2023 MBKB 142, 2023 MBKB 142

Date: 20231004 Docket: CI 11-01-69914 (Winnipeg Centre) Indexed as: Hyra v. Rolston et al Cited as: 2023 MBKB 142 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: JASON HYRA, ) Self-Represented ) for the plaintiff plaintiff, ) ) - and - ) ) RYAN ROLSTON ( Attorney ) and killeen rolston wiebe ( Law Firm ), ) ) William G. Haight for the defendants ) defendants. ) ) Judgment Delivered: ) October 4, 2023 M c KELVEY J. INTRODUCTION [ 1 ] The defendants filed a notice of motion on February 17, 2021, seeking to dismiss the plaintiff’s action for inordinate and inexcusable delay or for long delay.

Long delay is predicated on whether three or more years have passed without a significant advance in the litigation. BACKGROUND [ 2 ] The statement of claim was filed on January 14, 2011, alleging that the defendant Ryan Rolston (“Rolston”) was negligent with respect to his legal representation of the plaintiff during a 2006 criminal harassment trial. The plaintiff was convicted of that offence. His appeal to the Manitoba Court of Appeal was dismissed. Rolston did not act on the plaintiff’s behalf with respect to the Court of Appeal hearing.

It is noteworthy that inadequate trial representation was not raised as a ground of appeal. The plaintiff also undertook an application for ministerial review of his conviction pursuant to s. 696.1 of the Criminal Code , which, again, was dismissed. [ 3 ] The 2011 statement of claim seeks 16 million dollars from Rolston and twenty million dollars from the defendant law firm Killeen Rolston Wiebe. As indicated, it is alleged that Rolston’s negligent legal representation of the plaintiff contributed to his conviction.

The responsibility of the defendant law firm is said to be misrepresentation, as well as harassment and intimidation as regards a disputed billing for legal services. The law firm is also contended to be vicariously liable for Rolston’s representation of the plaintiff. [ 4 ] A motion to strike the statement of claim for not disclosing a reasonable cause of action was brought by the defendants in February 2011. At the same time, the plaintiff brought a motion to amend the statement of claim.

On May 29, 2012, leave was granted by Associate Judge (then “Master”) Berthaudin to amend the claim, albeit two causes of action were struck, leaving only negligence claims. The amended statement of claim was filed September 21, 2012, followed by the statement of defence on November 2, 2012. [ 5 ] On September 11, 2015, the defendants brought a motion to strike the statement of claim on the basis of abuse of process contending that the plaintiff was seeking to re-litigate the already-decided-and-concluded criminal matter (see Michaud v. Brodsky, Q.C. , 2008 MBCA 67 ).

That motion was heard and ultimately determined by Associate Judge Berthaudin on June 8, 2016, by way of an Endorsement. The statement of claim was struck as an abuse of process of the court without leave to amend. The plaintiff filed a notice of appeal to a judge of the Court of (then) Queen’s Bench on August 19, 2016. This filing was outside of the allowed 14-day appeal period (Rule 62.01). Consequently, on December 2, 2016, the plaintiff filed a notice of motion to extend the time to appeal. An affidavit

or brief in support of the motion has never been filed (Rule 62.01(7)). Such a motion may be granted if there is an arguable ground of appeal, if there was a continual intention to appeal, and it is right and just in all the circumstances to extend the time: Sentinel Self- Storage Corp. v. Dyregrov, 2021 MBQB 303 . The motion to extend time to appeal was to be heard on January 12, 2017, albeit the plaintiff requested and received an adjournment of that hearing on January 3, 2017.

There has been no communication by the plaintiff with defence counsel specifically with respect to the motion to extend time, nor has evidence such as an affidavit or brief in support ever been filed.

