Papasotiriou-Lanteigne v Tsitsos, 2023 MBCA 66

Citation: Papasotiriou-Lanteigne v Tsitsos, 2023 MBCA 66 Date: 20230721 Docket: AI22-30-09779 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella Madam Justice Jennifer A. Pfuetzner BETWEEN : DEMITRY PAPASOTIRIOU-LANTEIGNE ) F. J. Trippier and ) S. Nelko (Plaintiff) Appellant ) for the Appellant ) - and - ) R. A. McFadyen ) for the Respondents HARALABOS TSITSOS, GEORGIA ) TSITSOS, 3314910 MANITOBA INC., and ) Appeal heard: SANTA MARIA PIZZA AND SPAGHETTI ) February 28, 2023 HOUSE

(1992) LTD., ) ) Judgment delivered: (Defendants) Respondents ) July 21, 2023 On appeal from 2022 MBQB 41 mainella JA Introduction [ 1 ] This civil practice appeal concerns the correct

interpretation of r 24.06(1) of the MB, Court of King’s Bench Rules , MR 553/88 (the KB Rules ), which addresses the effect of the dismissal of an action for delay. The rule provides: Not a defence 24.06(1) The dismissal of an action for delay is not a defence to a subsequent action unless the order dismissing the action provides otherwise. [ 2 ] The parties agree that, historically, the relevant procedure has been, as Steel JA put it in Lenko v Hydro Electric Board (Man) , 2007 MBCA 157 , there are “two distinct issues” (at para 7) to be decided on a motion to dismiss an action for delay: (

a) the merits of dismissal; and (

b) the effect of the dismissal, if granted (i.e., should the dismissal be a defence to a subsequent action). [ 3 ] A master dismissed the plaintiff’s action for long delay (see r 24.02(1) of the KB Rules ). That determination is no longer at issue. The master also exercised his discretion, pursuant to r 24.06(1), when he ordered that the “dismissal . . . [constituted] a defence to any subsequent action”. Unfortunately, there are no reasons for his order. [ 4 ] The plaintiff appealed the master’s order.

The judge conducted a “fresh hearing” (at para 1; see also r 62.01(13) of the KB Rules ) at which the plaintiff raised three grounds of appeal (see para 3). The judge rejected each of the submissions. In this appeal, the plaintiff challenges only the judge’s decision as to whether “the dismissal [was] a defence to a subsequent action” ( ibid ).

The other grounds of appeal raised before the judge are not at issue in this Court. [ 5 ] In her decision, the judge dismissed the plaintiff’s appeal as to whether the dismissal was a defence to a subsequent action for a reason not advanced by the defendants and that also departed from the master’s order. [ 6 ] The judge decided that the two-part procedure in Lenko was “no longer applicable” in Manitoba (at para 36).

According to her reasoning, once an action is dismissed for delay (see either rr 24.01(1) or 24.02(1)), a party cannot bring a second action for the same relief even if the action is not statute barred by a limitation period as that would be an abuse of process. [ 7 ] According to the judge, r 24.06(1) of the KB Rules is now redundant as it is inconsistent with the modern approach to

timely and proportionate civil justice. In her view, once the master dismissed the action for long delay, that ended the matter; hisexercise of discretion under r 24.06(1) was legally irrelevant. The judge said it was “not clear” (at para 36) what purpose r 24.06(1)played in civil practice anymore.

She made the obiter comment that there may have been a drafting “oversight” (ibid) for r 24.06(1) tohave not been repealed when r 24 was amended (see Court of Queen’s Bench Rules, amendment, Man Reg 130/2017) and the revisedapproach to dismissal for delay was introduced effective January 1, 2018. [8] As the defendants put it in their factum, “[t]his is an unusual situation.” Both parties agree that the judge erred inprinciple in concluding that r 24.06(1) is redundant, that the two-part procedure discussed in Lenko is no longer the law and that there isno judicial discretion as to the effect of a dismissal of an action.

They advised this Court at the hearing of this appeal that other judges ofthe Court of King’s Bench have declined to follow the judge’s views regarding r 24.06(1) (see Ruchotzke v Ruchotzke, 2022 MBQB 153at para 52; and Duncan v Magnusson, 2023 MBKB 33 at paras 29-30). [9] Despite their agreement as to the judge erring, the parties disagree as to the significance of the purported error and asto the effect of the dismissal of the plaintiff’s action for delay.

