under treatment for her injuries. [ 30 ] On balance, the court does not find that Ms. Zapshalla has rationally linked her health issues or her being lulled by the defendants’ action as reasonable excuses for her delay. Ms. Zapshalla’s understanding that defendants were assessing damages in preparation for settlement [ 31 ] As stated in ICC , reasons to excuse delay are contextual and open-ended.

At this juncture further factual clarity is needed to determine what the parties, particularly Ms. Zapshalla, did to move the litigation forward. None of the parties has provided

any information about any exchange during the first two years following service of the statement of claim, only that Honeywell did not provide its statement of defence until 22 months after service of the claim. [ 32 ] Concerning the interaction between Ram and Ms. Zapshalla, the relevant facts follow: 1. On October 6, 2020, Ram’s counsel, Ms. Eisner, sent a letter to Ms. Zapshalla’s counsel, Mr. Rusnak, inquiring whether Ms. Zapshalla was able to disclose her medical records and set dates for questioning. 2. On November 17, 2020, Ms. Eisner sent another follow up letter. Again, no response was received. 3.

On January 19, 2021, Ms. Eisner emailed Mr. Rusnak stating that an application to compel disclosure would be brought if disclosure was not received within two weeks. 4. On February 1, 2021, Mr. Rusnak provided documents disclosing a written

summary of Ms. Zapshalla’s treatment, receipts and record of appointments (but no medical records corresponding with her treatment

summary), which, in his covering letter, Mr. Rusnak described as follows: a. Chain of events; b. Travel log; c. Other expenses; and d. Appointments. 5. On February 4, 2021, Mr. Rusnak provided Ms. Eisner with three letters from three separate physicians. 6. On February 9, 2021, Ms. Eisner sent correspondence to Mr. Rusnak requesting medical records and charges from Ms. Zapshalla’s physicians to be provided within four weeks to allow Ram to complete a proper analysis of her claim. 7. On March 3, 2021, Mr. Rusnak sent an invoice to Ram’s counsel requesting payment of $344.52 to obtain the medical records. 8.

On September 17, 2021, Ms. Eisner responded to the request for payment stating: … In early March we received an invoice for the cost of obtaining the medical records. We have instructions from our client to not pay the invoice. The plaintiff is required to prove her case on damages and accordingly, she is obligated to produce any and all records related to her claim. Given the foregoing, can you please advise when we can expect the plaintiff’s medical records on this matter. 9. Approximately eight months later, on May 26, 2022, Mr. Rusnak wrote to Ms.

Eisner stating: Further to your email of September 17 th , 2021, we believe we have provided you with the entirety of our Plaintiff’s medical records by letter dated March 3 rd , 2021 and emailed to you on March 5 th , 2021. 10. Apparently no further interaction or proceedings occurred between counsel after May 26, 2022. [ 33 ] Concerning the interaction between Honeywell and Ms. Zapshalla, the relevant facts as found in Mr. Persick’s affidavit (counsel for Honeywell) and Ms. Zapshalla’s affidavit follow: 1. Initially, as stated by Mr.

Persick, he was copied with much of the correspondence concerning Ram’s defence. As well, much of Mr. Persick’s engagement with Mr. Rusnak was by telephone conversation. 2. Honeywell, as a manufacturer of the lift, required further particulars of the claim, resulting in a delayed statement of defence. After filing the defence in May 2020, Mr. Persick left a message at Mr. Rusnak’s office on June 12, 2020, seeking further particulars of Ms. Zapshalla’s healthcare records. On June 17, 2020, Mr. Rusnak spoke to Mr. Persick and suggested that he visit the plaintiff’s residence to view the scene of the incident. 3.

On June 25, 2020, Mr. Persick met with Mr. Rusnak at Ms. Zapshalla’s residence. In response to his inquiry when he might receive documentation clarifying the extent of Ms. Zapshalla’s injuries, Mr. Persick was advised that such would be forthcoming and could be expected in advance of mediation. 4. On July 2, 2020, Mr. Persick received correspondence from Mr. Rusnak, forwarding a copy of correspondence from the Ministry of Health dated June 30, 2020 outlining the Minister’s claim. 5. After unsuccessful mediation, Mr. Persick spoke to Mr. Rusnak, again inquiring of medical records. He was told that Ms.

