Saskatchewan Crop Insurance Corporation Appellant (Plaintiff) v. Glenn McVeigh, Grant Lyle Jewell,, 2018 SKCA 76

Court of Appeal for Saskatchewan Docket: CACV3037 Citation: Saskatchewan Crop Insurance Corporation v McVeigh , 2018 SKCA 76 Date: 2018-09-18 Between: Saskatchewan Crop Insurance Corporation Appellant (Plaintiff) And Glenn McVeigh, Grant Lyle Jewell, Brent Everett McVeigh and Dalton Beverly Jewell Respondents (Defendants) Before: Richards C.J.S., Caldwell and Schwann JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Chief Justice Richards The Honourable Mr.

Justice Caldwell On Appeal From: 2017 SKQB 52 , Saskatoon Appeal Heard: October 18, 2017 Counsel: Randall Klein for the Appellant Michael Owens for the Respondents Schwann J.A. I. Introduction [ 1 ] In 1998 the Saskatchewan Crop Insurance Corporation (SCIC) commenced separate actions against Glenn McVeigh, Grant Lyle Jewell, Brent Everett McVeigh and Dalton Beverly Jewell (collectively, the respondents) in which it was alleged that the respondents had improperly received crop insurance indemnities from SCIC based on misrepresentations made to it by them about their crop production and yield information.

SCIC sued to recover in excess of $1 million that had allegedly been improperly claimed by the respondents over the 1992 to 1995 time frame for crop losses it says did not occur. The respondents denied the allegations made against them in their statements of defence. [ 2 ] In addition to the civil actions commenced by SCIC, Grant Jewell and Brent McVeigh were charged with criminal fraud in relation to the same fact pattern that had been pled in SCIC’s statement of claim. The criminal matter proceeded to trial in 2001.

At the close of the Crown’s case, a Queen’s Bench judge granted a non-suit application that resulted in the charges being dismissed. [ 3 ] The separate civil actions were consolidated in 2006. [ 4 ] Apart from document disclosure, SCIC’s action had not appreciably progressed over the years.

This state of affairs eventually led to an application in late 2015 by the respondents pursuant to Rule 4-44 of The Queen’s Bench Rules and the inherent jurisdiction of the Court of Queen’s Bench for an order dismissing SCIC’s claim for want of prosecution (delay application). [ 5 ] The Chambers judge had little difficulty concluding that a delay of 19 years was inordinate in nature, that all but 4 years of the delay was inexcusable and that it was not in the interests of justice for the action to continue.

He exercised his discretion in favour of dismissing the claim in its entirety ( Saskatchewan Crop Insurance Corporation v McVeigh , 2017 SKQB 52 [ Chambers decision ]). SCIC appeals from that decision and from two fiats that had been made by other Queen’s Bench judges leading up to the delay application. [ 6 ] For the reasons expressed below, I have concluded the appeal must be dismissed. II. OVERVIEW OF THE EVidence AND PROCEDURAL HISTORY [ 7 ] This appeal is best understood in light of the procedural history of SCIC’s action.

A synopsis of that history was set out in the Chambers decision and is repeated for ease of reference: [7] Following is a brief chronology of that which transpired between the claims being issued and today. The action began long before the new Queen’s Bench Rules came into effect and, for consistency, I will reference that which were “examinations for discovery” under the former Rules as “questioning”. 1998 The statements of claim were issued and served on the defendants. Two of the defendants were criminally charged with fraud in relation to their role in the claims for crop insurance indemnities.

1999 The first SCIC lawyer, J.P Ellson of Olive Waller Zinkhan & Waller, requested that the defendants file statements of defence. Mr. Owens, who was the lawyer for the defendants who were charged criminally and for all defendants in the civil actions, refused, saying he would bring an application to stay the civil proceeding until the criminal prosecution was complete. 2000 Mr. Owens did not bring an application to stay the civil proceedings and served statements of defence. At Mr. Owen’s request, Mr. Ellson agreed to postpone mandatory mediation. 2001 The criminal charges were dismissed. Mr.

Ellson brought a motion to compel the RCMP Commercial Crime Unit to produce documents from the criminal investigation. The RCMP consented but Mr. Owens took the position that only 58 of the RCMP’s 300 documents ought to be disclosed because the rest were either irrelevant or could breach the rights of third parties who are mentioned in the documents, contrary to the Privacy Act , RSC 1985, c P-21 . The parties participated in mandatory mediation. 2002 After several court appearances, there was an order for the production of the RCMP investigative files.

Defendant Dalton Jewell passed away. 2003 SCIC’s counsel did not communicate with Mr. Owens. SCIC’s affidavit in this application says that its counsel was gathering RCMP documents. 2004 No correspondence to or from either lawyer. - - 2005 There was no activity for the first 10 months of the year. In November, Mr. Ellson served Mr. Owens with SCIC’s statement as to documents, asked Mr. Owens for the same from the defendants and that he provide him with dates for questioning of the defendants. 2006 The five actions were consolidated.

The plaintiff obtained an order requiring the defendants to serve their statement as to documents. The defendants complied. Mr. Owens informed Mr. Ellson that he was unable to set dates for questioning because his

schedule was booked with Provincial Court appearances into July. Mr. Ellson responded, saying that he would take out appointments setting dates for questioning if he had to. He did not take out appointments and the lawyers agreed to a date for questioning – February 23, 2007. 2007 In January, Mr. Ellson informed Mr. Owens that he wanted to set more dates for continued questioning. He suggested five consecutive days in a week in August and said that if the defendants did not agree he would take out appointments to require their attendance. Mr.

Owens replied that he was only able to offer four days in that week because he was representing a client in a Provincial Court trial on one of the days and, “[o]therwise please feel free to serve us with whatever appointments you deem are necessary along with the appropriate conduct money.” No appointments were taken out and, for reasons not explained, no questioning took place in August. Just prior to the agreed-upon February 23 date for questioning, Mr. Ellson informed Mr. Owens that he would not be in a position to conduct the questioning “due to unforeseen circumstances”. He did not elaborate. Mr.

Owens and Mr. Ellson then agreed on two dates in May for questioning. At about this time, Fred Zinkhan, also of Olive Waller Zinkhan & Waller, took over carriage of the file. The questioning scheduled for May did not proceed because the correspondence confirming the dates had been misplaced in Mr. Zinkhan’s office. There was then some to’ing and fro’ing about future dates for questioning. Mr. Zinkhan wanted dates in July, August and September. Mr. Owens said that between his

schedule and demands on the defendants during harvest, he could not accommodate those dates. He offered six dates in December and asked that Mr. Zinkhan confirm dates quickly while they were still available. As time passed, Mr. Owens indicated that only two of the December dates remained available and he provided a further six dates in January 2008. Twice during these discussions, Mr. Zinkhan said he would take out appointments to require the defendants to attend for questioning on earlier dates. He did not and no questioning was conducted.

Because of changes in management, SCIC says, it changed law firms, and was now represented by MacDermid Lamarsh. Gordon McKenzie initially had carriage of the file. Mr. McKenzie averred that he spent the next two years reviewing the “3,000 plus” documents in their possession and obtaining instructions from SCIC as to how to proceed. 2008 No correspondence to or from either lawyer. 2009

No correspondence to or from either lawyer. 2010 Mr. McKenzie did not contact Mr. Owens until October when he asked Mr. Owens for another copy of the defendants’ documents, as they were “possibly missing” from his file (they were later found). Mr. Owens did as requested. Mr. McKenzie also indicated that he would like to move the matter forward to “the next step in this process, being [questioning]” and informed Mr. Owens that SCIC’s proper officer for questioning was Ernie Quintal. 2011 No correspondence to or from either lawyer. 2012 By this time, Mr. Quintal had left SCIC.

Dwayne Stangler was appointed as the new proper officer. In an affidavit filed in this application, Mr. Stangler averred that he “spent an abundance of time in 2012 and 2013 familiarizing himself with the Consolidated Action and the now over 3,000 documents.” Mr. McKenzie retired and in January Randy Klein, also of MacDermid Lamarsh, took over carriage of the file. He asked Mr. Owens for dates for questioning in March or April and warned that he had drafted appointments that he would serve if there was no agreement as to dates. Mr. Owens did not respond and Mr.