They take opposite views as to whether this was an appropriate case toorder that the dismissal of the action would be a defence to any subsequent action by the plaintiff pursuant to r 24.06(1). [10] As this appeal is not about the dismissal of an action for delay, but the effect of the dismissal on a subsequent action,the substantive rights of the plaintiff are affected by the order appealed from and, therefore, leave to appeal under

section 25.2 of TheCourt of Appeal Act, CCSM c C240 (the CA Act), is not required. [11] In my view, the appeal should be dismissed. [12] While I share the judge’s view that concerns about timely and proportionate civil justice are animating principles as tothe effect of the dismissal of an action, I am respectfully unable to agree that r 24.06(1) is redundant or with her

interpretation of thatrule. However, despite the judge’s error, the result reached by the master was inevitable. The circumstances here are such that there isno reason to exercise an independent discretion from the result he reached (see ABI Biotechnology Inc v Apotex Inc et al, 2008 MBCA146 at para 4).

Background [13] The plaintiff commenced the action on November 13, 2015 against his uncle, the defendant Haralabos Tsitsos (H.T.);his aunt, the defendant Georgia Tsitsos (G.T.); and the corporations they control, alleging historical sexual abuse by H.T. when theplaintiff was under H.T. and G.T.’s guardianship and also when he was a young adult. On January 13, 2016, the defendants filed andserved a statement of defence denying those allegations. [14] When the action was commenced, the plaintiff (along with a co-accused) was facing a criminal charge in Toronto,Ontario for a 2011 first degree murder.

On June 3, 2018, after a trial, both accused were convicted of first degree murder. On August30, 2018, the plaintiff was released from custody pending determination of his appeal by the Ontario Court of Appeal. He was orderedto live under strict conditions at his home in Toronto. At the hearing of this appeal, the Court was told that the murder appeal had notyet been heard. [15] The plaintiff took no steps to advance the action for almost four years after the statement of defence was filed andserved. On December 19, 2019, the defendants moved to dismiss the action for delay.

The only explanation the plaintiff put before themaster and the judge for not advancing the action was that he was facing criminal proceedings in Toronto. Discussion Standard of Review [16] The judge’s

interpretation of r 24.06(1) is a pure question of law and, therefore, the standard of review of her decision iscorrectness (see Housen v Nikolaisen, 2002 SCC 33 at para 8; and Ian Dmytriw et al v Jonah NK Odim et al, 2020 MBCA 112 at para44). [17] Notwithstanding the demonstration of error, a civil appeal may be dismissed where the result is inevitable or the error isharmless as it can be confidently said that it had no real impact on a decision; in other words, the wrong is not a substantial one or amiscarriage of justice (see Donald JM Brown with the assistance of David Fairlie, Civil Appeals (Toronto: Thomson Reuters, 2023)(loose-leaf updated 2023, release 2), pt II, ch 6 at sections 6:5, 6:9; and section 27(1) of the CA Act).

Nature of an Order Dismissing an Action [18] An order dismissing an action for delay does not involve a finding on the merits; it is “interlocutory in character”(Shura v Silver (1963), (MB CA), 40 DLR (2d) 383 at 391 (Man CA)). Nevertheless, in order to reflect thefundamental premise that, at some point, there must be an end to litigation, the law recognizes forms of judicial discretion to bringfinality and prevent relitigation of a dismissed claim even though it is not decided on its merits.

Rule 24.06(1) is one such legalmechanism. [19] The wording of r 24.06(1) is identical to the wording of the same procedure in Ontario—r 24.05(1) of the ON, Rules ofCivil Procedure, RRO 1990, Reg 194 (which is also used in Prince Edward Island)—and is nearly identical to the wording of the sameprocedure in New Brunswick—r 26.04(1) of the Rules of Court of New Brunswick, NB Reg 82-73.

The rule allows for departure fromthe common law principle that res judicata cannot be founded on a dismissal of an action for delay because such an order isinterlocutory and does not affect substantive rights (see Hart v Hall & Pickles Ltd (1968), [1969] 1 QB 405 at 411 (CA (Eng)); andGarry D Watson & Derek McKay, Holmested and Watson: Ontario Civil Procedure (Toronto: Thomson Reuters, 1988) (loose-leaf updated 2023, release 2), pt II, ch 40, sub-ch V at

section 40:13, online: WL Can (date accessed 20 July 2023)).

