ENVIRO-GUN LTD., SPECIAL RECYCLING CONTROL CORPORATION, 101053945 SASKATCHEWAN LTD., CLINT A. KIMERY v. RODERICK ROBBINS, 2023 SKKB 224

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 224 Date: 20 23 10 26 Docket: QBG-RG-01621-2010 Judicial Centre: Regina BETWEEN: ENVIRO-GUN LTD., SPECIAL RECYCLING CONTROL CORPORATION, 101053945 SASKATCHEWAN LTD., CLINT A. KIMERY and RODERICK ROBBINS PLAINTIFFS/RESPONDENTS - and - RURAL MUNICPALITY OF SHERWOOD NO. 159 DEFENDANT/APPLICANT Counsel: Robert I. L. MacKay for the plaintiffs/respondents Courtney Riviere for the defendants/applicants JUDGMENT TOCHOR J. October 26, 202 3 I.

Introduction [ 1 ] On September 3, 2010, the plaintiffs, Enviro-Gun Ltd., Special Recycling Control Corporation, 101053945 Saskatchewan Ltd., Clint A.

Kimery, and Roderick Robbins [Plaintiffs], issued a claim against the Rural Municipality of Sherwood No. 159 [RM] or [Defendant]. [ 2 ] In their claim, the Plaintiffs allege a number of grievances against various RM officers and councillors relating to the assessment and taxation of certain property. [ 3 ] On November 16, 2010, the RM brought an application to strike the Plaintiff’s claim and, in the decision of Zarzeczny J. on December 14, 2010, (reported at 2010 SKQB 455 , 367 Sask R 133) parts of the claim were struck.

However, some parts of the claim remained and Zarzeczny J., at para. 26, urged the Plaintiffs to review and amend the pleadings. On January 4, 2011, the RM filed its Statement of Defence. [ 4 ] For the next two and one-half years , no formal steps were taken by the Plaintiffs. [ 5 ] On July 3, 2013, the Plaintiff, Mr. Kimery, filed a notice of intention to proceed.

For the next nine years and four months , no steps were taken by the Plaintiffs. [ 6 ] The only step taken by the Plaintiffs in nearly twelve years (eleven years and ten months) was to file a notice of intention to proceed. [ 7 ] On November 10, 2022, counsel for the Plaintiffs advised of their intention to proceed with the claim.

On April 13, 2023, the RM filed its application to dismiss the Plaintiffs’ claim pursuant to Rule 4-44 of The Queen’s Bench Rules . [ 8 ] To date, no steps were taken by the Plaintiffs to amend their pleading in accordance with the suggestions made by Zarzeczny J. in 2010, and the parties have not attended mandatory mediation. Further, none of the staff members or councillors, who were involved with this matter before 2010, are now with the RM. [ 9 ] For the reasons that follow, I grant the Defendant’s application to dismiss the Plaintiffs’ claim pursuant to Rule 4-44 of The Queen’s Bench Rules .

II. The Legal Framework [ 10 ] The starting point for consideration of an application is found in Rule 4-44 which states: 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. [ 11 ] The oft-cited test for applications with respect to inordinate and inexcusable delay is found in International Capital Corporation v Robinson Twigg & Ketilson , 2010 SKCA 48 , 319 DLR (4 th ) 155 [ ICC ]. There, at paras. 43-45, the court provided a three-part test which can be summarized as follow: (

a) is the delay inordinate?; (

b) is the delay excusable?; and (

c) is it in the interests of justice for the claim to proceed? [ 12 ] This three-part test set out in ICC was recently affirmed in Huard v The Winning Combination Inc., 2022 SKCA 130 at para 42 [ Huard ] and in Taylor v Moose Jaw Downtown and Soccer/Field House Facilities Inc. (Mosaic Place) , 2021 SKCA 123 at paras 17-18 [ Taylor ]. [ 13 ] As emphasized in Taylor at para 26 and Huard at para 73 , the ultimate responsibility for advancing an action lies with the plaintiff. This responsibility is explained in Huard as follows: [73] As I read this passage [ Taylor ], two things are beyond doubt.