Klein did not serve appointments. 2013 No correspondence to or from either lawyer. 2014 In January, Mr. Klein wrote to Mr. Owens that it was “imperative that this matter be moved forward to [questioning] without any further delay,” but, “as this file will take a great deal of time to review”, he suggested that questioning take place a year hence, in January 2015. A little later, Mr. Klein wrote to Mr.

Owens, “as the file is very large and will take some time to review, we are looking at dates [for questioning] in March, 2015.” 2015 Plaintiff’s counsel located copies of the defendants’ documents it had misplaced several years earlier. In May, Mr. Klein served three of the defendants with appointments for two days of questioning in November. The questioning never took place because in September Mr. Owens informed Mr. Klein that he was going to bring an application to have the claim dismissed because of delay. In October, at SCIC’s behest, Justice G.

Allbright was appointed by the Chief Justice to be the case management judge. In December, the defendants initiated the present application for delay. 2016 Both parties filed affidavits in support of their positions. To buttress his argument that the delay had prejudiced him, defendant Grant Jewell averred that his documents and documents of his now deceased father, defendant Dalton Jewell, had been destroyed in floods in 2002 and 2015. Mr. Jewell was questioned on his affidavit. From my review of the transcript of questioning, it does not appear that many, if any, relevant documents were lost in the floods.

In June, Smith J., on the application of the defendants, struck two affidavits filed by the plaintiffs and 20 paragraphs of other of its affidavits. The defendants’ application to dismiss for delay was finally heard in late October.

III. decision of THE Chambers Judge [ 8 ] With the procedural history of this action in mind, the Chambers judge proceeded to assess the respondents’ application through the lens of the three-part test established in International Capital Corporation v Robinson Twigg & Ketilson , 2010 SKCA 48 , 350 Sask R 160 [ ICC ]. [ 9 ] On the first prong of the test, SCIC conceded that a nearly 19-year delay was inordinate in length ( Chambers decision at para 10). The Chambers judge then turned his mind to the second prong of the ICC test, that is, whether the delay was excusable.

The overarching argument advanced at this stage of the inquiry concerned alleged delay tactics and related conduct of the respondents’ legal counsel, Michael Owens. SCIC highlighted examples of Mr. Owens’ unresponsiveness and uncooperative behaviour to demonstrate how it substantially contributed to delay. This, SCIC said, should bear significantly in the assessment of whether the overall delay was excusable. [ 10 ] The Chambers judge partially agreed with this submission. He found Mr. Owens responsible for three to four years of delay, drawing specific reference to the fact that Mr. Owens: (

i) did not file statements of defence for two years after being served with the statements of claim; (ii) threatened to bring an application to stay proceedings while the criminal trial ran its course; (iii) opposed release of relevant RCMP documents; (iv) did not co-operate in setting a date for mandatory mediation; and (

v) was unresponsive to correspondence (para 15). [ 11 ] That said, the Chambers judge found it “more difficult to place the blame solely on the defendants for the delay after the RCMP document issue was sorted out in mid-2002” (at para 18), concluding that delay was almost exclusively attributable to SCIC from 2002 until October 28, 2016, when the delay application was heard. [ 12 ] The Chambers judge summarized his view of the evidence and the inferences he drew from it. In relation to SCIC’s threat to take out appointments compelling the respondents’ attendance for questioning, the Chambers judge commented that SCIC “made this

threat on no less than eight occasions between 2006 and 2014. Most of the threats were followed by lengthy periods of time during which SCIC’s counsel did not contact defendants’ counsel – there was no follow-up or taking out of appointments – just ephemeral letters and empty threats for eight years” (at para 25). [ 13 ] SCIC had also argued the complexity of the claim significantly contributed to delay. The Chambers judge did not see it that way: [23] ...

SCIC claims that the defendants understated the amount of grain they produced in the crop years 1992-93 to 1995-96 and wrongly received indemnities because of their misrepresentations. This is pretty straightforward – the defendants did what SCIC says they did, or they did not.

Proving its claim did not involve scouring the countryside (literally) for more evidence: SCIC’s documents state that in 1996 it did its own “extensive and thorough investigation of the defendants’ farm operation, bins, deliveries, etc.” In addition, the RCMP, and presumably the prosecutor, marshalled the available evidence for the criminal trial back in 2001.

One could reasonably assume that most or all of the legwork had been done. [ 14 ] Taking into account the nature of the claim, the reasons expressed by SCIC for the delay and the diligence (or lack thereof) with which SCIC had pressed its claim, the Chambers judge had little difficulty concluding SCIC had failed to satisfy him that the delay was excusable.

He concluded his analysis on this part of the ICC test by assigning blame to the respondents for four years of delay and then said: “After that, I find, the plaintiff’s excuses ring hollow and its attempts to fob the blame for delay off onto the defendants to be disingenuous” (at para 28). [ 15 ] The final prong of the ICC test assessed by the Chambers judge was the multi-faceted “interests of justice” consideration.

As to the first of these factors – prejudice to the defendant – the Chambers judge concluded that, because of the inordinate passage of time, the respondents were “hobbled” and “unable to properly defend against the plaintiff’s claim”. It had been between 21 to 26 years since the alleged misconduct had occurred, thus the pronounced passage of time would have had some effect on witnesses’ memory. He took particular note of the fact one of the respondents had died, another was 85 years old with suspected cognitive difficulties, and six “key” witnesses had also passed away.

In sum, he found this factor strongly favoured dismissal of the claim (paras 31–34). [ 16 ] As to the length of the inexcusable delay, the Chambers judge reiterated his earlier findings (para 35). He also found the litigation to be “in its infancy” insofar as it had not progressed beyond the exchange of documents stage and none of the parties had been questioned (para 36). [ 17 ] The Chambers judge assessed the impact of the inexcusable delay from the perspective of intervening extra-judicial actions that had been taken by SCIC.

The Chambers judge commented on what he described as money that had been “scooped” by SCIC from relatives of the respondents pursuant to s. 42 of The Financial Administration Act, 1993 , SS 1993, c F-13.4.

While the Chambers judge did not rule on SCIC’s legal right to rely on s. 42 , he said SCIC’s actions nonetheless demonstrated how the respondents could be deprived of money necessary to make their farming operation profitable (paras 37–40). [ 18 ] The Chambers judge agreed with SCIC’s submission that the respondents’ failure to press for movement on this file was an appropriate consideration that mitigated against dismissal of the action.

That said, citing Morsky Construction Ltd. v Nickle Lake (Regional Park Authority) , 2016 SKCA 110 , 485 Sask R 32 [ Morsky Construction ], he found this factor only marginally weighed against striking the claim (para 41). [ 19 ] As to the reasons offered for delay, the Chambers judge said it was not simply the fact SCIC took too long to make little progress, but “it let the action lie dormant several times for several years each time” (at para 42). [ 20 ] The next factor taken into account by the Chambers judge was the role of SCIC’s counsel in causing the delay.

On this point, he found it interesting that none of the four lawyers who had represented SCIC over the 19 years had assumed any share of the blame. From this, the Chambers judge inferred they were merely following their client’s instruction and that “it was SCIC that allowed the claim to languish” (at para 43). As to the suggestion that Mr. Owens had been an obstructionist and had used the “Libertarian” approach to litigation (i.e., used The Queen’s Bench Rules to thwart the progression of a valid claim), the Chambers judge found no evidence to support this argument. He said Mr.

Owens had acted on nothing other than his clients’ instructions and that, for the most part, Mr. Owens had not been especially obstructive, rather “he simply let the plaintiff do nothing” (at para 44). The Chambers judge placed little stock on Mr. Owens’ failure to respond to some of the correspondence he had received from SCIC’s counsel because they had stated that if Mr. Owens did not provide dates for questioning, appointments would follow. Mr. Owens’ lack of response invited them to do just that. Overall, the Chambers judge found Mr.

Owens’ failure to respond to some of the correspondence “ de minimis in the context of this nearly 19-year-old action” (at para 45). [ 21 ] The final factor taken into account was the broad “public interest” consideration. On this point, the Chambers judge, adopting the trial decision in Agri Resource MGT. 2001 Ltd v Saskatchewan Crop Insurance Corp ., 2016 SKQB 254 , 60 CCLI (5th) 128 [ Agri Resource MGT. QB ], concluded there was a clear public interest in favour of having crop insurance fraud claims against farmers addressed in a timely manner.