Is KB Rule 24.06(1) Redundant? [20] The judge said that r 24.06(1) is redundant and the two-part procedure set out in Lenko should no longer be followedbecause, in the contemporary era, “expeditious [civil] justice” (at para 33) is a more important feature of the justice system than was thecase when Shura was decided in 1963.

As was noted in Wallace v Crate’s Marine Sales Ltd, 2014 ONCA 671, “[t]here comes a time, inshort, when enough is enough, and the civil justice system will no longer tolerate inordinate and inexplicable delay” (at para 22; see alsoThe Workers Compensation Board v Ali, 2020 MBCA 122 at para 87). [21] The judge relied on recent decisions of this Court where the importance of timely civil justice has been endorsed inrelation to the overall delay rule (r 24.01) (see Ali) and the long delay rule, often called the drop-dead rule, (r 24.02) (see Buhr v Buhr,2021 MBCA 63).

In Buhr, it was noted that the KB Rules in relation to delay had been overhauled as of January 1, 2018 with theintention to “expedite and bring finality to civil proceedings” (at para 33). [22] The judge also reasoned that the two-part procedure in Lenko appeared “to be at odds” (at para 26) with Ontarioauthority, Mintz v Wallwin, 2009 ONCA 199. [23] In Mintz, an action was dismissed for delay. A second identical action was brought. The defendants were unsuccessfulat first in having the second action dismissed as an abuse of process.

In allowing the defendants’ appeal, the Court stated (at paras 1-3): In our view, the motion judge erred in applying Rule 24.05(2) in a manner that, in essence, entitled the respondent to proceed with asecond identical action, subject only to paying the costs of the first action that had been dismissed for delay. The rule does not do this. It provides no right to a plaintiff to commence a second action identical to one that has been dismissed fordelay.

In this case it does not give the respondent an answer to the appellants’ claim that the respondent’s second action is an abuse ofprocess, a claim that the motion judge did not address. The respondent concedes that the order dismissing the first action for delay was correct. In our opinion to permit the respondent toproceed with the second action would indeed constitute an abuse of process.

In the circumstances before us, it would bring theadministration of justice into disrepute to now permit the respondent to proceed with a second, identical action. [24] The judge decided that to apply r 24.06(1) in the context of a dismissal for long delay (see r 24.02(1)) would“undermine the purpose” of the rule and be “inconsistent” with the modern emphasis on timely and proportionate civil justice (at para36).

In light of this conclusion, the judge said it was not “clear” what role r 24.06(1) played in the modern era and commented that“[o]ne cannot help but think that its presence [was] due to an oversight by the drafters of the 2017 amendments” (ibid). [25] In Ruchotzke and Duncan, a contrary view was taken as to the relevance of r 24.06(1). The judges in those casesdecided that r 24.06(1) was not redundant, nor was it an “oversight” for it to be left in r 24 after the amendments effective January 1,2018.

The alternative conclusion that they arrived at was that r 24.06(1) was part of a “comprehensive . . . ‘overhaul’” of the rules and itwas an “intentional” decision to have a judicial discretion as to the effect of a dismissal on a subsequent action as a “final safeguard”(Ruchotzke at para 51).

The point was made in Duncan that, in family law proceedings, the “disposition of the proceeding ought not tobe driven only by a fixation on efficiency or on cost savings - that some judicial discretion survives is most prudent, to secure a justresult” (at para 30; see also r 70.02 of the KB Rules). [26] I would address this controversy by making three observations.

Common Law Doctrine of Abuse of Process [27] To begin, in my respectful view, there is no disharmony between the decisions of Lenko and Mintz. [28] Lenko was about the settlement of an order, not the applicability of the common law doctrine of abuse of process to anaction dismissed for delay and later recommenced. In Lenko, there was a dispute as to whether or not an order had been made as to theeffect of the dismissal of an action.

