Stilborn v SaskPower, 2018 SKCA 97

Court of Appeal for Saskatchewan Docket: CACV3047 Citation: Stilborn v SaskPower , 2018 SKCA 97 Date: 2018-11-22 Between: Lloyd Stilborn and Joy Stilborn Appellants (Plaintiffs) And SaskPower Respondent (Defendant) Before: Richards C.J.S., Ottenbreit and Schwann JJ.A. Disposition: Appeal dismissed (orally) Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Chief Justice Richards The Honourable Mr.

Justice Ottenbreit On Appeal From: QBG No 741 of 2007, Regina Appeal Heard: November 22, 2018 Counsel: David Barth for the Appellants Jason Mohrbutter for the Respondent Schwann J.A. [ 1 ] Lloyd and Joy Stilborn commenced an action against SaskPower in May 2007 claiming damages in negligence and for breach of contract arising from SaskPower’s decision to shut off the power supply to their farming operation.

The Stilborns’ original statement of claim quantified damages at $59,858.25 for loss of equipment and poultry chicks and for associated clean-up costs. [ 2 ] In December 2007, after changing legal counsel, the Stilborns filed an amended statement of claim seeking damages in excess of $350,000 for enhanced property damage, economic loss, aggravated and punitive damages, and personal injury. [ 3 ] At some point in 2009, the Stilborns became self-represented. Apart from one telephone call from the Mr.

Stilborn to SaskPower’s legal counsel, two letters from SaskPower’s legal counsel to the Stilborns, and a letter from the Dispute Resolution office directed to both parties with regard to mediation, nothing transpired on this file from 2009 until 2013. In August 2013, legal counsel for SaskPower wrote to the Stilborns to inquire about their litigation. There was no response. [ 4 ] Matters sat in abeyance until the Stilborns retained new counsel in early 2016, who then sought to reinvigorate their action.

In response to inquiries from SaskPower about the reason for the Stilborns’ delay in prosecuting their action, counsel for the Stilborns provided a letter in mid-April 2016 explaining how the Stilborns had been immersed in five other lawsuits they had commenced and, in general terms, had been busy. This letter was met with an application by SaskPower to strike their claim for undue delay pursuant to Rule 4-44 of The Queen’s Bench Rules . The Chambers judge who heard the matter granted the application and dismissed the claim for want of prosecution.

It is from that decision the Stilborns appeal to this Court. [ 5 ] The Stilborns’ appeal was dismissed following the appeal hearing with the promise of written reasons to follow. These are those reasons. [ 6 ] As observed in Douglas v Saskatchewan Crop Insurance Corporation , 2018 SKCA 74 , this Court is not entitled to simply remake a Court of Queen’s Bench decision of the sort in issue here from scratch or consider the matter afresh. Since an application to strike a claim for want of prosecution is discretionary in nature, a deferential approach is warranted.

Thus, in accordance with well- established principles of law, an appellate court should only intervene with a discretionary decision if the Chambers judge erred in principle, misapprehended or overlooked material evidence, took irrelevant factors into consideration, failed to act judicially, or reached a decision that was so clearly wrong that the decision will result in an injustice ( Saskatchewan Crop Insurance Corporation v McVeigh , 2018 SKCA 76 ; Agri Resources Mgt. 2001 Ltd. v Saskatchewan Crop Insurance Corp. , 2017 SKCA 35 , [2017] 8 WWR 215). [ 7 ] With those preliminary comments in mind, I now turn to the decision under appeal and the grounds advanced by the Stilborns to set it aside. [ 8 ] The Chambers judge began her analysis of the SaskPower application by identifying International Capital Corporation v Robinson Twigg & Ketilson , 2010 SKCA 48 , 350 Sask R 160 [ ICC ], as the controlling authority for applications of this nature.

No error is alleged with the Chambers judge’s identification of the applicable law. Rather, the Stilborns take issue with how the Chambers judge applied the legal test to the facts at each stage of the ICC analysis. [ 9 ] At the first stage of the ICC test, the Chambers judge must ask whether the delay is inordinate. The Stilborns argue it was not and that the Chambers judge erred in her calculation of time by failing to consider: (

i) that SaskPower did not engage outside counsel until 2009; (ii) that time should begin to run from 2013, being the year when the Stilborns’ last lawsuit was commenced; and (iii) finally, that eight months should have been deducted from the overall calculation because their newly retained legal counsel had pressed for mediation in early 2016. The Stilborns say SaskPower did nothing for the ensuing eight months after their new counsel came on board until it finally brought an application to strike their claim.