There have been no steps taken by the plaintiff to advance the action or to have the motion heard before the court. [ 6 ] King’s Bench Rule 24 is applicable to these circumstances: 24.01(1) The court may, on motion, dismiss all or part of an action if it finds that there has been delay in the action and that delay has resulted in significant prejudice to a party. 24.01(2) If the court finds that delay in an action is inordinate and inexcusable, that delay is presumed, in the absence of evidence to the contrary, to have resulted in significant prejudice to the moving party. 24.01(3) For the purposes of this rule, a delay is inordinate and inexcusable if it is in excess of what is reasonable having regard to the nature of the issues in the action and the particular circumstances of the case. 24.02(1) If three or more years have passed without a significant advance in an action, the court must, on motion, dismiss the action unless (

a) all parties have expressly agreed to the delay; (

b) the action has been stayed or adjourned pursuant to an order; (

c) an order has been made extending the time for a significant advance in the action to occur; (

d) the delay is provided for as the result of a case conference, case management conference or pre-trial conference; or (

e) a motion or other proceeding has been taken since the delay and the moving party has participated in the motion or other proceeding for a purpose and to the extent that warrants the action continuing. [ 7 ] Rule 24.01 stipulates, and the relevant case law has held, that significant prejudice is presumed if the court finds delay to be of an inordinate and inexcusable nature. That presumption can be rebutted by evidence to the contrary.

Delay is inordinate and inexcusable if it is in excess of what is reasonable, after having regard to the issues involved in the case. [ 8 ] Rule 24.02(1) sets out that a court must dismiss an action if three or more years have passed without a significant advance in the proceedings (“long delay”). The exceptions to Rule 24.02(1) are as previously outlined (para. 6). A further issue with respect to this matter and the determination of delay is the application of Rule 24.02(3) which states, “A ny period of time when a person is under disability is not to be included when calculating time under subrule (1)”.

The Court of King’s Bench Rules define disability as: "disability" , where used in respect to a person or party, means that the person or party is, (

a) a minor, or (

b) mentally incompetent or incapable of managing his or her affairs, whether or not so declared by a court; (Rule 1.03) [ 9 ] The decision in Buhr v. Buhr , 2021 MBCA 63 is instructive with respect to the law surrounding dismissal for delay. Simonsen JA stated: [28] It is well established that a decision to dismiss an action for delay under either the former r 24.01(1) or the current r 24.01(1) is discretionary, as both rules provide that the court “may” dismiss an action for delay. In The Workers Compensation Board v Ali , 2020 MBCA 122 , this Court recently confirmed that, even where the criteria of the current r 24.01(1) are met in that a moving party has

demonstrated delay resulting in significant prejudice, a court nonetheless retains discretion to dismiss the motion and allow the action to proceed. That discretion should be exercised only in exceptional circumstances where there is a “compelling reason” to do so (at para 46). ..... [30] Unlike the former and current rr 24.01(1), r 24.02(1) states that a court “must” dismiss an action if there has been a period of three or more years without a significant advance and none of the exceptions in rr 24.02(1)(

a) to (

e) apply. There is no real dispute between the parties and, as I will later explain, that this requirement is mandatory... [31] This Court and others have repeatedly emphasised that there is a strong public interest in promoting the timely resolution of disputes in our civil justice system.

A fair and just civil dispute resolution process becomes illusory unless it is proportionate, timely and affordable (see Glenwood Label & Box Mfg Ltd v Brunswick Label Systems Inc et al , 2019 MBCA 12 at para 5 ; and Ali at paras 85-86 ). ..... [33] Rule 24.02 is part of an overhaul of the QB Rules intended to expedite and bring finality to civil proceedings. It introduces a fundamentally different approach to delay than the former and current rr 24.01. Both the former and current rr 24.01 focus on the overall delay in the litigation as a whole; r 24.02 focusses on gaps.

Rule 24.02 is a drop-dead rule that provides for dismissal when there has been three or more years of inactivity on a case. The rationale for the rule is to weed out inactive cases, and address complacency in advancing civil actions. With respect to r 24.02 in particular, I note the following passage from DL et al v CP et al , 2019 MBQB 42 (at para 32 ): . . . The revised Rules change the focus to spotlight delay, which is often more defined and demonstrable than prejudice. A sharper, perhaps harsher, dawn is at hand.