It is distinguishable from Mintz where there was no dispute; such an order had not been made underthe Ontario rule that is equivalent to r 24.06(1) when the action was dismissed for delay. Unlike the situation in Lenko, Mintz is a caseabout the applicability of the common law doctrine of abuse of process to an action dismissed for delay that is later recommenced. [29] In Mintz, the Ontario Court of Appeal said that a plaintiff did not have the “right” (at para 2) to commence a secondaction identical to one that had been dismissed for delay if the circumstances amounted to an abuse of process.

A similar view wasexpressed by the Saskatchewan Court of Appeal in Diener v Hamp Estate, 1991 CarswellSask 521. In my view, this is a correctstatement of the law. [30] If one goes back to Shura, the point is made that, after an action is dismissed for delay, there can be legal mechanismsto prevent relitigation of a second identical action; for example, a statute of limitations (see p 391).

All Mintz and Diener highlight is thatthe common law doctrine of abuse of process is another legal mechanism to prevent relitigation of a claim that has been dismissed fordelay. [31] The common law doctrine of abuse of process is not confined by narrow rules. The reasoning in Mintz and Diener isconsistent with general principles regarding abuse of process which were explained in the following manner by Lyon JA in Solomon vSmith (1987), (MB CA), 45 DLR (4th) 266 (Man CA) (at p 275): “Maintaining open and ready access to the courts byall legitimate suitors is fundamental to our system of justice.

However, to achieve this worthy purpose, we must be vigilant to ensurethat the system does not become unnecessarily clogged with repetitious litigation of the kind here attempted.”

[ 32 ] The common law doctrine of abuse of process is flexible so that it can uphold the private interest of finality in litigation and/or the public interest in the proper administration of justice (see Toronto (City) v CUPE, Local 79 , 2003 SCC 63 at paras 37-38 ; Behn v Moulton Contracting Ltd , 2013 SCC 26 at para 40 ; and Law Society of Saskatchewan v Abrametz , 2022 SCC 29 at para 25 ). [ 33 ] In Kuhr v Pearlman , 1991 CarswellMan 203 (CA) , the Court went so far as to say that, given the inherent jurisdiction of the Court to prevent an abuse, the power to strike an action for delay does not depend on the particular wording of the applicable civil rule.

Huband JA remarked (at para 16): The power of a superior court to strike a matter for want of prosecution does not hinge on the niceties of the wording of the rules, but rather flows from the inherent power of the court to prevent an abuse of its own process. The Manitoba rules set forth the grounds upon which an “action” may be dismissed, but that does not mean that the court is powerless to dismiss an interlocutory motion for delay as well.

Indeed, it would be nonsense if the court lacked that jurisdiction. [ 34 ] On the question of whether the common law doctrine of abuse of process can be invoked to halt the recommencement of an action dismissed for delay, the plaintiff relied on the decision of Lifeview Emergency Services Ltd v Alberta Ambulance Operators’ Assn , 1995 CarswellNat 1916 (FCTD) , where Rothstein J (as he then was) approved of the reasons in Sinclair Timber Industries Ltd v Métis Assn Regional Council - Zone No 1 , 1995 CarswellAlta 251 (QB) , where the master stated that “[t]he dismissal of the first lawsuit for want of prosecution [was] not a bar to a second lawsuit.

Res judicata [did] not apply” (at para 11; see also Osborne Mortgage & Realty Co v Theroux , 1990 CarswellAlta 395 (QB) ). [ 35 ] The difficulty is that a close reading of the English authority cited in Sinclair Timber Industries Ltd to support the Court’s view (see Birkett v James (1977), [1978] AC 297 (HL (Eng)); and Dept of Transport v Chris Smaller ( Transport) Ltd , [1989] 1 All ER 897 (HL (Eng)) ) does not, in my respectful view, lay down an absolute universal rule as is seemingly suggested in Sinclair Timber Industries Ltd and which was relied on in Lifeview Emergency Services Ltd (see Williams & Co Ltd v Carolan & Anor , [2000] EWCA Civ 24 (BAILII) at paras 29, 40, 47 ). [ 36 ] Perhaps more importantly, the English courts more recently have adopted a more flexible approach to the applicability of the common law doctrine of abuse of process as to questions of delay that arise in civil litigation (see Grovit and Others v Doctor and Others , [1997] UKHL 13 (BAILII) ; and Alibrahim v Asturion Foundation , [2020] EWCA Civ 32 (BAILII) ).