First, a defendant’s obligations are to “act, on a timely basis, in taking the steps prescribed by the Rules and taking such other steps, like responding to correspondence, that legitimately call for action on its part” (emphasis added). They are not otherwise obligated to press the action ahead.

This leads to the second point, namely, that the “ultimate and ongoing responsibility for moving litigation forward lies with the plaintiff ” ([ Taylor ] at para 26 , emphasis added). [ 14 ] The principles set out in ICC , Taylor and Huard have recently been re-affirmed in Arkell v Komodowski , 2023 SKCA 79 at paras 45-47 . [ 15 ] I address each of these steps in turn below. III. Applying the Legal Framework 1. Is the Delay Inordinate? [ 16 ] The first step requires a determination of whether there is inordinate delay. [ 17 ] This step requires the chambers judge to undertake a comparison of (

a) the time taken to prosecute this action to date and (

b) the time such a case should ordinarily take to reach the current stage. This comparison occurs within the context of the general experience of the judge and the specific circumstances of a particular action. In ICC , the court explains this part of the inquiry as follows, at para. 43: [43] The first step, … , is an inquiry about whether the defendant has established that the delay in moving a case ahead has been inordinate.

This will involve considering the time the plaintiff has taken to get the litigation to the point where the application to strike is brought and comparing that lapse of time to what might typically be expected in a case of similar complexity. This is necessarily a matter of informed judgment grounded in the overall experience of the court and the particulars of the file in question. [ 18 ] In order to determine if there exists any inordinate delay as defined in ICC , it is necessary to review the basic chronology of the steps taken in this action.

The chronology of this action is not detailed or complex, and these circumstances do not require a step-by-step analysis to provide an appropriate level of context. [ 19 ] As briefly summarized above, the claim was issued on September 3, 2010 and on January 4, 2011, the RM filed its statement of defence. For the next two and one-half years, no steps were taken by the Plaintiffs. [ 20 ] On July 3, 2013, the Plaintiff, Mr. Kimery, filed a notice of intention to proceed. For the next nine years and four months, no formal steps were taken by the Plaintiffs. [ 21 ] Mr.

Kimery, in his affidavit, explains his lawyer tried to arrange for mediation dates but this lawyer later withdrew. He further suggests that the RM lawyer refused to arrange a mediation date without having a lawyer represent Mr. Kimery. He appears to place blame on the RM lawyer for not arranging a mediation meeting. This, however, is his responsibility as a plaintiff, and not that of the RM’s lawyer.

It was open to the Plaintiffs to make an application for an order setting the mediation date. [ 22 ] Aside from some attempts to arrange a mediation meeting in 2013, the only step taken by the Plaintiffs in nearly twelve years was to file a notice of intention to proceed.

[ 23 ] After assessing the amount of time that might typically be necessary to prosecute a case of similar complexity, I have no hesitation in concluding this delay is inordinate. [ 24 ] There are examples in the case authorities, involving relatively similar types of claims, which establish that a delay of three and one-half to five years or more is inordinate. For example, in McLeod v Fyson , 2014 SKQB 87 , 440 Sask R 286, the court found a delay of three and one-half years to complete the questioning phase was inordinate.

Other cases, such as McKee v Melfort (City) , 2011 SKQB 462 and LNY Holdings Ltd. v Royal Bank of Canada , 2012 SKQB 107 , 392 Sask R 140, have held a delay of four years to be inordinate. A five-year delay was found inordinate in McDiarmid Lumber Ltd. v Ochapowace First Nation , 2010 SKQB 402 , 6 CPC (7 th ) 376 and Saskatchewan Government Insurance v Bear , 2017 SKQB 276 , 14 CPC (8 th ) 171. Finally, a six-year delay was also held inordinate in University of Saskatchewan v Cana Construction Co.

Ltd. , 2011 SKQB 55 , 368 Sask R 288 and Taylor . [ 25 ] Here, I conclude the delay – whether considered as 9 years since 2013 or a cumulative delay since 2010 of nearly 12 years – is inordinate. 2. Is the Delay Excusable? [ 26 ] The second step of the ICC test requires a determination of whether the delay, or any part of it, was excusable. [ 27 ] This step requires consideration of a wide variety of factors, including the nature of the action, the delay which has occurred, and the reasons given for the delay.

