Simm v. Attorney General of Canada, 2022 NSSC 74

SUPREME COURT OF Nova Scotia Citation: Simm v. Attorney General of Canada , 2022 NSSC 74 Date: 20220311 Docket: SK No. 429827 Registry: Kentville Between: DAVID SIMM Plaintiff v. ATTORNEY GENERAL OF CANADA and CONSTABLE NATHANAEL PHINNEY Defendants DECISION ON MOTION TO DISMISS Judge: The Honourable Justice Scott C. Norton Heard: March 10, 2022, in Kentville, Nova Scotia Decision: March 11, 2022 Counsel: Michael Curry for Jonathan G.

Cuming, for the Plaintiff Corinne Bedford, for the Defendants By the Court: [ 1 ] The Defendants move for an Order pursuant to Nova Scotia Civil Procedure Rule 82.18 dismissing the Plaintiff’s claims for delay. The motion was filed on December 15, 2021 and, with the Plaintiff’s agreement, scheduled for hearing on March 10, 2022. [ 2 ] At the hearing, after hearing submissions, I denied the request from Plaintiff counsel to adjourn the motion. I then heard submissions on the merits of the motion and granted the motion, with written reasons to follow.

These are my reasons. [ 3 ] The Plaintiff filed no materials in response to the motion. The day before the hearing, counsel for the Plaintiff wrote to the Court advising that he had not heard from his client “despite leaving multiple voice-mail messages with him in recent weeks.” The letter further advised that counsel did not take issue with the affidavit evidence filed by the Defendants is support of the motion. Plaintiff counsel requested “a few more weeks” to try to track down his client to obtain instructions. [ 4 ] The Plaintiff filed a Notice of Action and Statement of Claim on July 25, 2014.

A Notice of Defence and Statement of Defence was filed on November 27, 2014. Since the outset of the proceeding the Plaintiff has been represented by legal counsel. [ 5 ] The evidence establishes that throughout the history of the proceeding the Defendants have been the party attempting to push the matter forward procedurally. Affidavits disclosing documents were exchanged in February 2017.

In June, 2018 and January and September, 2019, the Defendants requested discovery examinations to be scheduled with no response from the Plaintiff. [ 6 ] On July 6, 2020, the Defendants requested a response or else they would file a motion to dismiss. Receiving no response, the Defendants asked the court for available dates for the motion. The court provided the parties with possible dates by email on July 14, 2020. At that time counsel for the Plaintiff contacted counsel for the Defendants and proposed discovery dates in August 2020.

Counsel for the Defendants then advised the court on July 27, 2020 that a motion would not be necessary. By email on August 4, 2020, the

Defendants proposed dates at the end of October and early November to accommodate the

schedule of Plaintiff’s counsel. No responsewas received as of December 10, 2021. Request for Adjournment [7] I refused the request by Plaintiff counsel for an adjournment. [8] Rule 22.18 gives the judge the discretion to adjourn a motion. [9] The law in relation to an adjournment under Rule 22.18 was canvassed by Gogan, J. in Hatfield v. Intact Insurance Company,2016 NSSC 150: [17] The first determination to be made is whether or not an adjournment is appropriate. An adjournment is contemplated by CivilProcedure Rule 22.18. It is discretionary relief. The applicable principles are well settled.

The interests of justice must govern andrequire a balancing of interests between the parties. The considerations relevant to this exercise may vary but the essence of the analysisis the assessment of relative prejudice to the parties. Reference is made to Moore v.

Economical Mutual Insurance Co., supra, at para.35. [18] LeBlanc J. had occasion to summarize the applicable principles in Hubley, supra, at para. 15: [15] ...While the presiding judge or adjudicator has the discretion to grant or to refuse a request for adjournment, he or she mustexercise this discretion in accordance with the following principles of law. First, the judge must take the context of the proceedings intoaccount when making an adjournment decision. Second, a decision to grant or to refuse an adjournment must be grounded in theinterests of justice.

The presiding judge determines the interests of justice by balancing the interests of the plaintiff with the interests ofthe defendant, to determine the relative prejudice, of an adjournment decision, to both parties. The aim is to minimize the prejudice, anda judge should be hesitant to exercise his or her discretion in a manner that results in disproportionate prejudice to one party over theother. (citation excluded) [10] The threat of a dismissal motion was first made in July 2020. The motion was filed on December 15, 2021. The hearing wasscheduled for March 10, 2022 with the agreement of Plaintiff counsel.