Particularly with Rule 24.02 now in force, with its very limited exceptions, counsel and parties will have to be most vigilant to advance actions. Stagnant actions will be weeded out, and active claims finished swifter. Balancing for “a kind of essential justice” will not save the day. [34] The word “must” in r 24.02(1) is imperative (see The

Interpretation Act , CCSM c I80 at

section 15 ). This Court, in Steinmann v Kotello , 2012 MBCA 30 , accepted the following explanation given by Ruth Sullivan, Sullivan on the Construction of Statutes , 5th ed (Markham: LexisNexis, 2008) at 74, about terms such as “shall” or “must” (at para 17): . . . When “shall” and “must” are used in legislation to impose an obligation or create a prohibition or requirement, they are always imperative. A person who “shall” or “must” do something has no discretion to decide whether or not to do it. . . . . . . [ 10 ] The decision in Jacobs v.

McElhanney Land Surveyors Ltd , 2019 ABCA 220 , also sets out certain principles with respect to cases of long delay (paras. 58, 83-86). The important matter to be considered is that litigation delay harms the litigants and the civil justice system. Long delay is further considered in the decisions of Fehr et al. v. Manitoba Public Insurance Corporation et al. , 2019 MBQB 64 ; D.L. et al. v.

C.P. et al. , 2019 MBQB 42 . [ 11 ] The time for counting a period of long delay begins from the last significant advance or step in the litigation (December 2, 2016) and terminates on the date the motion for dismissal is filed (February 25, 2021). The issue of what constitutes a “significant advance” in the litigation has been considered in the case law and involves a functional test. In essence, a significant advance is an evaluation of whether the litigation has moved closer to trial or resolution in a meaningful way by virtue of an important step or notable progress.

This decision will focus on the period between December 2, 2016 and February 25, 2021, in terms of evaluating the long delay under Rule 24.02. DELAY OF GREATER THAN THREE YEARS (LONG DELAY)

[ 12 ] As indicated, Rule 24.02(1) requires that if three or more years have passed without a significant advance in a civil action, the court must dismiss unless the previously noted exceptions are applicable.

While none of those exceptions applies in this case, consideration must be given to Rule 24.02(3), which holds that if a person is under a disability for any period of time, that period is not to be included when calculating the delay period under subrule (1). [ 13 ] The plaintiff filed an affidavit and motions brief on September 6, 2023, which purports to explain the reasons behind his failure to move this matter forward subsequent to the filing of the Notice of Motion to extend the appeal period on December 2, 2016.

The plaintiff submits that any delay has not been deliberate and is a consequence of his experiencing adverse medical conditions. Those include: • a diagnosis of post-traumatic stress disorder (“PTSD”) which is directly tied to the criminal proceedings, this civil action and the actions of his employer, the Winnipeg Fire Paramedic Service (WFPS), and continues to the present time; • Type 2 diabetes; • non-alcoholic fatty liver disease; • high and low blood pressure problems; • inactive thyroid gland issues; • migraine headaches; • kidney stones; • high cholesterol; and • internal bleeding.

It is contended that the plaintiff’s PTSD has triggered health-related issues, along with the experiencing of side effects from prescribed medications. Additionally, the plaintiff has undergone surgeries with respect to kidney stones and a ruptured tendon on the right hand. Other medical issues include COVID-19 and, as indicated, the side effects of numerous medications that have been prescribed to assist the plaintiff in dealing with his health conditions and pain, particularly arising from kidney stones.

The required medications have included morphine. [ 14 ] The plaintiff affirms that the defendants were fully aware of his PTSD condition, along with other physical and psychological conditions being experienced. As a consequence, his inability to move this matter forward should have been known, respected and not become an issue precipitating this motion to dismiss for delay. [ 15 ] The plaintiff, as of June 1, 2018, is in receipt of a Canadian Pension Plan (CPP) disability pension because of his health conditions.

