Simeonidis v. Manitoba Public Insurance Date:, 2011 MBCA 48

Citation: Simeonidis v. Manitoba Public Insurance Date: 20110608 Corp., 2011 MBCA 48 Docket: AI 10-30-07486 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Richard J. Chartier Mr. Justice Marc M. Monnin BETWEEN : AHILLEFS SIMEONIDIS ) ) Plaintiff ) - and - ) ) MANITOBA PUBLIC INSURANCE ) J. I. Jardine CORPORATION ) for the Appellant ) Defendant ) ) (by Original Action) ) R. A.

McFadyen ) for the Respondent A N D B E T W E E N: ) ) HELENA SIMEONIDIS, as Executrix of the ) ESTATE OF AHILLEFS SIMEONIDIS ) Appeal heard and ) Decision pronounced: (Plaintiff) Appellant ) June 8, 2011 - and - ) ) MANITOBA PUBLIC INSURANCE ) CORPORATION ) ) (Defendant) Respondent ) CHARTIER J.A. (for the Court): 1 The underlying action to which this appeal relates is a claim for disability benefits made by the now deceased plaintiff arising out of a collision between his motor vehicle and a moose on September 21, 1989.

The plaintiff’s widow, on behalf of his estate, appeals the decision of the motions judge dismissing his estate’s appeal from a master’s order which had granted the Manitoba Public Insurance Corporation’s (MPI) delay motion and dismissed the plaintiff’s statement of claim. 2 All parties agree that the decision of the motions judge was an exercise in judicial discretion.

As a result, assuming the motions judge did not err on the law (reviewed on the correctness standard) or on the facts (reviewed on the palpable and overriding error standard), then that decision is entitled to significant deference and this court will not intervene unless it is so clearly wrong as to amount to an injustice (see Towers Ltd. v. Quinton’s Cleaners Ltd. et al. , 2009 MBCA 81 at paras. 24-28 , 245 Man.R. (2d) 70 ).

This is a very high threshold. 3 In his reasons, the motions judge considered the legal principles to be applied to a motion to dismiss for delay under Rule 24 of the Queen’s Bench Rules, including issues of inherent and specific prejudice . Although counsel for the plaintiff took issue with some words and sentences used by the motions judge, fundamentally, we see no error with his recitation of the law. 4 The motions judge reviewed at some length the affidavit evidence. He weighed and balanced the relevant factors.

He accepted that MPI had established unreasonable delay and resulting prejudice, both inherent and specific. We are all of the view, given the nature of the prejudice that existed in this case, that the motions judge was entitled to find that MPI ’ s actions or inactions were not “so significant or culpable so as to tip the delicate balancing away from them and deprive them of their right to justice.”

5 This court, in Mauer v. McDougall et al. , 2001 MBCA 2 at paras. 18-19 , 153 Man.R. (2d) 259 , and more recently, in Dubois v. Manitoba Lotteries Corp . et al. , 2009 MBCA 108 at paras. 28-30 , 251 Man.R. (2d) 5 , explained that inherent prejudice can occur when there is a lengthy, unjustified delay in the prosecution of a personal injury claim. This prejudice arises from a defendant’s inability to defend because of the deterioration of the quality of the evidence over time. In this case, the motions judge found that the lengthy delay clearly resulted in inherent prejudice.

It is true that the plaintiff experienced many unfortunate events from the date of the accident in 1989 to the date of his death in 2007. While some allowance can be made for the effect of those events on the plaintiff ’ s life, the motions judge held that notwithstanding the impact of those events, the degree of inactivity on the part of the plaintiff with respect to the litigation was not justifiable. We agree. 6 Most important is the specific prejudice in this case. The death of the plaintiff precludes MPI examining him at trial on his physical abilities.

There is a dispute between the parties as to the degree of his disability or whether he suffered any disability at all. While the doctors could be examined on their respective reports, the inability to examine the plaintiff is material in this case. 7 In our view, the plaintiff has not demonstrated any error in principle by the motions judge, or any misapprehension of the evidence which would warrant appellate intervention. Moreover, we have not found any error with the manner in which the motions judge exercised his discretion.

He knew he could exercise his own independent discretion with respect to the decision of the master, and we are satisfied that he did so in this case. 8 In the result, the appeal is dismissed with costs . _________________________ J.A. _________________________J.A. ________________________ J.A.