Quoting from ICC , the Chambers judge reasoned substantial delay in this matter would “undermine public confidence in the justice system as a whole” (at para 47). [ 22 ] Balancing the numerous ICC factors in light of the evidence before him, the Chambers judge had little difficulty concluding that the appropriate exercise of his discretion favoured dismissing SCIC’s action for want of prosecution.

SCIC appeals from that decision. [ 23 ] SCIC also appeals from two preliminary fiats that had been rendered by different Queen’s Bench judges on procedural and evidentiary matters prior to the delay application being heard. IV. Jurisdiction and standard of review

[24] The appeal from the Chambers decision is brought pursuant to s. 7(2)(

a) of The Court of Appeal Act, 2000, SS 2000, c C-42.1,on the footing that the decision to strike SCIC’s action was final in nature and, as such, leave to appeal was not required. [25] As mentioned, SCIC also appeals from two preliminary fiats that had been made by Allbright J. and Smith J., respectively,under the umbrella of a single appeal from the decision on the delay application. SCIC’s position is that both fiats are decisions“incidental” to the delay application insofar as neither disposed of the matter in issue. Accordingly, SCIC asserts a right of appeal unders. 9(5) of The Court of Appeal Act, 2000.

For purposes of clarity and without deciding the point, the impugned fiats will be referred to as“incidental decisions” in this judgment. [26] All three decisions under appeal are discretionary in nature and entitled to a measure of deference, reviewable in accordancewith recognized principles applicable to these types of decisions.

Huerto v Salte, 2015 SKCA 21, 457 Sask R 14 [Huerto], an appealfrom a decision striking a claim for abuse of process, described the exercise of discretionary power by a chambers judge in this fashion: [2] … In an appeal of this nature, which is to say an appeal from the exercise of judicial discretion, we must bear in mind that theChambers judge’s power under Rule 173 to strike a claim is a discretionary power; and, as such, the power falls to be exercised as theChambers judge thinks fit, having regard, of course, for such criteria as bear upon the proper exercise of that power: Rimmer v Adshead,2002 SKCA 12 at para 58, [2002] 4 WWR 119. [27] Thus, an appellate court should only interfere if a chambers judge erred in principle, misapprehended or overlooked materialevidence, took irrelevant factors into consideration, failed to act judicially or reached a decision that was so clearly wrong that thedecision will result in an injustice (Saskatoon Trading Company Limited v Hergott, Duval, Stack and Partners, 2013 SKCA 42 at para18, 362 DLR (4th) 67 [Saskatoon Trading Company]; B.(D.) v C.(M.), 2001 SKCA 9, 203 Sask R 308; Agri Resource Mgt. 2001 Ltd. vSaskatchewan Crop Insurance Corp., 2017 SKCA 35 at para 17, [2017] 8 WWR 215, leave to appeal to Supreme Court refused, [Agri Resource Mgt.]; ICC at para 19). [28] The overarching question posed on this appeal is whether the Chambers judge erred in dismissing SCIC’s claim for want ofprosecution.

Although SCIC raised a number of errors in principle, broadly speaking, the preponderance of arguments advanced by SCICrelate to factual findings made by the Chambers judge and the inferences drawn by him, which SCIC argues were not reasonablysupported by the evidence. These errors, it says, caused the Chambers judge to improperly weigh the evidence and, as a result,incorrectly balance the ICC factors. [29] Questions of law are subject to a correctness standard of review (Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235[Housen]).

Where the grounds of appeal invoke questions of fact or questions of mixed law and fact (absent where an extricable questionof law is raised), the palpable and overriding error standard of review applies (Housen; Nelson (City) v Mowatt, 2017 SCC 8, [2017] 1SCR 138 [Nelson]; Hryniak v Mauldin, 2014 SCC 7, [2014] 1 SCR 87). [30] The Supreme Court of Canada in Nelson confirmed the need for a deferential approach to findings of fact and inferencesdrawn from findings of fact on affidavit evidence. On this point, the Court said: [38] ….

It is not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence. Absentpalpable and overriding error — that is, absent an error that is “plainly seen” and has affected the result — an appellate court may notupset a fact-finder’s findings of fact (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 6 and 10; see also H.L. v.Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 55).

The standard of palpable and overriding error applies withrespect to the underlying facts relied upon by the trial judge to draw an inference, and to the inference-drawing process itself (Housen, atpara. 23)….. [31] Justice Caldwell of this Court in Deren v SaskPower, 2017 SKCA 104, explained the concept of palpable and overriding errorby reference to Benhaim v St-Germain, 2016 SCC 48, [2016] 2 SCR 352, where the Supreme Court said: [46] … [38] It is equally useful to recall what is meant by “palpable and overriding error”. Stratas J.A. described the deferential standard asfollows in South Yukon Forest Corp. v.

R., 2012 FCA 165, 4 B.L.R. (5th) 31, at para. 46: Palpable and overriding error is a highly deferential standard of review ....”Palpable” means an error that is obvious. “Overriding” meansan error that goes to the very core of the outcome of the case. When arguing palpable and overriding error, it is not enough to pull atleaves and branches and leave the tree standing. The entire tree must fall. [39] Or, as Morissette J.A. put it in J.G. v. Nadeau, 2016 QCCA 167, at para. 77 , [TRANSLATION] “a palpable and overridingerror is in the nature not of a needle in a haystack, but of a beam in the eye.

And it is impossible to confuse these last two notions.” V. ISSUES [32] SCIC identified over 30 separate grounds of appeal in the notice of appeal it filed with this Court. SCIC, however,consolidated its primary grounds of appeal around the following broad issues in its factum: (

a) Did Allbright J. err by deferring SCIC’s contempt and spoliation application until after the delay application had been heard? (

b) Should the affidavit material struck by Smith J. have been considered by the Chambers judge who heard the delayapplication? (

c) Did the Chambers judge overlook or misapprehend material evidence and disregard material facts to a degree that results inan error of law? Did he err in law in his

interpretation and application of the ICC test?

[ 33 ] At the time of the appeal hearing SCIC sought to introduce a new argument that had not been heard by the Chambers judge. It says the Crown prerogative enshrined by the common law maxim nullum tempus occurit regi dictates that time does not run against the Crown, which, in practical terms means its claim cannot be dismissed for want of prosecution and the relief sought by the respondents is effectively barred. VI. ANALYSIS A.

Did Allbright J. err by deferring SCIC’s contempt and spoilage application until after the delay application had been heard? [ 34 ] The first of the two incidental decisions was made by Allbright J. on May 17, 2016. [ 35 ] To properly frame this issue for appeal purposes, an understanding of the backdrop to this fiat is essential. On October 14, 2015, Allbright J. had been appointed as the case management judge for this matter at the behest of counsel for SCIC. By this point in time, SCIC knew the respondents had intended to bring an application to strike its action for undue delay.

Thereafter, a number of case management conferences took place involving legal counsel for the parties and Allbright J. in his role as case management judge. On March 10, 2016, Allbright J. granted a motion brought by SCIC to have Grant Jewell examined on an affidavit he had sworn in support of the respondents’ delay application. That examination proceeded.

Case management was reconvened in May 2016 in response to a letter from SCIC’s then counsel, Randall Klein, who had expressed a desire to apply for an order finding the respondents in contempt for their failure to comply with a previous 2006 order that had been made with regard to document disclosure and for the contempt application to proceed by viva voce hearing. [ 36 ] Justice Allbright issued a “fiat” on May 17, 2016, expressing concern about the timing of Mr. Klein’s motion.

He stated: “It is this expanded aspect of the litigation which gives me cause to pause and reflect upon the fundamental purpose for which the case management was directed” (at para 5). He signalled that Mr. Klein’s application ought to be held in abeyance pending the hearing and disposition of the delay application as the delay application could render Mr. Klein’s motion moot.

Justice Allbright went on to state that he was “preliminary of the view that the defendants’ application to strike … be heard as the next step in the process” (at para 8). [ 37 ] Importantly, and as reflected in his fiat, Allbright J. did not actually rule on Mr. Klein’s request to have his application precede the delay application. The following passages from the impugned fiat support my conclusion: [9] … some structure must be directed as to the proceedings, and I have chosen to author this fiat to provide counsel with my preliminary views as to how the matter is to proceed. [10] … I am requesting that Mr.