Further, medical reports outlining the plaintiff’s health conditions are attachments to his affidavit. As recently as April 11, 2023, the plaintiff’s family doctor, Dr. Carla Silver, has identified (Affidavit of Plaintiff, Tab 16): ... several new and ongoing health issues within the past few months. His ongoing medical management has also included medications that affect his ability to focus and his mood... He is still on several medications, and some of his chronic illnesses have been less well controlled during this period and in its aftermath.

At this point, the goal is stabilization of his medical issues and a return to baseline of his functioning. [ 16 ] As indicated, the plaintiff has advised the defence of his condition as exemplified by an April 12, 2023 e-mail which states (Tab 16): In the last 28 months I have had 5 surgeries 2 that caused internal nerve damage, been diagnosed with the painful and contagious shingles virus, been diagnosed with covid-19 causing vestibular neuritis and a slight loss of taste.

I have been diagnosed with PTSD that has been confirmed by my Psychiatrist, the Federal Government of Canada, the CRA, and the WCB; and is directly related to my wrongful conviction and this legal matter and causes a host of ongoing medical problems (nightmares, insomnia, etc..) and is linked to my diabetes, high blood pressure, and more. I have been going through psyche-therapy for years. I am currently on 11 different medications daily that can change at any time, 1 weekly, and 1 of 3 different ones nightly for insomnia.

The medications alone cause a daily host of medical problems ranging from but not limited to headaches to migraines to nausea. [ 17 ] The plaintiff’s documentation includes medical evidence that he experienced a particularly traumatic event in February 2018 (Affidavit of the Plaintiff, affirmed September 6, 2023, para. 7), which triggered: ... a major and massive PTSD episode causing severe medical trauma to myself.

Forcing me onto high blood pressure medications, thyroid medications, making my current diabetes medication inactive; causing stomach bleeding, nausea, diarrhea, water blisters to form on my forearms, and migraines just to name the additional major problems. The triggering event was said to be a fabricated claim that the plaintiff, while off duty, had threatened a Crown attorney. This contention was dealt with by the WFPS who are alleged to be the instigators of a continuing confluence of false allegations, harassment and discrimination in their attempts to have the plaintiff’s position terminated.

These were said by the plaintiff to have created

significant difficulty for him and, ultimately, has led to his being off work since February 2018.

It is noteworthy, however, that duringthis same timeframe, the plaintiff was able to engage in the pursuit of other areas and avenues during his “... very few periods of lucidityfrom 2019-2023” (Hyra Affidavit, September 6, 2023, para. 44), including numerous FIPPA requests, contact with the Ombudsman andendeavouring to take steps to have his 2006 conviction overturned (Hyra Affidavit, Tabs 5, 18, 19, 20; Verity Affidavit, January 12,2021, Tab F). [18] The plaintiff alleges in his September 6, 2023 affidavit that he has been the target of ongoing miscarriages of justice which havebeen verified through the results of numerous FIPPA applications, the lack of evidence that supports the 2006 conviction, a ManitobaOmbudsman complaint and an attempt to move forward within the courts to prove a miscarriage of justice and wrongful conviction.

Many of these steps are outlined in the plaintiff’s affidavit and brief. [19] It is the plaintiff’s contention that because of his health conditions, he is, and has been, disabled and unable to manage hisaffairs. (The other aspects of the disability definition contained in Rule 1.03 are inapplicable.) There is no medical information, nor isthere a power of attorney filed, that would indicate that the plaintiff was, from December 2, 2016 to February 8, 2021, incapable ofmanaging his affairs. Instead, many of the medical reports deal with an inability to return to work issues.

There is, without question,evidence of illness and health conditions, albeit, it does not appear to have been unbroken and continuous in nature. As the plaintiffstated, there have been periods of lucidity. Strikingly, there was the triggering event in February 2018 caused by his employer thatilluminated his 2015 PTSD diagnoses. That said, the plaintiff was dealing with the motion to extend the appeal period in 2016 and 2017in advance of the “triggering” episode.