[ 10 ] This argument has no merit for several reasons. First, the Stilborns fundamentally misunderstand the test. As stated in ICC , whether the delay was inordinate in nature invites consideration of the time the plaintiff has taken to get the litigation to the point where the application to strike is brought. The Chambers judge found the claim was just shy of nine years old with no real steps having been taken by the Stilborns to move things along, and that nine years was inordinate in comparison to what might typically be expected in litigation of this sort.

Here, we have a claim that was commenced in 2007 with the application to strike brought almost nine years later.

Even if the initial two years (2007–2009) was deducted from this overall calculation because the Stilborns had taken some steps, though minimal, along the way, by any reasonable measure, seven years is still an inordinate period of time for a claim to languish (see, for example: Morsky Construction Ltd. v Nickle Lake (Regional Park Authority) , 2016 SKCA 110 , 485 Sask R 32; Larson v Frontier Peterbilt Sales Ltd ., 2017 SKQB 114 ). [ 11 ] Second, the mere fact SaskPower changed legal counsel did not operate to reset the clock and has no necessary bearing on the calculation.

Similarly, I am hard-pressed to see how the effect of the Stilborns’ other litigation has any bearing at the first stage of the ICC analysis. [ 12 ] Lastly, the Stilborns argue eight months should have been deducted from the overall calculation because of SaskPower’s own delay in bringing its application after the Stilborns’ newly retained counsel came on board. Even assuming this argument has merit, the facts show that the Stilborns’ legal counsel did not provide an explanation for delay until mid-April 2016.

With SaskPower’s application having been brought in September of that year, at best only four months could have been legitimately shaved from the otherwise lengthy period of time when the claim had languished. [ 13 ] In the end, there is no reviewable error with how the Chambers judge resolved the inordinate delay stage of the ICC test. [ 14 ] At the second stage of the ICC analysis, the Stilborns argue the Chambers judge erred by failing to give sufficient weight and consideration to the other lawsuits brought by them following the commencement of the SaskPower action.

In their factum, the Stilborns argue: “People are committing torts against [Mr. Stilborn] and SaskPower is now trying to taking [ sic ] advantage of a victim to get away from it’s [ sic ] own liability. Plus he had to deal with flooding in 2010.” The Stilborns say the numerous lawsuits make their delay excusable. [ 15 ] The Chambers judge not only considered the Stilborns’ explanation, but she specifically identified six other reasons that had been offered by them to excuse delay. As such, it cannot be said the Chambers judge ignored relevant evidence.

The Chambers judge went on to assess the merits of this argument, noting that the SaskPower litigation was the second oldest of all of the Stilborns’ lawsuits and yet, as she said, while attending to the other litigation, the Stilborns did nothing to move the present matter along. [ 16 ] A careful review of the evidence adduced by the Stilborns led the Chambers judge to infer they had made a deliberate choice to park the SaskPower lawsuit.

This was an intentional decision on their part with no tenable reason or evidence offered to the Chambers judge to explain why it was reasonable in the circumstances for the SaskPower litigation to sit idle while the Stilborns pursued other matters. [ 17 ] The Stilborns point to the Court of Queens’ Bench decision in Brown v 629839 Saskatchewan Ltd. , 2016 SKQB 145 [ Brown ], in support of the proposition that significant financial pressures and emotional issues can give rise to a legitimate excuse for delay. [ 18 ] The Chambers judge did not ignore Brown and, in any event, she was not obliged to follow this decision since delay applications turn on the unique facts of each case.

The Chambers judge found Brown distinguishable on its facts. In response to the defendant’s delay application, Mr. Brown had put forth concrete evidence designed to explain the extensive medical and financial difficulties he and his family had experienced after he commenced his lawsuit. Furthermore, the court in Brown accepted Mr. Brown’s evidence that that he continued with his claim as soon as he was able to do so.

In short, the Brown decision turned on the nature and quality of the evidence put forth in light of the unique facts of that case. [ 19 ] So, in sum, I am not satisfied the Chamber judge committed any reviewable error with how she assessed whether the Stilborns’ inordinate delay was excusable. [ 20 ] At the third and final stage of the ICC test, as this Court pointed out in Harding v Harding , 2014 SKCA 74 , [2014] 9 WWR 658, the Chambers judge must ask whether the interests of justice favour the plaintiff’s action proceeding notwithstanding undue and inexcusable delay.