All of this casts doubt on the precedential value of Lifeview Emergency Services Ltd and Sinclair Timber Industries Ltd to underpin the plaintiff’s argument that the common law doctrine of abuse of process cannot be invoked to halt the recommencement of an action dismissed for delay. [ 37 ] Interestingly, in M H v Roman Catholic Diocese of Calgary , 2020 ABQB 397 , another Alberta master suggested that recommencing an action that had been dismissed for delay may, outside the divorce context, “amount to an abuse of process” as a litigant who elects to enter litigation and is not under disability is expected to “use it or lose it”.

The master went on to say this was a “case-by- case” determination (at para 25). [ 38 ] In my view, the positions of the Ontario and Saskatchewan Courts of Appeal are consistent with the jurisprudence of this Court and with the common law doctrine of abuse of process generally as explained by the Supreme Court of Canada in Toronto (City) ; Behn ; and Abrametz . The application of the doctrine is a case-by-case question; there are no mechanical rules as to when the doctrine does or does not apply.

I would not carve out from the applicability of the doctrine the scenario of recommencement of an action dismissed for delay if the circumstances are indeed abusive. [ 39 ] While it is a serious matter to strike a claim that has not been decided on its merits, where the Court finds its processes are being misused, it must act to prevent an abuse.

As in Ontario, the law in Manitoba is that the mere fact that no order is made under r 24.06(1) when an action is dismissed for delay does not mean that, at a later date, a plaintiff has a right to recommence an identical action if the circumstances give rise to an abuse of process.

Roles of Timeliness and Proportionality [ 40 ] The next point is that I agree with the judge that the values of timeliness and proportionality are relevant to the effect of a dismissal for delay but in a different way than she proposes. [ 41 ] The modern view of civil justice is that “[t]he law itself is fully conscious of the evil of protracted litigation. . . . [T]he law recognises that the process cannot go on indefinitely.

There is a fundamental principle . . . which can be translated: ‘It is in the interest of society that there should be some end to litigation’” ( Ampthill Peerage (1976), [1977] AC 547 at 575 (HL (Eng)) ).

The era of civil claims being allowed to drone on interminably by the courts in sorry fashion is over. [ 42 ] I agree with the judge that there is no doubt that the values of timeliness and proportionality are relevant to the assessment of the effect of a dismissal for delay; this is made clear by The Court of King’s Bench Act , CCSM c C280 (the KB Act ), which provides that, “[a]s far as possible, a multiplicity of proceedings shall be avoided” (at

section 94 ) and the general princi ple articulated in the KB Rules that they are to be “liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits” (at r 1.04(1); see also r 70.02.1 for articulation of these principles in family proceedings). [ 43 ] The point was made by Barkman J in Royal Bank v Wilson , 1996 CarswellMan 153 (QB) , that the exercise of discretion under what now is r 24.06(1) requires a court to look at the “circumstances of [the] matter” (at para 34).

Accordingly, the values of timeliness and proportionality must be considered in the exercise of the discretion under r 24.06(1). To do otherwise is to ignore

section 94 of the KB Act , rr 1.04(1) and 70.02.1 of the KB Rules , and this Court’s recent pronouncements on the importance of expeditious civil justice in cases involving delay such as Ali and Buhr . [ 44 ] The difficulty I have with the judge’s position is that it would create a formulaic rule as to when an abuse of process arises which is contrary to traditional understanding of the common law doctrine being “unencumbered by specific requirements” ( Behn at para 40 ; see also Toronto (City) at paras 37-38 ).

The judge’s reasoning would, in effect, also turn dismissal of an action for delay from an interlocutory order to a final order, which runs against the weight of the common law, including this Court’s decision in Shura

which remains the leading precedent in this jurisdiction.

With respect, the judge’s logic is a bridge too far. [45] That said, while I accept the comments in Ruchotzke and Duncan that there may be a good reason to decline to exercisethe discretion to make a dismissal for delay a defence to a subsequent action pursuant to r 24.06(1), I would say that, regardless ofwhether the case arises in the General Division or the Family Division of the Court of King’s Bench, the discretion should be declinedonly for a reason of substance, not a speculative or fanciful reason (see River Ridge 2 Facility Inc v Manshield Construction LP et al,2023 MBKB 61 at paras 50-51).