Zapshalla was scheduled to undergo surgery and information would be sent after surgery. 6. On October 16, 2020, Mr. Persick again inquired of the status of Ms. Zapshalla’s surgery and was told that information might be available in a couple of weeks. 7. On November 5, 2020, Mr. Persick spoke with Mr. Rusnak and was again told that information would be available within a few weeks.

8. On December 8, 2020, Mr. Persick contacted Mr. Rusnak again and was told that records were unlikely to be provided before the end of the year. 9. On March 5, 2021, Mr. Rusnak provided a letter (dated March 3, 2021) and related attachments consisting of medical records and a related memorandum of account. 10. On April 19, 2021, Mr. Persick spoke to Mr. Rusnak to confirm whether any further medical information would be forthcoming, respecting which Mr. Rusnak replied that information would be provided “in the near future.” 11. On June 28, 2021, upon Mr.

Persick’s inquiry, he was told that information would be provided “at some point in the following weeks.” 12. No further substantive exchange has occurred between counsel since June 2021. [ 34 ] Ms. Zapshalla suggests that her delay should be excused because she was “lulled into a false sense of security” by a reasonable expectation that Ram, being told it had all of her medical records, would complete an assessment of her injuries and present a settlement and Honeywell, expecting to receive more medical records, was waiting for Ms. Zapshalla’s assessment of damages.

As she more elaborately stated at para. 22 of her brief of law, her delay should be excused because she thought that: 22. …the Defendants were looking to either assess her damages or alternatively receive her proposal for assessment of damages. None of this necessitated further process until settlement negotiations had been exhausted. The Defendants were in possession of all the relevant medical reports.

They had a detailed history of the injuries and surgeries that took place and had they wanted to proceed with Oral Questioning, all they had to do was request it if there was something in the documentation provided that they were having difficulty with. A review of the correspondence between the litigants will establish that this never took place. The Plaintiff was lulled into a false sense of security that either a settlement proposal would be forthcoming from Ram or alternatively, Honeywell was waiting for the Plaintiff’s assessment of damages. [ 35 ] In determining the legitimacy of Ms.

Zapshalla’s suggestion that the defendants “lulled” her into complacency, one might ask: in whose court has the litigation ball lain since the last meaningful exchange? [ 36 ] I have difficulty accepting that Ms. Zapshalla was waiting for Ram to assess her damages based on medical reports that she provided to Ram’s counsel on March 3, 2021, two years before Ram brought its application to strike, even though Ms. Zapshalla’s counsel reminded Ram on May 26, 2022 that the medical records were complete. Admittedly, the last “nudge” toward furthering the litigation came from Ms.

Zapshalla’s counsel on May 26, 2022, without reply from Ram’s counsel. However, the court is mindful that the obligation to advance litigation lies primarily with the plaintiff. [ 37 ] The court also sees an inconsistency between the reasons Ms. Zapshalla offers to excuse delay. Mr. Rusnak told Ms. Eisner (Ram’s counsel) that Ms. Zapshalla’s medical records were completely disclosed by March 2021, but according to Mr. Persick’s affidavit, Mr. Rusnak told Mr. Persick in April and June 2021 that further records were yet to be disclosed. [ 38 ] Obviously, reasonable arguments can be made to reject or accept Ms.

Zapshalla’s health issues and her expectations of continued settlement discussions as excuses for her inordinate delay. However, I do not accept that Ms. Zapshalla could have realistically expected the defendants to have been assessing her injuries for approximately two years in hopes of a settlement after. Do the interests of justice favour Ms. Zapshalla’s action proceeding? [ 39 ] ICC provided a legal framework to assess whether, notwithstanding inordinate and inexcusable delay, the interests of justice would intervene to justify the plaintiff continuing to prosecute the claim. At para 45, ICC provided (

a) to (

h) were factors to consider: (

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 stage of the litigation; (

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

e) The context in which the delay occurred; (

f) The reasons offered for the delay; (

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

h) The public interest. The prejudice the defendants will suffer if the claim goes to trial [ 40 ] The Court of Appeal in ICC described this consideration as follows at para. 45: [45] … (

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. [Emphasis in original] [ 41 ] Ram states that its ability to defend the action has been prejudiced by diminished memories, including Ms. Zapshalla’s memory. I disagree and find little if any prejudice would be occasioned either defendant. [ 42 ] Ms.