No evidence was filed with the Court detailing the steps takensince December to obtain instructions from the Plaintiff. There is no evidence that the Plaintiff was unaware of the motion. No concernwas raised by Plaintiff counsel to the Defendants’ counsel or the Court until the letter from Plaintiff counsel on March 9, 2022.

Therequest for adjournment was opposed by the Defendants. [11] I have considered the history and status of the proceeding, the absence of evidence from the Plaintiff or Plaintiff counsel, andbalancing the prejudice to the Plaintiff of possible dismissal against the prejudice to the Plaintiff of having this matter further delayed, Ifind that it is in the interests of justice that the motion for dismissal proceeds. Beyond the irony that the motion is for dismissal due todelay, to permit a further adjournment of the motion in all of the circumstances would bring the administration of justice into disrepute.

Issues [12] The issue for determination is whether the Plaintiff’s claim should be dismissed for delay. Law [13] The legal test was, helpfully, recently considered in Sears v. Melling, 2021 NSSC 224. Justice Glen McDougall provided thefollowing thorough

summary: [20] The parties do not dispute the legal test for determining whether a matter ought to be dismissed for want of prosecution and thelaw is well settled in Nova Scotia. Bourgeois J., as she was then, set out the law in Braithwaite v Nova Scotia Public Service Long TermDisability Plan Trust Fund (Trustee of), 2011 NSSC 176, as follows: 7 In my view, the factors to be considered in relation to such a motion, are well established, and not controversial. As stated by Hamilton,J.A. in MacMillan v.

Children's Aid Society of Cape Breton, 2006 NSCA 13: [5] The test for dismissal of an action for want of prosecution is well established. It is summarized in Clarke v. Sherman et al. (2002),2002 NSCA 64 , 205 N.S.R. (2d) 112, 643 A.P.R. 112 (C.A.): [8] Thus, to summarize, in order to succeed the onus is upon a defendant to show: first, that the plaintiff is to blame for inordinate delay;second, that the inordinate delay is inexcusable; and third, that the defendant is likely to be seriously prejudiced on account of theplaintiff's inordinate and inexcusable delay.

If the defendant is successful in satisfying these three requirements, the court, beforegranting the application must, in exercising its discretion, go on to take into consideration the plaintiff's own position and strike abalance — in other words, do justice between the parties. 8 It is clear that in addressing such a motion, the Court must consider not only all three of the enunciated factors, but must also undertakea balancing of justice between the parties, most notably, considering the plaintiff's position (See Brogan v. RBC Dominion SecuritiesInc., 2009 NSSC 351).

It is equally clear that each case must be determined on the basis of its own particular circumstances. 9 The Defendants have asserted however, that in some circumstances, the third factor as outlined above, may be presumed, resulting in aplaintiff carrying the burden of establishing there has been no serious prejudice. This approach has clearly been adopted, in appropriatecircumstances (see Martell v. McAlpine Ltd. (1978), (NS CA), 25 N.S.R. (2d) 540), and recently re-articulated by theCourt of Appeal in MacMillan, supra, as follows:

[19] The case law indicates prejudice may be presumed in some circumstances. The judge referred to this case law and found that in thecircumstances of this case they should presume serious prejudice rather than require the respondents to prove it: [23] Mr. Justice Chipman of our Court of Appeal in Saulnier v. Dartmouth Fuels Ltd. (1991), (NS CA), 106N.S.R. (2d) 425, ... confirmed the Cooper test in Martell on the question of onus at page 430 ...

I quote: All that can be said generally about onus is that while the onus is initially upon the defendant as applicant to show prejudice, theremay be cases where the delay is so inordinate as to give rise in the circumstances to an inference of prejudice that falls upon the plaintiffto displace. The strength of the inference to be derived from any given period of delay will depend upon all the circumstances in thecase.' [24] And finally in Moir v. Landry (1991), (NS CA), 104 N.S.R. (2d) 281 (N.S.C.A.), this was a caseinvolving a three year delay. Mr.