Metivier, the Local Registrar, convene a telephone conference call with counsel and myself to further discuss the matter . … … [12] I request that counsel consider their positions in light of my comments and we will discuss the matter further … (Emphasis added) [ 38 ] Justice Allbright concluded his fiat with the words “[d]irection accordingly”, and not the usual “order accordingly” language customarily used when a court order is made. [ 39 ] It is obvious from the way in which he couched his May 17, 2016, fiat that Allbright J. was merely reflecting his preliminary thoughts about the timing of SCIC’s request to have the contempt application heard in relation to the delay application.

In this respect, I am satisfied that Allbright J. merely offered guidance and direction with regard to the timing of the proposed application, which was completely appropriate for him to do so in his role as case management judge. More to the point, for purposes of this appeal Allbright J. did not rule on whether the contempt application should be heard before the delay application and he most certainly did not rule on the substantive application. In short, no binding order had been made by Allbright J. on May 17, 2016. [ 40 ] My review of the fiat and court file reveals nothing that would have prohibited Mr.

Klein from having his application set down for hearing and, at the very least, seeking a ruling from Allbright J. as to when it should be heard. However, for whatever reason, Mr. Klein chose not to do so. [ 41 ] With this, I return to s. 9(5) of The Court of Appeal Act, 2000 , which permits an incidental “decision” to be appealed in concert with the appeal from the matter in issue. The word “decision” is defined by s. 2 of the Act to include “any judgment, order, decree, verdict or finding”.

Having regard to the content of Allbright J.’s “direction”, though cast in the format of a fiat, I am not persuaded that it meets the definition of “decision” contemplated by the Act and is thus not capable of being appealed to this Court. [ 42 ] In my opinion, the May 17, 2016, fiat was not a “judgment, order, decree, verdict or finding” and, therefore, is not a decision within the meaning of s. 9(5) . This means SCIC has no right of appeal from Allbright J.’s fiat of May 17, 2016.

This conclusion is a complete answer to this ground of appeal. [ 43 ] Quite apart from the jurisdictional issue, I see no substantive basis to overturn the fiat even if it was a decision capable of being appealed. The argument here, as I understand it, is that if the contempt application had proceeded first, the outcome (which SCIC presumes would have been favourable to it) would have had a material impact on the Chambers judge’s analysis on the delay application. [ 44 ] The first and most obvious point to be made here is that, even if the May 17, 2016, fiat was a “decision”, it was discretionary

in nature, made by a case management judge on a procedural point. Rule 4-7(1) of The Queen’s Bench Rules empowers a casemanagement judge to “(

b) set or adjust dates by which a stage or a step in the action is expected to be completed and order the parties tocomply with the dates; ... and (

f) make any procedural order that the judge considers necessary.” [45] Generally speaking, the power exercised by a case management judge under Rule 4-7 is wide and attracts a high degree ofdeference.

Decisions made by case management judges will not be upset or reopened lightly given the standard of review and theobjectives underpinning the case management process, which is to provide judicial supervision of the litigation process (see: PanicciaEstate v Toal, 2012 ABCA 397, 71 Alta LR (5th) 411). [46] By the time Allbright J. had been appointed case management judge, SCIC knew the respondents intended to bring anapplication to strike the action for undue delay. This, and the protracted nature of this litigation, was the context facing Allbright J. whenhe first met with counsel on November 27, 2015.

The notes from the meeting with counsel and directions given to them were recordedon the file fly sheet and clearly reflect his view that the respondents’ delay application was “to be decided before any other steps aretaken as part of the Case Management process.” He directed that the delay motion be heard on January 14, 2016. [47] It is readily apparent from the above passage that the delay application was the first order of business. While Mr. Owensmade good on the court’s direction to have his application filed by December 15, Mr. Klein pressed for a deferral of that application untilhe could examine Mr.

Jewell on the affidavit he had sworn in support of the delay application. This led to Mr. Klein’s application tocross-examine Mr. Jewell, which Allbright J. granted subject to strict timelines. In so doing, Allbright J. made it abundantly clear to theparties that the delay application would not be derailed. In his fiat of March 10, 2016, he said: [16] I am of the view that the primary objective of case management at this stage is to have the proceedings advance. It is importantthat Mr. Owen’s motion to have the plaintiff’s claim dismissed for want of prosecution be heard as quickly as possible.

However, I ampersuaded on a balance of probabilities that there is some utility to the plaintiff conducting an examination of Grant Jewell on hisaffidavits, and I direct that to occur. [48] As mentioned above, Mr. Jewell was examined on his affidavit a month later and the results of that examination promptedMr. Klein to file his contempt application. Justice Allbright characterized SCIC’s application as a request that “triggered a new line ofinquiry beyond that which counsel and I had been discussing and contemplating” (May 17, 2016, fiat, emphasis added).

In the face ofthe contempt application, Allbright J. had this to say about “next steps” in the litigation: [5] It is this expanded aspect of the litigation which gives me cause to pause and reflect upon the fundamental purpose for which thecase management was directed. ... [7] I am appreciative of why the plaintiff might seek to do this, however I am of the view that this is a step to be held in abeyancepending the defendants’ application to have the plaintiff’s claim struck for want of prosecution pursuant to The Queen’s Bench Rules.The issue of whether there has been delay was in place before the substantive matters raised in Mr.

Klein’s correspondence. RichardsJ.A., now Richards C.J.S., very fully articulated the comprehensive test to be applied by a reviewing court in International Capital Corp.v Robinson, Twigg & Ketilson, 2010 SKCA 49 , 2010 SKCA49, 350 Sask R 160. [8] To that end, I am preliminarily of the view that the defendants’ application to strike the plaintiff’s statement of claim based upondelay be heard as the next step in the process, and that it be heard forthwith in chambers. The reason for my view in this regard is that ifthe motion is successful, the matters being contemplated by Mr.

Klein in his comprehensive recent correspondence become mute [sic].In the event that the claim is not so struck, then the issue raised by Mr. Klein becomes a relevant matter to consider. [49] In

summary, even if Allbright J.’s May 17, 2016, fiat was a “decision” and thus subject to appeal, it has to be examined fromthe perspective of what he was facing as case management judge at that time and with regard to the discretionary nature of his role.

Thus,in light of the way in which a possible contempt application was presented to Allbright J., the length of time the action had beenoutstanding, his wide mandate under Rule 4-7 to set dates by which a stage or step in an action is to be taken and to make necessaryprocedural orders, the discussions that ensued before him and the deferential standard of review, it is hard to see any error on the part ofJustice Albright.

Moreover, examining the effect of his decision for error in light of the results of the delay decision that was ultimatelyrendered by the Chambers judge, does not lead me to conclude that Allbright J. erred when he issued his fiat on May 17, 2016.Accordingly, I find no merit to this ground of appeal. B.

Should the affidavit material struck by Smith J. have been considered bythe Chambers judge in the context of the delay application? [50] The second impugned incidental decision was made by Smith J. on June 23, 2016, in response to an application brought by therespondents to strike various affidavits or portions of them that had been filed by SCIC in response to their delay application. [51] Justice Smith framed his analysis of the impugned affidavits around the ICC factors and considered what had transpiredprocedurally since 1999 relevant to the application.

As such, he reasoned that an examination of affidavit evidence that touched on themerits of either party’s case was largely irrelevant to the delay application. [52] Approached from a procedural perspective, Smith J. struck the affidavit of Staff Sergeant Timothy Jansen because itessentially canvassed the facts about the 2001 criminal case and on the whole tended to imply that the respondents had engaged incriminal activity. While Sgt.

Jansen’s evidence may have been appropriate and relevant at trial, Smith J. found it inappropriate andlargely irrelevant to the question of whether the action should be struck for want of prosecution. The June 6, 2016, affidavit of DwayneStangler was also struck since it was geared towards “big picture issues” faced by SCIC (it had outlined policy considerations thatimpact SCIC and the Court). Justice Smith did not, however, strike the other impugned affidavits, including an earlier affidavit sworn by

Mr. Stangler on May 10, 2016, and one sworn by Mr. Klein. He determined that all of the remaining affidavits dealt with procedural steps that had been taken by SCIC’s counsel and were therefore relevant to the Court’s analysis of the delay application. [ 53 ] SCIC argues Smith J. erred in striking the affidavits because they were relevant to some of the ICC factors. The affidavit of Sgt. Jansen, in particular, is said to shed light on the complexity of the file and how the respondents had allegedly hid documents that could have been evidence of fraud. SCIC contends the June 6 affidavit of Mr.