As the judge correctly highlights in her decision, it must not be forgotten that, by the point in theproceedings where r 24.06(1) becomes relevant, the Court is already satisfied of the consequential decision that a claim should bedismissed for delay and not heard on its merits due to either rr 24.01(1) or 24.02(1). The Court must keep in mind that fairness is aboutmore than just a plaintiff’s interests no matter how serious the claim. A defendant is entitled to closure and should not be twice vexed bythe same matter without a good reason. Moreover, the proper administration of justice must be timely and orderly.

In most cases, it willbe contrary to the public interest for the same matter to be repeatedly litigated, even where the limitation period has not expired. [46] The defendants made the submission that, while the two-part procedure in Lenko remains good law, one aspect of thedecision has been overtaken by the modern approach to timely and proportionate civil justice.

In particular, the argument is advancedthat the Court’s comments that “the presumption . . . is that normally a dismissal does not act as a defence to a subsequent action” (atpara 7) (emphasis added) is suspect. [47] I would address the defendants’ assertion this way. In fairness to the Court in Lenko, all that is said in the disputedpassage is that, unless the discretion is exercised pursuant to what is now r 24.06(1), the effect of a dismissal of an action for delay is thatit is not a defence to a subsequent action.

That is not a controversial statement; it is a restatement of the common law as discussed inShura. The Court makes no comment about the relevant principles to the exercise of the judicial discretion as that was not at issue inLenko. As previously mentioned, Lenko is a case about the settlement of an order.

An unrepresented plaintiff did not have anopportunity to review or consent to the form of the order which included a clause (with legal consequences against his interests) whichwas not pronounced by the Court. [48] As was said in Glenwood Label & Box Mfg Ltd v Brunswick Label Systems Inc et al, 2019 MBCA 12, “unreasonabledeparture from the expected standard of proportionate, timely and cost-effective civil litigation” will not be tolerated lightly (at para 5).

The judge was correct to the extent that, absent a reason of substance, the failure to exercise the discretion under r 24.06(1) to make thedismissal of a plaintiff’s action for delay a defence to a subsequent action would undermine the purpose of rr 24.01 and 24.02 in weedingout inactive cases and addressing complacency in advancing civil actions. The architecture of rr 24.01 and 24.02 on the merits ofdismissal build in a number of safeguards to ensure that essential justice is done in deciding whether the action should be dismissed fordelay.

Therefore, the discretion under r 24.06(1) must be exercised mindful of and consistent with the determination under either rr24.01(1) or 24.02(1). Is KB Rule 24.06(1) a Drafting Error? [49] Finally, in my respectful view, I am not persuaded that r 24.06(1) may be some form of “oversight” (at para 36) by thedrafters. [50] The normal rules of statutory

interpretation apply to the

interpretation of a rule of court as it has the legal status of aregulation (see Buhr at para 32; sections 1-2 of The

Interpretation Act, CCSM c I80; and section 93(2) of the KB Act). The starting pointis that there is a presumption of perfection in respect of enacted legislation (see Morguard Properties Ltd et al v City of Winnipeg, (SCC), [1983] 2 SCR 493; and R v Mclntosh, (SCC), [1995] 1 SCR 686 at paras 26-29, 34-38).

It should beassumed that legislative text is accurate, well drafted and not a slip of the pen unless the words chosen by the drafter are “meaningless,contradictory, or incoherent, . . . or . . . the provision as drafted . . . leads to a result that cannot have been intended” (Ruth Sullivan, TheConstruction of Statutes, 7th ed (Toronto: LexisNexis, 2022) at 365). [51] Sections 91 to 93 of the KB Act set out the procedure and rigorous consultation process for the enactment andamendment of the KB Rules.

In Canadian National Railway Company v Huntingdon Real Estate Investment Trust et al, 2009 MBQB232, Beard J (as she then was) explained the process this way (at para 17): . . . [Rules were] enacted by a statutory rules committee after significant consultation with members of the legal profession and with theconsent of the Minister of Justice, and there is a statutory procedure in place to amend the rules that requires the approval of that samestatutory rules committee and the Minister of Justice. . . . [52] Rule 24.06(1) has a long history and a clear rationale.