Justice Hallett, of the Court of Appeal, writing for the Court, noted that the onus to establishprejudice falls on the defendant except in cases of unusual long delay, such as the ten years in Martell. Justice Hallett said at page 284 in Moir v. Landry, supra ...: A plaintiff has a right to a day in Court and should not lightly be deprived of that right. Therefore, it is only in extreme cases of inordinateand inexcusable delay that a Court should presume serious prejudice to the defendant in the absence of evidence to support such afinding. [25] This is one of those cases.

I am satisfied that as a result of the inordinate, inexcusable, extreme delay in excess of ten years inrelation to this matter, that I can presume serious prejudice to the defendants. I do not find that the plaintiff has satisfied the onus toestablish that no such prejudice exists. [21] In sum, the defendant must show that (

a) the delay is inordinate; (

b) the delay is inexcusable; and (

c) the defendants are likely tobe seriously prejudiced by the delay. Any prejudice alleged must be causally linked to the delay (Clarke v Sherman, 2002 NSCA 64,para 23). However, if the defendant is able to establish that the delay is exceptionally inordinate, then the burden shifts to the plaintiff toprove that the defendant would not be seriously prejudiced by the delay if the matter went to trial.

I must then balance the parties’positions, taking into account factors like the nature of the claim and who bears responsibility for the instances of delay. [22] The provision for dismissal for want of prosecution is at Civil Procedure Rule 82.18: 82.18 Dismissal for want of prosecution A judge may dismiss a proceeding that is not brought to trial or hearing in a reasonable time. [23] As this provision is substantively similar to the version under the Nova Scotia Civil Procedure Rules (1972), cases from beforethe 2009 update are relevant for our purposes (Young v Merryll Lynch Canada Inc, supra, para 20).

That does not mean that more recentstatements of law should be ignored, as discussed by the Manitoba Court of Appeal in The Workers Compensation Board v Ali, 2020MBCA 122: 85 Almost seven years ago, the Supreme Court of Canada made it clear that a shift in culture is required, that when courtcosts and delays become too great, people simply give up on justice, and that a fair process is illusory unless it is also accessible— proportionate, timely and affordable (see Hryniak v. Mauldin, 2014 SCC 7 (S.C.C.) at paras 25-28).

While the Court in R. v.Jordan, 2016 SCC 27 (S.C.C.) was concerned with timely proceedings in the criminal law context, many of its observations also apply inthe civil law context.

In Jordan, the Court recognized that fair trial interests are affected because the longer a trial is delayed, themore likely it is that a party will be prejudiced in mounting a defence owing to faded memories, unavailability of witnesses, orlost or degraded evidence, and that timely trials are important to maintain overall public confidence in the administration ofjustice (see paras 20, 25). [emphasis added] [24] Similarly, the Nova Scotia Civil Procedure Rules are premised on the notion that timeliness is an integral pillar in achievingjustice: 1.01 Object of these Rules These Rules are for the just, speedy, and inexpensive determination of every proceeding. [emphasis added] [25] Therefore, while I agree with the Plaintiff that dismissal for want of prosecution is an extreme and rarely used remedy, courts andlegislatures in Canada have also sent the clear message that justice requires timeliness, otherwise it is justice denied. [14] The Supreme Court of Canada in Hryniak, supra, considering the use of the

summary judgment process, instructed trial courtsthat a shift in culture was required and provided the trial courts with sound and persuasive encouragement to take greater control of civillitigation and to avoid its historic propensity for delay. Gone are the days where the court left it to the parties to determine when theywere ready for trial, be it 5, 10, or more years after the claim is filed. The Supreme Court in Hryniak said, at paras. 23-32: 23 This appeal concerns the values and choices underlying our civil justice system, and the ability of ordinary Canadians to accessthat justice.

Our civil justice system is premised upon the value that the process of adjudication must be fair and just. This cannot becompromised. 24 However, undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of

disputes. The full trial has become largely illusory because, except where government funding is available, ordinary Canadians cannot afford to access the adjudication of civil disputes. The cost and delay associated with the traditional process means that, as counsel for the intervener the Advocates' Society (in Bruno Appliance ) stated at the hearing of this appeal, the trial process denies ordinary people the opportunity to have adjudication.

And while going to trial has long been seen as a last resort, other dispute resolution mechanisms such as mediation and settlement are more likely to produce fair and just results when adjudication remains a realistic alternative. 25 Prompt judicial resolution of legal disputes allows individuals to get on with their lives. But, when court costs and delays become too great, people look for alternatives or simply give up on justice.