Stangler provides context to help explain the complexity of the claim, how this litigation is really “document based” and takes issue with whether the respondents’ witnesses really were “key” to their defence. The last error asserted by SCIC – an error in principle – is alleged to have occurred when Smith J. limited the evidence to “procedural matters”. [ 54 ] Turning to Mr. Stangler’s affidavit first, I note that only paragraph 43 touches on the “missing documents” issue. In my opinion, even if this was relevant to the issue of delay, it added very little since it merely stated Mr.

Stangler’s opinion, i.e., that he believes the respondents had not disclosed all of their documents. Generally speaking, opinion evidence is not admissible. In any event, paragraph 43 of Mr. Stangler’s affidavit simply refers back to his prior affidavit sworn on May 10, 2016, where this point was canvassed and which was not struck by Justice Smith. In my view, no prejudice would have resulted from striking the latter affidavit so far as the missing documents issue is concerned. [ 55 ] Neither did Smith J. err in relation to the portions of the Stangler affidavit that touched on the respondents’ witnesses.

The affidavit of Shawn Jacques sworn on January 6, 2016 (again, not struck), treads over much the same territory as Mr. Stangler did in his June 6, 2016, affidavit. Both affidavits take issue with whether the six respondent witnesses who had died were really “key” or essential to the respondents’ case and both go so far as to identify other potential witnesses for the benefit of the respondents. In this sense, I am satisfied the affidavit of Mr. Stangler that was struck was duplicative of Shawn Jacques’ affidavit.

For this reason alone, there is no obvious error. [ 56 ] Turning to the final argument about the proper legal framework for assessing delay applications, Smith J. correctly identified ICC as the “touchstone authority”. That decision directs a judge’s focus to procedural issues, the conduct of the parties in the litigation and broader considerations of the interests of justice. None of the ICC factors mandate an examination of the underlying merits of the statement of claim. While it is true Sgt.

Jansen’s affidavit would have shed some light on the overall complexity of the matter, the same can be said for the affidavit of Mr. Jacques, which was admitted. [ 57 ] For this Court to overturn Smith J.’s ruling, given the discretionary nature of the decision and in light of the arguments advanced, it must be persuaded that he acted on a wrong principle of law or overlooked or misapprehended material evidence. I see no such error. C. Did the Chambers judge err in law in his

interpretation and application of the ICC test? 1. Applicable principles of law [ 58 ] Pursuant to Rule 4-44 of The Queen’s Bench Rules , a defendant may apply to dismiss an action for want of prosecution. ICC continues to be the governing authority in relation to the principles that guide the exercise of judicial discretion under this Rule.

Thus, to succeed on an application to strike for want of prosecution, a defendant must show inordinate delay, that the delay was inexcusable and that notwithstanding the inordinate and inexcusable delay, it is not in the interests of justice for the claim proceed to trial ( ICC at para 17 (citing Allen v Sir Alfred McAlphine & Sons Ltd. , [1968] 1 All ER 543 at 561) ; Agri Resource Mgt. at para 15 ). [ 59 ] The second and third prongs of the ICC test contemplate a multifaceted analysis.

The second stage – whether the delay is excusable – takes into account the nature of the claim, the diligence with which the claim had been pressed by the plaintiff, and other reasons offered by the plaintiff as to why the matter had not progressed more quickly ( ICC at para 44 ).

Here, the court may take into account the defendant’s actions ( Saskatoon Trading Company at para 38 ), as well as the complexity of the matter with an eye to the length of time an action of that sort should reasonably take to proceed to trial ( Agri Resource Mgt. at para 57 ). [ 60 ] The final prong of the ICC test calls for the court to carefully consider whether it is in the interests of justice for the case to proceed notwithstanding the inexcusable delay. ICC identified eight non-exhaustive factors relevant to this part of the analysis. (See also: Agri Resource Mgt. at para 16 .) 2.

Did the Chambers judge err in his calculation of the length of the delay by ignoring the November 25, 2016, fiat? [ 61 ] The Chambers judge calculated the overall length of the litigation to be 19 years (1998 to date of application). In so doing, SCIC argues the Chambers judge failed to give effect to the November 25, 2016, fiat of Allbright J. in terms of how it impacted his global calculation of time.

The fiat in question reads: “Justice Allbright has directed the time frame of November 27, 2015, to present, where Justice Allbright has been dealing with the file, is not to be considered in the issue of delay”. [ 62 ] I agree with SCIC. Tallying the total length of the litigation at 19 years appears to have included the 11 months after the November 2015 fiat was made and was thus contrary to the terms of the fiat. [ 63 ] The Chambers judge obviously overlooked this prior ruling. He may have done so because SCIC appears to have conceded that “the nearly 19-year delay” was inordinate (at para 10).

In any event, this was a clear error of fact on the part of the Chambers judge. However, the error does not have a material effect on the overall ICC analysis: 18 years as opposed to 19 is still an inordinate period of time. Therefore, while the error may have been palpable, it was not overriding.

3. Did the Chambers judge err in assessing whether the delay was excusable? a. Disregard of material facts or misapprehension of the evidence [ 64 ] SCIC contends the Chambers judge failed to appreciate evidence that tended to show how Mr. Owens meaningfully contributed to delay, citing his failure to reply to correspondence, overall uncooperative nature with counsel and the unreasonable restrictions he placed on his clients’ availability for questioning because of the demands of spring seeding and fall harvest.

Had the Chambers judge taken proper note of this evidence, SCIC argues, he would have found the delay excusable. [ 65 ] At the very least, this argument fundamentally misrepresents the findings of fact made by the Chambers judge. He stated that, in general terms, delay tactics employed by a defendant is a relevant consideration. And, on the evidence before him, the Chambers judge agreed that the respondents were to blame for three to four years of delay, that is, from 1998 when the statement of claim was filed until 2002.

These findings are found in paragraphs 15–17 of his decision: [15] Whether delaying tactics were employed by a defendant is a relevant consideration in determining whether delay is excusable ( ICC at para 44 ).

There is some merit to the plaintiff’s submission that the defendants are responsible for some delay: they did not file statements of defence for two years after being served with the claims; they threatened to bring an application to stay the proceedings while the criminal fraud trial ran its course; they opposed the release of relevant RCMP documents, they did not cooperate in setting a date for mandatory mediation; and their counsel did not always respond to letters sent by plaintiff’s counsel. [16] After avoiding their obligations to file statements of defence for two years, the defendants caused a further delay of about 14 months by, unsuccessfully, opposing the production of the RCMP investigation documents.

Several court appearances were required. The defendants grounded their opposition on assertions that most of the RCMP documents were irrelevant and, because third parties were mentioned in the documents, production could breach the Privacy Act . Those arguments did not lie in their mouths.

The RCMP could have resisted production on those grounds, but it consented. [17] It is also true that the defendants did not cooperate in setting a date for mandatory mediation but that did not result in any additional delay because mediation was in 2001, during the delay caused by the defendants’ opposition to production of RCMP documents. [ 66 ] By the Chambers judge’s calculation, that left 15 years.

While his reasons do not dissect each letter and email passing between counsel in the ensuing 15-year time frame, for purposes of assigning fault, the Chambers judge obviously reviewed the evidence pertinent to this period of time, finding the following facts or inferences from the facts relevant to SCIC’s argument: (

a) SCIC took no action on the file from 2002 until November 2005 when it finally served its statement as to documents (para 18); (

b) courtesies were extended to Mr. Owens to not hold questioning during spring planting and fall harvest, but that still left nine to ten months each year (para 19); (

c) legal counsel for the parties had agreed to dates for questioning in early 2007 but SCIC cancelled for no articulable reason. When SCIC changed counsel, new counsel was not prepared to proceed with questioning on a second set of dates because he was unaware it had been scheduled. SCIC did not take up Mr. Owens’ offer of six days for questioning later in 2007 and a further six days in January 2008 (para 20); (

d) SCIC changed counsel in 2008, but new counsel did not contact Mr. Owens for three years because of the volume of documents (para 21); (

e) SCIC’s counsel contacted Mr. Owens in 2010 to say he was ready to proceed to questioning, but this letter was followed by two years of silence (para 22); (

f) when Mr. Klein took over the file in 2012, he demanded dates for questioning and threatened to take out appointments, but this threat was followed by another two years of silence (para 22); and (

g) in January 2014, Mr. Klein was more aggressive. He wrote to Mr. Owens and pressed for dates for questioning, stating he had draft appointments that he would issue if Mr. Owens did not co-operate. But, “a little later, citing the large number of documents that had to be reviewed, Mr. Klein asked Mr. Owens for available dates for questioning in March 2015 – nearly 15 months hence” (at para 22). [ 67 ] In the end, the Chambers judge did not accept the argument that Mr.