Zapshalla was the sole witness to the accident. The court takes judicial notice that when a lift is summoned, the lift door would not normally open unless the floor of the elevator is present. Whether an installer or the designer of the lift, the mechanics of a door mechanism are not particularly dependent upon any witness’s memory. The defendants are corporations in the business of designing and installing lifts. Ms. Zapshalla’s claim is not about an interaction between individuals where memories are significant. This action is about an alleged mechanical failure.

The length of inexcusable delay [ 43 ] The longer the delay, the less likely will the interests of justice intervene in favour of the plaintiff. Here the delay, although inordinate, has not been as extreme as found in other cases where the plaintiff’s claim has not been struck. The stage of litigation [ 44 ] The only formal proceedings taken by the parties is an exchange of pleadings and mediation. No formal affidavit as to documents has been exchanged and no questioning has occurred. Albeit, Ms. Zapshalla has provided certain medical records, which arguably remain incomplete.

These less advanced proceedings lie in favour of the defendants’ application to strike. The impact of the delay on the defendants [ 45 ] Given Justice Richards’ explanation in ICC that under this factor the court must consider “the impact of claims which put…the livelihood of the defendant at risk or which involve significant or ongoing negative publicity for the defendant” (at para. 45(d)) I find little that suggests such consequence to either Ram or Honeywell.

The context in which delay occurred [ 46 ] Although I have found that delay was inordinate, the interests of justice require a more nuanced view of the delay. Ms. Zapshalla states that the last engagement with Ram was her counsel’s correspondence of May 26, 2022, less than one year before Ram brought its application. Indeed, in Ram’s first affidavit in support of its application to strike, it missed mentioning Mr.

Rusnak’s correspondence of May 26, 2022, an error that was corrected in a subsequent affidavit. [ 47 ] As Justice Klatt found in Lowry , I accept that it is the plaintiff’s obligation to move litigation forward, but not in disregard to the options also available to a defendant.

Justice Jackson in Saskatoon Trading Company Limited v Hergott, Duval, Stack and Partners , 2013 SKCA 42 , 362 DLR (4 th ) 67, acknowledging that ICC placed the primary burden of advancing a claim upon the plaintiff, qualified this obligation, stating at para. 38: [38] As Richards J.A. stated in International Capital (at para. 44), a Court must be careful not to impose a plaintiff’s obligation to move litigation forward on a defendant.

Having said that, however, it would be completely unrealistic not to take into account the defendant’s actions in determining whether delay is excusable where it is appropriate to do so. In this case, it is relevant that the Respondents allowed five years to pass before filing a statement of defence and it was the Respondents who continued to ask for the Appellants’ expert opinion before proceeding to examinations for discovery. [ 48 ] Similarly, in this instance, the court notes that Honeywell did not serve a statement of defence until 22 months after Ms. Zapshalla served her statement of claim.

Respective counsel for the parties must have had some understanding that the litigation was not going to conclude quickly. [ 49 ] Notably, too, Ram’s counsel did not respond to Mr. Rusnak’s correspondence of May 26, 2022 when he re- stated that Ms. Zapshalla’s medical records had been provided more than a year previously. The role of counsel and public interest [ 50 ] I agree with counsels’ submission that neither of these factors are engaged in this application. Conclusion [ 51 ] The court concludes that Ms.

Zapshalla’s delay was inordinate and that her reasons for delay do not meet the mark to be excused. [ 52 ] However, in the interests of justice her claim cannot be struck. The defendants’ reputations are not prejudiced, their livelihoods are not impacted by the delay, and they cannot complain about the witnesses’ loss of memory. Lastly, the defendants have not availed themselves of any proceedings to formally or informally advance the litigation. [ 53 ] Costs in the usual manner lie in Ms. Zapshalla’s favour.

J. D.H. LAYH