Sometimes, they choose to represent themselves, often creating further problems due to their lack of familiarity with the law. 26 In some circles, private arbitration is increasingly seen as an alternative to a slow judicial process.

But private arbitration is not the solution since, without an accessible public forum for the adjudication of disputes, the rule of law is threatened and the development of the common law undermined. 27 There is growing support for alternative adjudication of disputes and a developing consensus that the traditional balance struck by extensive pre-trial processes and the conventional trial no longer reflects the modern reality and needs to be re-adjusted. A proper balance requires simplified and proportionate procedures for adjudication, and impacts the role of counsel and judges.

This balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial. 28 This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible — proportionate, timely and affordable.

The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure. 29 There is, of course, always some tension between accessibility and the truth-seeking function but, much as one would not expect a jury trial over a contested parking ticket, the procedures used to adjudicate civil disputes must fit the nature of the claim.

If the process is disproportionate to the nature of the dispute and the interests involved, then it will not achieve a fair and just result. 30 The proportionality principle is now reflected in many of the provinces’ rules and can act as a touchstone for access to civil justice. For example, Ontario Rules 1.04(1) and (1.1) provide: 1.04

(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding. 31 Even where proportionality is not specifically codified, applying rules of court that involve discretion “includes . . . an underlying principle of proportionality which means taking account of the appropriateness of the procedure, its cost and impact on the litigation, and its timeliness, given the nature and complexity of the litigation”: Szeto v.

Dwyer , 2010 NLCA 36 , 297 Nfld. & P.E.I.R. 311, at para. 53 . 32 This culture shift requires judges to actively manage the legal process in line with the principle of proportionality. While

summary judgment motions can save time and resources, like most pre-trial procedures, they can also slow down the proceedings if used inappropriately. While judges can and should play a role in controlling such risks, counsel must, in accordance with the traditions of their profession, act in a way that facilitates rather than frustrates access to justice. Lawyers should consider their client's limited means and the nature of their case and fashion proportionate means to achieve a fair and just result. [ 15 ] In the present case the Plaintiff has not filed materials in response to the motion.

This is in keeping with the Plaintiff’s apparent lack of enthusiasm to move the proceeding forward except as required by the Defendants. [ 16 ] I find that the delay in advancing this proceeding has been inexcusable and inordinate. The events giving rise to the claim occurred in July, 2013. Nine years of delay is, on its face, inordinate. No explanation has been offered for the delay. The Plaintiff has been represented by counsel throughout. This, together with the fact that the Defendants have repeatedly pushed the Plaintiff to advance the proceeding, makes the delay inexcusable.

This leaves only the consideration of prejudice. [ 17 ] In addition to the inference of prejudice as a result of delay as described in the authorities, in this case the evidence indicates that the findings of fact necessary to determine liability are reliant upon witness recollection of what occurred on a particular evening in another province when the Plaintiff and other witnesses were allegedly intoxicated. [ 18 ] There is no evidence before me that the delay was caused solely or substantially by the acts or omissions of the Plaintiff’s solicitor.

In cases where that is the case the court has greater reluctance to deprive a plaintiff of his day in court. [ 19 ] As Justice McDougall said in Sears : [64] Our system of justice operates best when its participants follow the rules and norms of litigation. Increasingly, courts have signalled the importance of timeliness in achieving justice; as the saying goes, justice delayed is justice denied. Although it is appropriate to place faith in counsel, litigants such as Mr. Sears are not hapless passengers along for the ride.

Where they have the control and capacity to do so, plaintiffs must respond when there are warnings across the bow, such as there were in this case. The delay in advancing Mr. Sears’s case is inordinate and inexcusable, and his efforts to explain the delay and to pin the blame primarily on his lawyer do little to address the prejudice the Defendants and Third Party would suffer if this matter was permitted to go forward. The Plaintiff Mr. Sears and his legal counsel’s failure to pursue his claim is fatal.

[ 20 ] The Defendants’ motion for dismissal pursuant to Rule 82.18 is granted. The parties agreed on the quantum of costs. I order that the Plaintiff pay to the Defendants costs, inclusive of disbursements, in the amount of $1,000. [ 21 ] Order accordingly. Norton, J.