Owens’ conduct was the underlying cause of the delay: [25] The plaintiff says that its attempts to move the action along are evidenced by its correspondence to defendants’ counsel demanding action. In 2006, 2007, 2010, 2012 and 2014 its counsel wrote letters to Mr.

Owens, the tenor of which appeared to show an increasing level of urgency, starting with “our client wishes to have this pursued on a more active basis” and culminating with it being “imperative that this matter be moved forward immediately.” The plaintiff also says its intention to forge ahead with questioning in rapid fashion is evidenced by its correspondence threatening to take out appointments compelling their attendance for questioning. It made this threat on no less than eight occasions between 2006 and 2014.

Most of the threats were followed by lengthy periods of time during which SCIC’s counsel did not contact defendants’ counsel – there was no follow-up or taking out of appointments – just ephemeral letters and empty threats for eight years. True, Mr. Owens did on occasion take umbrage and indicate that he would oppose any attempt to take out appointments but I cannot see that his bravado would cow the plaintiff such as to justify eight years of stasis. [26] Although Mr.

Owens sometimes threatened to have appointments set aside, he also invited the plaintiff to “feel free to serve us with any appointments you deem are necessary.” I am left to infer that SCIC was not truly serious about proceeding to questioning.

Their letters and threats amounted to little more than feckless sabre rattling. [ 68 ] I am satisfied from my review of the record that the Chambers judge did not ignore or overlook material evidence. SCIC’s counsel did not engage in discussions with Mr. Owens about dates for questioning until September 6, 2006, and, from that time onwards until Mr. Klein assumed carriage of the file in 2012, legal counsel for both sides engaged in a cordial back and forth on dates for questioning. In my view, the evidence amply supports the Chambers judge’s assessment of the situation.

For example, in an exchange of correspondence in January 2007, Mr. Owens replied promptly to indicate his availability in the week of August 13 and then said “please feel free to serve us with whatever appointments you deem necessary”. Another example can be found in Mr. Owens’ reply to some back and forth correspondence regarding dates. Although counsel could not agree on precise dates (Mr. Owens because of his

schedule and his clients because of harvest), he then offered October and December dates, closing with: “I look forward to hearing from you as to which of these dates work for you. Please advise at your earliest convenience as we are now setting trial dates into December on other matters” (letter dated May 24, 2007, from Mr. Owens to Mr. Zinkhan). [ 69 ] SCIC points to Mr. Owens’ constant threat to set aside any appointment that might have been taken out as decisive evidence of his lack of co-operation and an obvious stalling tactic. That may well have been so after Mr.

Klein took over the file in response to his threats to arbitrarily pick a date. However, prior to that point in time, the evidence largely demonstrates a willingness to try to resolve scheduling in concert with counsel for SCIC, and that Mr. Owens’ responses were informed by his busy

schedule and that of his clients. In fact, early on when an appointment was threatened, Mr. Owens replied: “If, given all the circumstances as outlined, you still feel the need to issue appointments and subpoena’s [ sic ], we, too, will have to start taking a very strict view of the proceedings. It is our preference not to have to do so; it is our preference to agree to date when counsel are available. We have demonstrated our willingness in the past given the dates that were set and thereafter wasted.” (Letter dated June 6, 2007, from Mr. Owens to Mr.

Zinkhan) [ 70 ] My intention in pointing to this evidence is not to suggest that Mr. Owens was blameless. Indeed, as I have said above, there appears to have been some points of conflict between Mr. Owens and Mr. Klein after the latter had assumed carriage of the file. On the whole, though, I find the Chambers judge was not persuaded that Mr. Owens was especially obstructive, instead, he simply let SCIC do nothing (para 44). The evidence is capable of supporting this inference. [ 71 ] I am also satisfied that the Chambers judge was cognizant that Mr. Owens did not always respond to Mr. Klein’s correspondence. Mr.

Owens admitted as much at the time of the application. In this respect, it cannot be said that the Chambers judge overlooked material evidence. The Chambers judge was obviously aware of Mr. Owens’ professional discourtesy in failing to respond to correspondence from Mr. Klein, but chose to ascribe relatively little weight to it, stating: “Whether or not Mr.

Owens ran afoul of his obligation in the Law Society Code of Professional Conduct to respond to other counsel’s correspondence is not before me and, in any event, it is de minimis in the context of this nearly 19-year-old action” (at para 45). [ 72 ] In the main, SCIC’s argument invites this Court to reweigh and reassess the evidence and substitute our view of it for that of the Chambers judge. Based on the record from 2014 until the November 2015 fiat of Allbright J., it was possible for the Chambers judge to have assigned more blame to Mr. Owens for the delay.

That conclusion would have been a reasonable one for the Chambers judge to have drawn from the evidence before him. It is not completely clear from the decision if the Chambers judge agreed with SCIC on this point but, in any event, he found Mr. Owens’ conduct de minimis in the context of the “nearly 19-year-old action” (at para 45). [ 73 ] SCIC’s argument engages a question of fact to which the standard of palpable and overriding error applies.

In Nelson at para 38 , the Supreme Court reinforced a deferential approach to fact finding and inference drawing from affidavit evidence, where it said: “The standard of palpable and overriding error applies with respect to the underlying facts relied upon by the trial judge to draw an inference, and to the inference-drawing process itself ( Housen , at para. 23 ).” [ 74 ] Having regard to the whole of the evidence, I am satisfied that the Chambers judge properly considered the evidence pertinent to Mr.

Owens’ actions, including the 2014 to 2015 time frame when it was more pronounced, weighed it and drew appropriate inferences from it. While this Court may have weighed the evidence differently and possibly ascribed some additional blame to the respondents for delay during that period of time, the Chambers judge made no palpable and overriding error. From my view of the evidence, to the extent there was an error in the Chambers judge’s assessment of the evidence, it is not “plainly seen” and, even if it was, the extra few months of delay attributed to Mr. Owens would not have affected the bottom-line result.

Thus, on the standard of review, there is no basis for intervention on this prong of SCIC’s argument. b. The claim was not complex [ 75 ] The relative complexity of an action is a relevant consideration in assessing whether delay was excusable. Here, the Chambers judge did not see SCIC’s action as being particularly complex. In his view, the claim gave rise to a relatively simple issue, the proof of which was not daunting because SCIC had already completed an internal investigation in 1996 and had the benefit of the evidence gathered in the subsequent criminal trial.

Even though 3,000 documents might require “a little more grinding than the average” (at para 24), the Chambers judge concluded that it did not rise to a level of complexity that justified or explained the delay. [ 76 ] Once again, SCIC asks this Court to substitute our assessment of the matter for that of the Chambers judge. Applying the palpable and overriding error standard of review, I would give no effect to this argument. c.

Failure to consider Saskatoon Trading Company [ 77 ] SCIC contends the Chambers judge erred in principle by not following this Court’s ruling in Saskatoon Trading Company , where Jackson J.A. said: “it would be completely unrealistic not to take into account the defendant’s actions in determining whether delay is excusable where it is appropriate to do so” (at para 38). SCIC argues it is contrary to law to allow a defendant to rely on its own delay when it has refused to co-operate (see also: Apex Land Corporation v Heikkila , 2011 ABCA 87 , 42 Alta LR (5th) 204). To make its

point, SCIC provided numerous examples of inaction bordering on intransigence by the respondents and their legal counsel (SCIC’s factum at para 59). Mr. Owens’ failure to reply to correspondence, SCIC submits, was contrary to both The Queen’s Bench Rules and the Law Society’s Code of Professional Conduct , and was therefore a highly-relevant fact the Chambers judge ought to have taken into account. [ 78 ] Saskatoon Trading Company had a unique fact pattern.

