Kevin Taylor Appellant (Plaintiff) v. Moose Jaw Downtown and Soccer/Field, 2021 SKCA 123

Court of Appeal for Saskatchewan Docket: CACV3632 Citation: Taylor v Moose Jaw Downtown and Soccer/Field House Facilities Inc. (Mosaic Place) , 2021 SKCA 123 Date: 2021-09-13 Between: Kevin Taylor Appellant (Plaintiff) And Moose Jaw Downtown and Soccer/Field House Facilities Inc. (carrying on business as Mosaic Place) Respondent (Defendant) Before: Richards C.J.S., Barrington-Foote and Kalmakoff JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Mr. Justice Barrington-Foote The Honourable Mr.

Justice Kalmakoff On appeal from: QBG 1793 of 2013, Regina Appeal heard: December 11, 2020 Counsel: W. Timothy Stodalka for the Appellant Calen Nixon for the Respondent Richards C.J.S. I. INTRODUCTION [ 1 ] Kevin Taylor was the Director of Operations for Moose Jaw Downtown and Soccer/Field House Facilities Inc. [Mosaic Place]. His employment was terminated in 2013. [ 2 ] Mr. Taylor commenced proceedings by way of a statement of claim, arguing that he had been wrongfully dismissed. The litigation sat in neutral for significant periods of time and, overall, advanced only slowly and sporadically.

In 2019, Mosaic Place successfully applied to a Queen’s Bench Chambers judge to have the claim dismissed for want of prosecution. [ 3 ] Mr. Taylor appeals from the Chambers decision. He submits that the Chambers judge made a number of errors in her consideration of Mosaic Place’s application and that the order dismissing his action should be set aside. [ 4 ] I conclude, for the reasons set out below, that this appeal should be allowed. The Chambers judge correctly concluded that the delay in issue here was both inordinate and inexcusable.

However, she made some errors of principle in assessing whether it is in the interests of justice that Mr. Taylor’s claim should nonetheless proceed to trial. When those errors are corrected and this matter is re- examined, the balance tips in favour of permitting the claim to proceed. II. BACKGROUND [ 5 ] Mr. Taylor began working for the City of Moose Jaw in 1991. In June of 2011, he became the Director of Operations of Mosaic Place. It was a body corporate responsible for the operation, management and programming of a downtown recreational facility in Moose Jaw.

There are unresolved questions about the legal relationship between the City of Moose Jaw and Mosaic Place but they do not impact this appeal. [ 6 ] On June 6, 2013, Mr. Taylor’s employment as Director of Operations was terminated without notice. [ 7 ] The particulars of what happened following Mr. Taylor’s dismissal bear very directly on the resolution of this appeal and, as a result, it is necessary to set them out in some detail. 2013 • September 23, 2013: Mr.

Taylor issued a statement of claim alleging that he had begun working for the City of Moose Jaw in 1991, had become Director of Operations for Mosaic Place in 2011, and had been dismissed in June of 2013 without compensation in lieu of reasonable notice of the dismissal. Mr. Taylor was represented by Timothy Stodalka. • December 4, 2013: Mosaic Place filed its statement of defence. It alleged that Mr. Taylor’s employment had been terminated for just cause and that, as a result, he was not entitled to pay in lieu of notice.

Mosaic Place was represented by Brian Kenny, Q.C. of MacPherson Leslie & Tyerman LLP. 2014 • January 24, 2014: Mandatory mediation was completed. • May 13, 2014: Mr. Kenny sent a letter to Mr. Stodalka inquiring as to whether Mr. Taylor would be adding the City of Moose Jaw as a defendant and requesting Mr. Taylor’s affidavit of documents.

• June 17, 2014: Mr. Kenny sent a letter to Mr. Stodalka requesting a response to his letter of May 13, 2014. • July 8, 2014: Mr. Kenny sent another letter to Mr. Stodalka requesting a response to his letter of May 13, 2014. • August 21, 2014: Mr. Kenny sent a letter to Mr. Stodalka advising that if he did not receive a response within ten days, Mosaic Place would bring an application to dismiss the action for want of prosecution. • September 4, 2014: Mr. Stodalka sent Mr. Kenny an email advising that Mr.

Taylor had secured employment with the City of Moose Jaw and that a settlement proposal would be forthcoming. • September 4, 2014: Mr. Kenny replied by saying that he looked forward to “timely communication” of the settlement offer. • September 29, 2014: Mr. Kenny sent Mr. Stodalka an email requesting the settlement proposal referred to in his email of September 4, 2014. • December 19, 2014: Mr. Kenny sent Mr.

Stodalka a letter advising that, if no settlement proposal was put forward or if no steps were taken to advance the action by January 9, 2015, he had instructions to proceed with an application to dismiss it for want of prosecution. 2015 • February 18, 2015: Mr. Kenny filed an application by Mosaic Place to strike Mr. Taylor’s claim for want of prosecution. • March 5, 2015: Mr. Taylor filed his affidavit of documents. • March 6, 2015: Mosaic Place’s application to strike Mr.

Taylor’s claim was adjourned sine die by consent. • June 12, 2015: The oral questioning of Scott Clark, Mosaic Place’s proper officer, was conducted. Undertakings were given by Mr. Clark. • December 10, 2015: The oral questioning of Mr. Taylor was conducted. Undertakings were given by Mr. Taylor. 2016 • No action was taken on the file by either Mr. Taylor or Mosaic Place. 2017 • April 2, 2017: Mr. Stodalka sent an email to Lynsey Gaudin of MLT Aikins indicating that he hoped to have Mr.