Additionally, he has been able to pursue the “miscarriage of justice” issues, as well as otherlitigation during the relevant timeframe. [20] As indicated, a substantive amount of the medical information contained in the plaintiff’s affidavit relates to his inability toreturn to the work place. This includes adjustments to his medication, treatment and other issues. The medical information stipulatesthat the PTSD was caused by non-work events triggers and was exacerbated by his work place environment, particularly throughaccusations of his misconduct.

Further, much of the medical information on file is in support of his disability claims with CPP and theWorkers Compensation Board. This includes a progress psychiatric report dated December 22, 2018, from Dr. Waheed Lawal (Affidavitof Plaintiff, Tab 2). At that time, treatment was underway for depression and PTSD following work-related difficulties. There was notedto be stress and worries, albeit the plaintiff was said to be managing day to day with good communication. His cognition was describedas good as was his thought processes.

It is also demonstrable that the plaintiff was able to function and was following avenues related tothe matters of a wrongful conviction, miscarriage of justice, legal steps, and dealing with accusations arising from the work place. [21] As is demonstrated in his affidavit, the plaintiff made a number of known FIPPA requests in 2018 and 2020 (and beyond). These requests are coherent and display detail, timeliness and quality of information. They clearly show a capability of managing one’sown affairs and a functional individua​l.

Further, the plaintiff forwarded a letter to Rolston in April 2019 requesting information asregards his representation on the criminal case (Affidavit of Chelsea Verity, sworn January 12, 2021, Exhibit F). There was alsocommunication with the Ombudsman’s Office during the period of 2017 to 2021. This evidence demonstrates functioning, as theplaintiff was engaged in his pursuit of proving a wrongful conviction. In the circumstances, it shows that the plaintiff was capable ofmanaging his affairs and was doing so.

That said, he choose not to take any steps in this legal process to engage his motion to extend theappeal period of Associate Judge Berthaudin’s June 2016 decision to strike the statement of claim for constituting an abuse of process. While there may have been periods of time when the plaintiff was unable to deal with the motion to extend the appeal period, they arenot easily discernable from the evidence before the court.

The delay occasioned is well over four years. [22] As stipulated in Rule 24.02(1), if three or more years have passed without a significant advance in an action, the court mustdismiss unless the stipulated exceptions are applicable. None of the exceptions outlined in Rule 24.02(1) apply in this case. I haveconcluded that the plaintiff’s health conditions did not constitute a “disability” as contemplated by Rule 24.02(3) as the plaintiff wascapable of managing his affairs. He certainly was not afflicted by mental incompetence based on the evidence.

This is welldemonstrated by his cogent FIPPA requests and other avenues of litigious pursuit. As well, the court shutdown periods caused byCOVID-19 does not create an enumerated exception to a long delay dismissal. There has been no notable progress as regards this mattersince Associate Judge Berthaudin’s Endorsement of June 8, 2016, and the filing of the notice to extend time to appeal on December 2,2016.

Nothing has transpired in pursuit of this litigation, including the filing of documentation in support of the sought-after extension ofthe appeal period. [23] I am satisfied, in all the circumstances, that three years or more have passed without a significant advance in this litigation. Accordingly, I must dismiss the action. I acknowledge and regret the plaintiff’s health conditions, but am satisfied that disabilitydefinition as outlined in Rule 1.03 has not been met.

Is the delay that occurred in this case inordinate and inexcusable? [24] In accordance with Buhr, I am not required to consider the application of Rule 24.01 as regards inexcusable and inordinate delayas I have found long delay pursuant to Rule 24.02(1). However, for the sake of completeness, I will consider both areas of delay. [25] The issues between the parties are not complex, and particularly so as regards the plaintiff’s 2016 motion to extend the appealperiod. As was said in the The Workers Compensation Board v.