The claim in that case arose out of an income tax reassessment by the Canada Revenue Agency (CRA), which required the appellant to pay substantially more tax than expected. A claim was commenced in 2002 against the appellant’s professional advisors before the CRA had quantified the amount of the reassessment and it took four years for the appellant and the CRA to reach agreement on liability and quantum. Thereafter, the appellant decided to obtain an expert opinion before obtaining a date for questioning, but the report was not provided for several years.

A nine-year delay was found by the Chambers judge to be inordinate and inexcusable and that the public interest did not favour the action moving forward. [ 79 ] The decision was overturned on appeal for two reasons. First, this Court concluded the chambers judge had erred in principle by demanding evidence directly from the principal officer (as opposed to counsel) and, second, the chambers judge had overlooked evidence from the appellant about a mediation that had taken place and the efforts that had been made to obtain an expert opinion that might have led to settlement or abandonment of the claim.

In the face of these unique facts, this Court held: [38] As Richards J.A. stated in International Capital (at para. 44), a Court must be careful not to impose a plaintiff’s obligation to move litigation forward on a defendant. Having said that, however, it would be completely unrealistic not to take into account the defendant’s actions in determining whether delay is excusable where it is appropriate to do so .

In this case, it is relevant that the Respondents allowed five years to pass before filing a statement of defence and it was the Respondents who continued to ask for the Appellants’ expert opinion before proceeding to examinations for discovery. (Emphasis added) [ 80 ] I see no error here. First, the facts of Saskatoon Trading Company are clearly distinguishable from the matter under appeal.

Second, Saskatoon Trading Company did not change the law established by ICC ; it simply reaffirmed the point that a defendant’s actions may be relevant and taken into account where it is appropriate to do so as part of the analysis as to why the matter had not progressed more quickly. As this Court said in ICC : [44] The second step in the analysis, again as per Carey v. Twohig itself, 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 . (Emphasis added) [ 81 ] As discussed above, the Chambers judge did consider the respondents’ actions and did place blame squarely at their feet from 1998 until mid-2002.

From that point onwards, he found blame principally rested with SCIC based on his assessment of the evidence, pointing in particular to lengthy periods of time – on numerous occasions – when SCIC’s counsel took no action whatsoever. Furthermore, I am satisfied the Chambers judge took into account evidence that showed the respondents were content to let the matter sit idle and not press it, but he assigned it marginal weight (para 41). d.

Obligations of defendants under The Queen’s Bench Rules [ 82 ] SCIC submits the Chambers judge erred in law by not taking into account how The Queen’s Bench Rules place joint responsibility on both plaintiff and defence counsel to move litigation along. The Queen’s Bench Rules were substantially amended in 2013.

With particular regard to the “Foundational Rules”, SCIC urges this Court to adjust the ICC framework to reflect the enhanced onus now placed on defendants to facilitate the quickest means possible to resolve a claim in a cost-effective way and to respond in a substantive way and within reasonable time to any proposal with regard to the conduct of an action. [ 83 ] Rules 1-3(3), 4-1, and 4-2 of The Queen’s Bench Rules provide: Purpose and intention of these rules: … 1-3

(3) To achieve the purpose and intention of these rules, the parties shall, jointly and individually during an action: (

a) identify or make an application to identify the real issues in dispute and facilitate the quickest means of resolving the claim at the least expense ; (

b) periodically evaluate dispute resolution process alternatives to a full trial, with or without assistance from the Court; (

c) refrain from filing applications or taking proceedings that do not further the purpose and intention of these rules; and (

d) when using publicly funded Court resources, use them effectively. … Responsibilities of the parties to manage litigation 4-1 The parties are responsible for managing their dispute and for planning its resolution in a timely and cost effective way. What the responsibility includes 4-2 The responsibility of the parties to manage their dispute and to plan its resolution requires the parties:

(

a) to act in a manner that furthers the purpose and intention of the rules described in rule 1-3; (

b) to respond in a substantive way and within a reasonable time to any proposal for the conduct of an action; and (

c) when the complexity or the nature of an action requires it, to apply to the Court for direction or request case management pursuant to rule 4-5. (Emphasis added) [ 84 ] Jurisprudence from the Court of Queen’s Bench lends support to SCIC’s

interpretation. In Larson v Frontier Peterbilt Sales Ltd. , 2017 SKQB 114 [ Larson ], Scherman J. considered an application to strike for want of prosecution. He found counsel’s failure to respond to ten letters, one email, one telephone call and two voice mail messages between September 11, 2012, and January 6, 2017, contrary to Rule 1-3(3) and that the joint obligation enshrined by that Rule was relevant to how the facts of that case should be assessed. On this point, he said: [10] There is with the introduction of Rule 4-44, a modification to the test.

The third step of ICC asked “whether it was in the interests of justice that the case proceeds to trial notwithstanding the delay”. Rule 4-44 states that the court must be satisfied “that it is not in the interests of justice that the claim proceed”. The distinction, while subtle, may be of significance in some cases. Having noted this distinction, I am unable to conclude the distinction alters what is or is not in the interests of justice in this case. ... [17] Ignoring and failing to respond to continuing correspondence from opposing counsel is not serving the spirit and intent of the Foundational Rules.

The Foundational Rule quoted was not in existence when the Court of Appeal said in ICC that the burden to advance a claim lies with the plaintiff.

While that statement no doubt continues to apply, it does not apply with the vigour and weight that counsel for Frontier argues when defence counsel lies in the weeds, in the hope that an action will atrophy and fails to respond to continuing correspondence from opposing counsel. [ 85 ] A similar argument was considered but rejected by this Court in Morsky Construction in relation to Rule 1-3: [46] In my view, the new rule is in line with this Court’s treatment of the context factor in ICC and Harding . Litigation, at its core, is adversarial in nature.

The party who started the action is ultimately accountable for its progress. I do not view Rule 1-3(3) as altering this fact. However, this does not mean that the defendant has no obligation to “facilitate the quickest means of resolving the claim.” Thus, where delays are attributable to the defendant, or even where the defendant otherwise reveals that it is content with the delay, this factor weighs against the defendant and in favour of proceeding to trial.

The absence of evidence that the defendant took any steps to proceed will also weigh against the defendant, albeit marginally. [47] Morsky further contends that “it ought to be more difficult under the new Rules for a defendant to succeed in an application to dismiss for delay where the defendants have, for whatever reason, allowed the file to sit in abeyance” (Morsky factum at para 38). However, if this is true, the impact of the rule will be seen at the overall weighing stage of the analysis, which is properly within the discretion of the Chambers judge.

Until something similar to one of the events outlined in Saskatoon Trading occurs, the Court will not interfere with the discretionary decision of a Chambers judge. I could find no such error in the analysis undertaken by the Chambers judge in the consideration of this factor. [ 86 ] Larson does not cite Morsky Construction. [ 87 ] Agri Resource Mgt. is the latest decision from this Court to consider this issue.

Justice Ryan-Froslie affirmed the approach taken in ICC and, citing L.C. v Alberta (Metis Settlements Child & Family Services ) , 2011 ABQB 12 , 509 AR 43 [ L.C. ] , agreed that a defendant must bear some responsibility for advancing an action and confirmed that it was an important factor in reviewing the context in which the delay occurred (para 58). Without reference to the Foundational Rules, Saskatoon Trading Company also expressly recognizes the relevance of defence counsel’s conduct at this stage of the inquiry. [ 88 ] There are two points to be made here.

First, the facts in Larson largely colour the result of that case. There, the plaintiff made persistent efforts to advance his claim that were met mostly with total silence, save for one haphazard, substance-less communication. Justice Scherman determined delay in the proceedings was eminently reasonable given the stunning lethargy of the defendant. The situation in the matter under appeal is quite different from Larson . Taking the record at its highest, Mr. Owens largely failed to respond to correspondence from Mr. Klein after Mr. Klein assumed carriage of the file.

But the landscape of this litigation up to that point in time, as the Chambers judge accurately pointed out, depicted a party (SCIC) that was content to have the claim languish for several years at a time on a number of occasions. In this respect, SCIC’s behaviour was quite unlike the persistent efforts made by the plaintiff in Larson . Second, the Chambers judge did not ignore Mr. Owens’ inactions. He acknowledged Mr.