The objective of the provision is to address the effect of adismissal of an action for delay and potentially bring closure to a claim where there has been no final determination on the merits whereit is in the interests of justice to do so.

As I have said previously, the rule does not undermine timely and proportionate civil justiceprovided those principles are properly considered in the exercise of discretion pursuant to the rule. [53] After the required procedure and consultation process, the drafters of r 24.06(1) retained that provision as part of the“overhaul” of the dismissal for delay amendments to the KB Rules effective January 1, 2018 (Buhr at para 33). As part of theamendment process, the prior rule was renumbered to become r 24.06(1) but the language of the rule remained unchanged.

To me, thatdecision can only be reasonably taken to be an intentional decision of the drafters. Put another way, the presumption of perfection hasnot been displaced.

I agree, therefore, with the comments in Ruchotzke to the effect that the retention of r 24.06(1) after the rules wereamended effective January 1, 2018 was not an oversight or some other drafting error. [54] In my respectful view, there is nothing about the ordinary meaning of r 24.06(1), the modern approach to statutoryinterpretation or the context of the provision generally that supports the judge’s comment that the inclusion of r 24.06(1) to the ruleamendments effective January 1, 2018 may have been an “oversight” by the drafters (at para 36). Conclusion

[55] In

summary, I am persuaded that the judge erred in law in her

interpretation of r 24.06(1). Both the master and thejudge conducting the fresh hearing on the appeal of the master’s order were required to consider whether the discretion under the ruleshould be exercised to order that the dismissal of the plaintiff’s action for delay would be a defence to a subsequent action.

Remedy [56] The plaintiff says the allegations in his claim are serious, there is no limitation period barring his claim of historicsexual abuse and the defendants adduced no evidence as to prejudice to rebut what he says is the presumption that a dismissal for delayis without prejudice save that the second action may be stayed until the costs of the dismissed action have been paid (see r 24.06(2)). [57] The plaintiff argues that no order pursuant to r 24.06(1) barring a subsequent action should be made. I disagree.

In myview, the circumstances of the matter are such that the result reached by the master was inevitable (see Hon Roger P Kerans & Kim MWilley, Standards of Review Employed by Appellate Courts, 2nd ed (Edmonton: Juriliber, 2006) at 252, 274-85). [58] The nature of the action is serious and of moderate complexity. At the core of the claim is the allegation that, overseveral years (1994 to 1996 and 1999 to 2000), H.T. sexually assaulted the plaintiff in unspecified ways.

It is alleged that H.T. alsosexually assaulted another individual and the plaintiff wishes to introduce that similar fact evidence as part of the trial of his claim. [59] In their statement of defence, in addition to denying the allegations, the defendants assert that, except for the sexualassault and battery allegations against H.T., the rest of the claim is statute barred.

The fact that the limitation period for recommencingthe action has not expired is a relevant factor to weigh in consideration of the discretion under r 24.06(1) as to the effect of the dismissal(see Nolasco (Next friend of) v Chang, 1995 CarswellMan 307 at para 23 (QB)). [60] There is no question that the nature of the action here and the problems arising from litigation over historic sexualabuse are important contextual factors for assessing the progress of such an action once it has been commenced (see Henderson vKenora-Rainy River Districts Child & Family Services, 2022 ONCA 387 at para 13). [61] However, the fact that the plaintiff’s claim is not statute barred by a limitation period to advance his action for historicsexual abuse is not a “free pass on compliance” with the rules of court once the action is started (RA v RDS, 2012 ONSC 3907 at para 36;see also Henderson at paras 11-14 ).

The question of ensuring essential justice in dealing with a question of delay is always about thebalance between the interests of the plaintiff and the defendant and the integrity of the system as a whole. The fact that there is nolimitation period to bar recommencement of the dismissed action is relevant but not determinative. [62] While the plaintiff has significant legal issues in Toronto, there is nothing about his personal circumstances thatprevented him from moving his claim along in Manitoba (see Chang at para 26). Indeed, he chose to file a claim while in the midst ofthose legal issues.