This stage is described as a “failsafe”, that is, it allows the court to preserve an action that otherwise ought to be struck because the interests of justice demand a determination on the merits. [ 21 ] The Stilborns point to two errors alleged to have been made by the Chambers judge at this stage of the analysis. [ 22 ] First, they say the Chambers judge erred by failing to consider the obvious merit of their claim and SaskPower’s admission of liability and, thusly, erred in overlooking or disregarding a material fact.

Here, the Stilborns underscore the payment of roughly $60,000 that had been made by SaskPower to the Stilborns’ insurer on a subrogated basis, which they say amounted to an admission of liability to the underlying cause of action leaving only an assessment of damages for resolution. [ 23 ] The Stilborns’ claim in its original incarnation was grounded in an allegation of intentional breach of contract and negligent interruption of their electrical supply. The damages claimed were itemized as follows: 12.

As a result of the intentional acts, breach of contract, and/or negligence of the Defendant, the Plaintiffs suffered the following damages: (

a) value of equipment damaged or destroyed – $42,858.25; (

b) clean-up costs – $11,000.00; (

c) loss of poultry chicks – $6,000.00.

to a total of $59,858.25. [ 24 ] SaskPower subsequently paid the Stilborns’ insurer the amounts described in paragraph 12 of the claim as “full compensation for any losses suffered by the Plaintiffs stemming from the disconnection of electricity on June 7, 2005.” In its statement of defence, SaskPower took the position that, as a result of this payment, the Stilborns had been fully compensated for their losses. [ 25 ] While I agree that it was open to the Chambers judge to consider these facts and this argument at the “interests of justice” prong of the ICC test, in the end, failure by the Chambers judge to address this issue would not have made a material difference to the bottom-line result.

The Stilborns’ argument ignores the obvious fact that the vast bulk of the amended claim was not admitted by SaskPower and moreover that, in the alternative, SaskPower had put the nature of the expanded claim for damages in issue by arguing it was not recoverable pursuant to the terms and conditions of the electrical contract and legislative provision.

In any event, there is a dramatic difference between a simple claim for property damages and the kind of behavior that attracts aggravated and punitive damages. [ 26 ] So, contrary to the position of the Stilborns, this was not a simple case that had been reduced to an assessment of the quantum of damages.

The full range of the expanded claim was still on the table and therefore SaskPower’s subrogated payment would not have been considered a factor that favoured allowing the claim to proceed. [ 27 ] The second point to be made here is that, to the extent SaskPower’s payment to the insurer merited some consideration at the third stage of the analysis, it was simply one factor in an overall balancing exercise.

The other relevant factors favoured SaskPower’s position that the claim ought to be dismissed or, at worst, were neutral in effect. [ 28 ] The Stilborns’ second argument comes under the “prejudice to the defendant” part of the test. As I understand their argument, the Stilborns say SaskPower took limited steps to locate potential witnesses and thus misrepresented to the Chambers judge that its witnesses were unavailable. The Stilborns go on to say they have managed to locate SaskPower’s key witness.

The Stilborns argue the Chambers judge should have seen SaskPower’s evidence on prejudice as nothing more than speculation on its part, which, in the end, caused her to give this factor disproportionate weight. [ 29 ] While it is true the Chambers judge gave more treatment to the prejudice factor than the other factors under the third stage of the ICC analysis, the breadth of that treatment was in obvious response to the Stilborns’ arguments on this point and the affidavit evidence they had adduced to show their efforts to locate SaskPower witnesses and thereby blunt the prejudice argument. [ 30 ] I would observe that, in the end, the Chambers judge did not comment on whether the witnesses were available or not – she merely took note of SaskPower’s submission that locating witnesses was an issue it would have to face if the litigation was allowed to proceed.

Rather, with regard to the prejudice factor, the Chambers judge simply identified the possibility of weakened memory with the passage of time. It was completely appropriate for the Chambers judge to have drawn this inference given what this Court said in ICC , i.e., that a court could infer that the passage of time will typically have at least some effect on a witness’s memory. [ 31 ] Finally, prejudice to the defendant, while an important factor, is not the primary factor, and certainly not the deciding factor at the third stage of the analysis.

It is but one factor to be balanced along with the other ICC factors and, as I have noted above, all of the remaining factors either favoured SaskPower or, at worst, were neutral in effect. [ 32 ] To conclude, I see no error with how the Chambers judge undertook her analysis of the ICC test in light of the pleadings and the evidence that had been adduced by the parties. Given the deferential standard of review for discretionary decisions, there is simply no basis for appellate intervention. Accordingly, this appeal must be dismissed with costs to SaskPower, which are fixed at $2,000.