Ali, 2020 MBCA 122, it is within the court’s discretion to determinewhether delay has been inordinate and inexcusable. Burnett JA stated: [42] Although the moving party has the onus to prove that the inordinate delay is inexcusable, “[a]s a rule, until a credible excuse ismade out, the natural inference would be that [inordinate delay] is inexcusable” (Allen v McAlpine (Sir Alfred) & Sons, Ltd, [1968] 1 AllER 543 at 561 (CA)). Appellate courts across Canada have adopted this principle.

Thus, upon inordinate delay being established, theonus upon the moving party to establish inexcusable delay will essentially be met, and the plaintiff will be called upon to justify thedelay (see Ross v Crown Fuel Co Ltd et al (1962), (MB CA), 37 DLR (2d) 30 at 50 (Man CA)). The issue is thenwhether the nature and quality of the evidence provides the judge with a clear and meaningful explanation for the delay in the particularcircumstances of the case.

[ 26 ] Without question, issues to be reviewed under Rule 24.01 include the subject matter of the litigation, the complexity of the issues, the length of the delay, any explanation for the delay, and prejudice to other litigants. In these circumstances, is the delay in excess of what is reasonable? I am satisfied that the delay has been both inordinate and inexcusable because of the time that has elapsed since the filing of the motion to extend the appeal period in December 2016. There have been no attempts to move the litigation forward or have the notice to extend time to appeal heard.

Indeed, no affidavit or brief has ever been filed with respect to the motion to extend time. [ 27 ] The plaintiff, in his submissions, has indicated that while the delay has been inordinate, it is excusable. He admitted to having lucid periods, albeit contended that his health conditions were such that they could not be controlled and inhibited his ability to deal with the motion to extend the appeal period. Those health conditions were described as resulting from the criminal conviction, PTSD and repeated harassment by his employer.

These have resulted in him being a high risk for health complications and being immunocompromised. The plaintiff has described that he has been “doped out of his mind” because of the ingestion of morphine to help control the pain.

Further, he contends that he has been confined to a bed for the last three years with a laptop endeavouring to deal with issues arising from the circumstances in which he is embroiled and trying to prove that a wrongful conviction occurred in 2006. [ 28 ] The explanation provided by the plaintiff with respect to the delay has been the impact upon him caused by his unfortunate health issues. Those continue to the present time, as outlined in the plaintiff’s documentation. However, he has been able to undertake the pursuit of other legal avenues since the motion’s adjournment on January 3, 2017.

Further, the major PTSD trigger did not occur until February 2018. I am satisfied that the delay has been inordinate and inexcusable for those reasons set out in the long delay

section of this decision. [ 29 ] There has been no progress with respect to his action since the filing of the plaintiff’s motion to extend the appeal period on December 2, 2016. No steps have been taken, nor has an affidavit or a brief been filed to support the motion. This is despite the plaintiff’s ability to engage with other parties at a high level in his pursuit of miscarriage of justice issues. There has been contact between the parties related to the reasons for delay as affirmed by the plaintiff. However, as indicated, nothing has been done to move the motion to extend time to appeal forward.

Rule 24.01(2) stipulates where the delay is inordinate and inexcusable that delay is then presumed. Consequently, in the absence of evidence to the contrary, such delay will result in significant prejudice to the moving party. Indeed, more than four years have passed between the filing of the notice of motion to extend time and the date the defendants’ delay motion was filed in February 2021. As indicated, the plaintiff has provided a reason for the delay and why this claim has not progressed in his affidavit and motions brief, as outlined (Affidavit of Plaintiff, paras. 1-11 and throughout).

However, the plaintiff has undertaken the pursuit of other areas since January 3, 2017. I am satisfied that the delay has been inordinate and inexcusable and has caused prejudice to the defendants. The delay that has been occasioned is unreasonable, particularly after having regard to the involved issues in this case. CONCLUSION [ 30 ] The order is granted dismissing this action against the defendants for inordinate and inexcusable delay and for long delay. [ 31 ] Costs are awarded to the defendants and may be spoken to if an agreement cannot be reached. J.