In the modern era, many issues respecting the discovery or trial processes can be facilitated through remoteappearance technology if necessary. It should also be noted that the plaintiff has been represented by local counsel in relation to hisclaim against the defendants since its inception. [63] However, what makes the situation overwhelming against the plaintiff—to make the result reached by the masterinevitable—is that he made no effort whatsoever to drive the case forward for almost four years after the statement of defence was filedand served which was his obligation.

As noted in Tregobov v Paradis et al, 2017 MBCA 60, leave to appeal to SCC refused, 37727 (1February 2018), “The plaintiff drives the case and the defendants cannot simply walk away” (at para 28). A plaintiff does not have theunilateral right to file an action, put it on ice and reactivate it when it is convenient. [64] The plaintiff’s argument that the defendants adduced no evidence of prejudice before the master or the judge is notconvincing. Prejudice is inherent in long and unexplained delay (see Ali at paras 24-25).

Fairness requires that, once an accusation isformally made in a court filing, a defendant is entitled to have the action against them dealt with in a reasonable length of time (seeHughes v Simpson-Sears Ltd (1988), (MB CA), 52 DLR (4th) 553 at 556-57 (Man CA)). [65] The innovation of r 24.02(1) is that, if its conditions are met, an action “must” be dismissed for delay; there is nojudicial discretion to conclude otherwise.

The drop-dead rule creates a mechanism to provide justice for both parties while, at the sametime, ensuring the overall integrity of the civil justice system as a whole (see Buhr at paras 33-35).

It would be an odd state of affairs, toput it mildly, if a defendant is not required to adduce evidence of prejudice to have an action against them dismissed pursuant tor 24.02(1) (if the statutory conditions are satisfied) as prejudice is presumed by law to be inherent, but failing to adduce evidence ofprejudice places the defendant at risk of having the action recommenced against them as no order would be made under r 24.06(1) as tothe effect of the dismissal on a subsequent action. [66] This leads me to the conclusion that, in exercising the discretion under r 24.06(1), the Court should not revisit or departfrom its findings regarding prejudice whether the dismissal for delay is because of either rr 24.01(1) or 24.02(1).

Leaving aside the factthat such a process is disproportionate, to do otherwise is to risk duplicative proceedings or potentially inconsistent results which the lawdoes not permit (see Danyluk v Ainsworth Technologies Inc, 2001 SCC 44 at para 18). [67] The facts here speak for themselves. The individual defendants faced serious allegations of wrongdoing made by arelative that impugn their character.

They promptly filed and served a statement of defence and their lawyer inquired with counsel forthe plaintiff as to whether the claim would be pursued as there were procedural issues to be resolved at the outset of proceedings as theplaintiff was not a resident of Manitoba. That inquiry was never answered. The plaintiff did nothing to advance his claim.

The breachof the drop-dead rule by the plaintiff—r 24.02(1)—provides a basis to say that the defendants have suffered prejudice from the plaintiff’sdelay in advancing his action. [68] The situation here is not one of mere delay but of warehousing; that is, the issuing and maintaining of proceedings foran extended period with no present intention of pursuing the proceedings save possibly at some unspecified future date of convenience tothe plaintiff.

That practice leads to “stale proceedings which bring the litigation process into disrespect” (Arbuthnot Latham Bank Ltd vTrafalgar Holdings Ltd (1997), [1998] 2 All ER 181 at 192 (CA (Eng))).

[ 69 ] Although no deference is owed to the result reached by the master, I see no principled basis here to exercise an independent discretion. The fact that the plaintiff did absolutely nothing on his claim in the almost four years after a statement of defence was filed and served is fatal; enough is enough. [ 70 ] The result the master reached strikes me as inevitable mindful of the relevant factors applicable to the exercise of discretion under r 24.06(1) and, in particular, the importance of proportionate, timely and cost-effective litigation to ensure essential justice is done.

There is no reason of substance such that the dismissal for delay should not be a defence to a subsequent action. This is exactly the type of situation that, while the allegations are serious, the total complacency displayed in prosecuting the claim gives good reason as to why the litigation must end and relitigation of the claim must be prevented despite there being no decision on the merits. [ 71 ] In

summary, despite the legal error of the judge as to her

interpretation of r 24.06(1), there is no principled reason to exercise an independent discretion as to the result reached by the master. Disposition [ 72 ] In the result, I would dismiss the appeal with one set of costs in favour of the defendants. JA I agree: JA I agree: JA