Owens’ failure to respond to correspondence (para 45) and ultimately did give this factor some effect, albeit marginal. [ 89 ] On a more general note, I view Rule 1-3 as introducing a new element to the law of civil procedure in Saskatchewan. Similar rules in Alberta have been described as “the lens through which all Rules must be interpreted” ( L.C. ).

That said, L.C. reminds us that litigation remains an adversarial process (para 76) and, while defendants must disclose their position and state their defences sooner rather than later, defendants are still entitled to defend actions vigorously (para 78). [ 90 ] The question that arises in this appeal is whether Rule 1-3 or, for that matter, Rule 4-1, has altered a defendant’s obligation with regard to the conduct of litigation in situations where the plaintiff largely lets the claim languish. This seemingly simple question has many layers of complexity.

However, in the matter before us, given the record and the limited argument from counsel on this point, this is a question best left for another day. [ 91 ] Quite apart from the jurisprudence, there is a more practical answer to SCIC’s argument. To the extent that The Queen’s Bench Rules changed the law, that change would only have taken effect from mid-2013 onwards when the current Queen’s Bench Rules

came into effect. By that point in time, SCIC’s action had already sat dormant for many years on many occasions for reasons unrelated to the respondents’ conduct post-2002. Second, as discussed above, the Chambers judge did assess Mr. Owens’ conduct at the second and third stage of the ICC test but, after mid-2002, found it to be de minimis in the context of the nearly 19-year- old litigation. 4.

Did the Chambers judge err by incorrectly applying the relevant law, or in failing to consider relevant evidence in assessing the “interests of justice” factor? [ 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”. [ 93 ] SCIC takes issue with how the Chambers judge assessed each of the eight factors in the “interests of justice” wing of the ICC test. In broad, unspecified terms, SCIC argues the Chambers judge acted on wrong principles of law, overlooked material evidence and misapprehended other material evidence in concluding it was not in the interests of justice for the matter to proceed to trial. [ 94 ] With that, I turn to the specific grounds of appeal raised by SCIC in relation to the eight factors. a.

Prejudice to the defendant if the matter goes to trial [ 95 ] Here, SCIC takes issue with the Chambers judge’s alleged overemphasis of the death of one of the respondents and six key defence witnesses, and the advanced age (85 years) and questionable cognitive capacity of another respondent.

SCIC says the Chambers judge gave disproportionate weight to these matters and, in any event, contends the action should somehow be treated as if it were four separate actions with the delay application approached from the vantage point of the ability of each of the named respondents to defend against it. [ 96 ] This factor was explained in ICC as follows : ... (

a) The prejudice the defendant will suffer in mounting its case if the matter goes to trial – As indicated, this is an important consideration. Relevant matters here would include failing memories on the part of witnesses, the disappearance or death of witnesses over the course of time and the loss or destruction of physical evidence. It will be to a defendant’s advantage to file affidavit material detailing the anticipated prejudice. However, a court can infer that the passage of time will typically have at least some effect on the memories of witnesses.

The more serious the prejudice a defendant will face at trial, the more likely it is that the interests of justice will tip in favour of striking the claim in question. ... (Para 45(a), underline emphasis added) [ 97 ] The Chambers judge quite properly found this factor highly relevant to his assessment of the prejudice issue. As he pointed out, the alleged misconduct occurred 21 to 26 years ago and, as such, it was reasonable for him to infer that the passage of time would have had some effect on memory. The Chambers judge was entitled to draw this inference ( ICC at para 45 (

a) above). Perhaps more importantly, he took note of the stark reality that one of the respondents had died and the other was 85 years old with suspected cognitive difficulties. Grant Jewell, the son of the deceased respondent, averred that his father “ran the operation” at the relevant time. [ 98 ] SCIC argues that, in spite of the situation the respondents have found themselves in, the Chambers judge should have approached the prejudice issue relative to how it affected each of the four respondents individually; that is to say, as if there were four separate actions. I find no merit to this submission.

It ignores the fact that it was SCIC that had applied to consolidate the four actions in 2006, not the respondents, and it is, thus, one claim, not four. It must live by its choice. [ 99 ] The next argument is that any prejudice caused by failing memory can be ameliorated by documentary evidence and resort to the transcript from the criminal proceedings. Substantially, for the reasons expressed by this Court in Agri Resource Mgt. , I see little merit to this argument.

First of all, the focus of concern here is the respondents’ ability to call evidence in defence of SCIC’s claim, not what SCIC or Crown witnesses said in the criminal trial. Since the criminal trial ended in a non-suit with no defence evidence having been called, one wonders how the Crown’s evidence (which undoubtedly favours SCIC) would be of any assistance to the respondents.

At best, the utility of the criminal transcript for the respondents lies in its use in cross-examining SCIC’s witnesses, but that assumes, of course, that the same witnesses who testified in the criminal matter will testify in the civil trial. This situation is quite unlike McLeod v Fyson , 2014 SKQB 87 , 440 Sask R 286, where witness statements in a prior criminal proceeding had been taken and examination for discoveries had been held. The other problem with this suggestion is that documents are generally introduced into evidence through their author.

Absent consent from SCIC, there is no certainty the respondents’ documents would be admissible at trial. [ 100 ] As to the death of the six “key” witnesses, SCIC filed evidence to contradict the importance of these witnesses’ evidence and argued there were other witnesses – unearthed by SCIC no less – who may have material evidence to offer. There are several problems with this suggestion, coming as it does from SCIC.

The Chambers judge accepted the respondents’ affidavit evidence that described how they had acquired grain from each of the “key” witnesses (now deceased) and the general nature of the testimony each had to offer. There was no evidence to contradict this position and the mere fact there may be other witnesses out there who might be able to fill in some of the evidentiary gaps for the respondents does not detract from the fact that the six who died were “key” in the sense they had first-hand knowledge of the grain-barter arrangements with the respondents.

Clearly, there was evidence to support those findings and as such the Chambers judge made no palpable and overriding error ( Nelson ). Second, the Chambers judge said he was in no position to assess whether the proffered witnesses had first-hand knowledge or if their evidence would assist the case for the defence. Without transcripts or some other tangible way to assess the value of the testimony of these new-found witnesses, it is hard to see how the Chambers judge

erred in handling this argument. [ 101 ] In

summary, the Chambers judge correctly identified the applicable law. Although he found this factor “strongly” favoured the respondents, as discussed below, there is no suggestion from his decision that he gave it disproportionate weight or primacy relative to the remaining seven factors that were considered ( Agri Resource Mgt. at para 39 ). While he did not minutely analyze SCIC’s affidavit material, he nonetheless gave it due weight in the context of the submissions SCIC had made to rebut the respondents’ allegations of prejudice.

Simply because he did not accept SCIC’s evidence or assigned it little weight does not mean he disregarded a material fact. To the contrary, he took SCIC’s evidence into account in assessing the effect effluxion of time had on the respondents’ ability to marshal a defence to SCIC’s claim. Given the importance assigned to this factor by ICC , it was hard for him to do otherwise. b. Length of inexcusable delay [ 102 ] As discussed above, the Chambers judge erred in his calculation of the total amount of delay.

The question on appeal, though, is whether that error had any material effect on the second stage of his analysis. As stated above, the Chambers judge’s error was minimal in the overall context of this action and did not affect his bottom-line result. As this Court said in ICC , an unjustifiable delay of a few months is something quite different from an unjustifiable delay of many years. Placed in context, 14 years instead of 15 is still a very lengthy period of time for this claim to have languished and still militates in favour of dismissal. c.

The stage of the litigation [ 103 ] The Chambers judge found the litigation to be in the “infancy” stage since it had not progressed beyond the exchange of documents and none of the parties had been questioned (para 36). SCIC argues that the Chambers judge erred in failing to account for efforts it expended arranging dates for the questioning of witnesses and, as such, led to a mischaracterization of the litigation stage.

Relying on Saskatoon Trading Company , SCIC argues, this litigation is more appropriately positioned somewhere in the middle stage of proceedings. [ 104 ] Respectfully, I do not share SCIC’s characterization of where this action stands on the litigation yardstick and find that its “mid- stage” characterization does not accord with the common unders

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