ICC explains this part of the inquiry at para. 44: [44] The second step in the analysis, … , is an examination of the reasons for the delay aimed at determining whether it is excusable. 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. A wide variety of factors might be expected to factor into this assessment. [ 28 ] Since 2013, Mr. Kimery explains no lawyer would take on his case until he retained Mr. MacKay in November 2022.

Little else is offered by way of explanation. In these circumstances, I do not accept this as an adequate or appropriate explanation for a delay of this length. [ 29 ] In

summary, therefore, I conclude the delay in these circumstances – a period of nine years and four months – is also inexcusable. 3. Do the Interests of Justice Require the Matter to Proceed? [ 30 ] The third step in ICC requires a determination of whether the interests of justice require the matter to proceed, notwithstanding the inordinate and inexcusable delay. This step entails a broader, more holistic, examination of several factors. [ 31 ] Importantly, this step is where the issue of prejudice to a defendant is considered.

While the existence of prejudice is not a requirement for an order to dismiss a claim, prejudice is an important factor to consider. In ICC at para 51 , the court confirmed the existence of prejudice is “no longer a free-standing prerequisite for dismissing [a claim] for want of prosecution”. [ 32 ] ICC states this at para. 45 : [45] … If the court finds delay to have been both inordinate and inexcusable, it should not consider the issue of “serious prejudice” as a discreet question.

Rather, it should move directly to the issue of whether it is in the interests of justice that the case proceed to trial notwithstanding the delay and should consider the issue of prejudice in that context. In dealing with this third and final part of the analysis, the court should have regard to all of the relevant circumstances … [ 33 ] Further, in Saskatchewan Crop Insurance Corporation v McVeigh , 2018 SKCA 76 , 428 DLR (4 th ) 122, Schwann J.A. explains the analysis to be undertaken when considering the interests of justice.

She points out that even if inordinate and excusable delay is established by a defendant, the court is still required to carefully assess whether the interests of justice require the case to proceed. She states at para. 92: [92] As Richards J.A. (as he then was) said in ICC , the question at this stage of the analysis is whether it is in the interests of justice for the case to proceed to trial notwithstanding undue and inexcusable delay (para 45).

This requires the first-instance judge to step back and ask whether, in spite of the inexcusable delay, there is a compelling “interests of justice” reason for the case to proceed on its merits. In a word, Caldwell J.A in Harding v Harding , 2014 SKCA 74 , 442 Sask R 8 , described it as a “failsafe”. [ 34 ] ICC then provides, at para. 45 , this non-exhaustive list of factors to be considered when assessing all of the relevant circumstances: [45] … (

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 …; and, (

h) The public interest … [ 35 ] As well, ICC gives direction as to how to weigh and consider these factors. The court holds this assessment is not intended to be a mechanical exercise where each of the factors is automatically given equal weight, and then a scorecard is completed. Instead, a more contextual approach is required.

This is explained at paras. 46-47: [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 . [Emphasis added] [ 36 ] Importantly, ICC tells us these factors must be viewed through a lens which acknowledges the “on-the-ground realities of litigation” and towards the objective of achieving a just result. [ 37 ] See also Morsky Construction Ltd. v Nickle Lake (Regional Park Authority) , 2016 SKCA 110 at paras 24 and 25 , 485 Sask R 32. [ 38 ] Finally, additional guidance is given in ICC where the court points out defendants are not powerless to address delay.

Instead, they have tools to address concerns of a plaintiff’s inaction. The court said this at para. 49 of ICC : [49] In concluding on this point, I think it appropriate to add that defendants are, of course, not hostage to the decisions made by plaintiffs in relation to the pace of litigation. A defendant frustrated by delay always has the option of applying to the Court of Queen’s Bench for an order requiring timely compliance with document discovery and production obligations, completion of examinations for discovery, provision of replies to undertakings and so forth.

An application to strike for want of prosecution is only one weapon in the arsenal of a defendant concerned about unreasonable delay. [ 39 ] After reviewing the evidence and submissions of counsel for the Defendant, in the context of the considerations set out in ICC at para 45 , I conclude it is not in the interests of justice to allow the claim to proceed. [ 40 ] The Plaintiffs argue the RM’s actions were high-handed and that the court must not employ the extraordinary remedy of dismissing their claim. They frame this application as an attempt to deny access to justice for self-represented litigants.

The RM points to the chronology of events to illustrate the Plaintiffs exercised no diligence in pursing the claim. [ 41 ] In the end analysis, I conclude there are many factors that weigh against permitting this claim to proceed. [ 42 ] The existence of prejudice to the RM ( ICC at para 45 (a)) weighs in favour of an order for dismissal of the claim. While not strenuously advanced by the RM, I conclude the lengthy period of delay in this matter causes prejudice to the preparation and presentation of their case.

As set out above, none of the RM staff or council members who dealt with the Plaintiffs at the material times are with the RM now. The existence of prejudice is a factor upon which the RM can legitimately rely. [ 43 ] Further, although the Plaintiffs argue their reasons for the delay should be considered, the length of this inexcusable delay ( ICC at para 45 (b)) weighs very heavily in favour of an order for dismissal of the claim. [ 44 ] The stage of the litigation ( ICC at para 45 (c)) also weighs heavily against an order allowing the action to proceed.

After this inordinate and inexcusable delay since 2013, the parties are nowhere near a point where the litigation can be quickly resuscitated. Even after this inordinate and inexcusable delay, there has been no mediation meeting. The proceedings, to date, are not at all advanced, especially when compared to other case authorities where an order for dismissal was sought. [ 45 ] The context in which the delay occurred ( ICC at para 45 (e)) operates against allowing the claim to proceed. Here, the only way to characterize the context of the delay is radio silence.

This was not a case where the parties, for example, engaged in protracted settlement discussions or investigations. There is no evidence of any kind of activity by the Plaintiffs, despite their submissions. [ 46 ] As well, the only explanation for the delay ( ICC at para 45 (f)) was that Mr. Kimery could not arrange for legal counsel. This explanation may have mitigated a shorter delay but does not adequately explain a delay of over nine years.

This factor, then, weighs heavily against an order allowing the claim to survive. [ 47 ] When considering the ICC factors, I am also mindful of the direction given at para. 49 that a defendant need not be a hostage to the plaintiff’s pace of proceedings. It was always open to the Defendant to make an application to compel the Plaintiffs to take the next steps or risk facing an application to dismiss its claim.

However, in these circumstances, I recognize the direction in Taylor at para 26 and Huard at para 73 that the ultimate responsibility for advancing an action lies with the plaintiff. [ 48 ] After weighing the ICC factors in accordance with the direction given at paras. 46-47, I have no hesitation in

concluding the interests of justice require this claim to be dismissed. Viewed in the context of the on-the-ground realities of litigation, and recognizing the goal of achieving a just result, a consideration of all relevant factors compels this result. [ 49 ] In conclusion, for the reasons set out above, I conclude the delay in this matter is inordinate and inexcusable. I also conclude the interests of justice require that this claim be dismissed. IV.

Costs [ 50 ] Rule 11-8(1) of The Queen’s Bench Rules states costs in interlocutory proceedings must follow the outcome of the application; however, this Rule is still subject to the overall discretion regarding costs found in Rule 11-1(1) and is subject to the many considerations listed in Rule 11-1(4).

In assessing the relative success of the parties in this application under Rule 11-1(4)(a), it is clear the Defendant is successful and, in light of the lengthy delay in this matter, it is appropriate to award costs against the Plaintiffs. [ 51 ] In these circumstances, I conclude an appropriate award of costs payable to the RM by the Plaintiffs, jointly and severally, is the total sum of $800. V.

Summary of Orders [ 52 ] In

summary, I make the following orders: (

a) The Defendant’s application to dismiss the claim of the Plaintiffs pursuant to Rule 4-44 of The Queen’s Bench Rules is granted; (

b) The Plaintiffs, jointly and severally, shall pay costs of this application to the Rural Municipality of Sherwood No. 159 in the sum of $800 within 60 days of the date of this order. J. M.D. TOCHOR