Taylor’s reply to undertakings prepared shortly after April 3, 2017, and noting that Mosaic Place had not provided replies to Mr. Clark’s undertakings. He indicated that Mr. Taylor would be interested in discussing a potential settlement of his claim. • April 2, 2017: Ms. Gaudin replied that she expected to provide Mr. Stodalka with replies to Mr. Clark’s undertakings in early May. She also indicated that “[w]ith regard to any settlement proposal – it would be helpful for me if you would provide your client’s position in that regard”. • July 18, 2017: Mr. Stodalka forwarded a settlement proposal to Ms.

Gaudin. • August 11, 2017: Mr. Stodalka sent a follow-up letter to Ms. Gaudin asking for a reply to the settlement proposal. • September 11, 2017: The settlement proposal was rejected by Ms. Gaudin on behalf of Mosaic Place. 2018 • No action was taken by either side on the file. 2019 • August 30, 2019: Mr. Stodalka filed Mr. Taylor’s reply to undertakings, a notice of application for

summary judgment returnable September 17, 2019 (not giving the one-month notice required by Rule 4-46(1)), and an affidavit deposed by Mr. Taylor on July 18, 2019, in support of the

summary judgment application. • September 3, 2019: Matters were adjourned by consent at the request of Mosaic Place. • October 8, 2019: Matters were adjourned by consent at the request of Mosaic Place. • October 30, 2019: Mosaic Place purported to revive the February 18, 2015, notice of application to strike Mr. Taylor’s claim by writing to the Court of Queen’s Bench requesting that the matter be placed before the Court. • October 30, 2019: Calen Nixon of MLT Aikins, who appears to have come on this file only recently, wrote to Mr. Stodalka to advise that, in the view of Mosaic Place, the replies provided by Mr.

Taylor to two of his undertakings were inadequate and to indicate that, if satisfactory answers were not received, he anticipated instructions to bring an application to obtain proper answers. • November 1, 2019: Mr. Nixon served Mr. Clark’s reply to undertakings and an affidavit sworn by Jim Puffalt, a City employee, on

November 1, 2019. Mr. Puffalt deposed that the affidavit was to be used in support of Mosaic Place’s application to strike Mr. Taylor’s claim for want of prosecution and in response to Mr. Taylor’s

summary judgment application. These documents were filed on November 7. • November 7, 2019: Mosaic Place served an amended notice of application to strike Mr. Taylor’s statement of claim for want of prosecution and, in support thereof, relied on Mr. Puffalt’s November 1, 2019, affidavit. The amended notice of application was filed on November 8. • November 12, 2019: Mosaic Place filed (

a) an application to strike a number of paragraphs from Mr. Taylor’s July 18, 2019, affidavit filed in support of his

summary judgment application on the basis that they contained opinion evidence or were speculative, irrelevant or argumentative, and (

b) an application to require Mr. Taylor to provide further and better particulars to two of his undertakings, and to produce himself for cross-examination on his affidavit evidence. • November 13, 2019: Mr. Taylor filed an affidavit that he had deposed on November 12, 2019. It was in response to Mr. Puffalt’s affidavit of November 1, 2019. • November 22, 2019: Mosaic Place filed three briefs of law. They dealt with (

a) its application to strike parts of Mr. Taylor’s affidavit evidence, (

b) its application to strike Mr. Taylor’s claim for want of prosecution, and (

c) its application for further and better particulars. • November 22, 2019: Mr. Taylor filed his response to Mosaic Place’s notice of objection to affidavit evidence. He also filed a brief of law dealing with (

a) Mosaic Place’s application for a further examination of him, and (

b) Mosaic Place’s application to dismiss his claim for want of prosecution. • December 11, 2019: The local registrar advised Mr. Nixon and Mr. Stodalka that, as per Practice Directive GA-PD #9, the

summary judgment application would be managed, but not heard, in Chambers on December 12, 2019. III. THE CHAMBERS DECISION [ 8 ] Mr. Nixon and Mr. Stodalka agreed, during a conference call with the Chambers judge on December 11, 2019, that the

summary judgment application, the application to require Mr. Taylor to provide further and better replies to his undertakings (presumably also including the application to cross-examine Mr. Taylor), and the application to strike parts of Mr. Taylor’s affidavit should be adjourned pending the resolution of the application to strike Mr. Taylor’s claim for want of prosecution. [ 9 ] The Chambers judge dealt with the application to strike for want of prosecution by applying the framework of analysis prescribed by International Capital Corporation v Robinson Twigg & Ketilson , 2010 SKCA 48 , 319 DLR (4th) 155 [ ICC ].

First, she found that the delay in question had been inordinate. [ 10 ] Next, the Chambers judge addressed the question of whether the delay was excusable. In this regard, she found that, aside from stating that he had been instructing his counsel to proceed, Mr. Taylor had provided no explanation for the delay. The Chambers judge noted that, since the application to dismiss for want of prosecution and the questioning of the parties in 2015, there had been nearly a four- year period of inactivity broken only by a five-month span when a settlement proposal had been advanced and rejected.

The Chambers judge found the delay to be inexcusable. [ 11 ] The Chambers judge then turned to the question of whether it was in the interests of justice to let the claim proceed. In this regard, she found as follows: (

a) Mosaic Place would be prejudiced if the matter proceeded because key witnesses had relocated to different cities and provinces; (

b) the length of the inexcusable delay was not extreme; (

c) while there had been some progress in the litigation, a number of steps remained. She observed that the application for

summary judgment brought by Mr. Taylor could not save his claim, particularly when he had failed to provide a notice of his intention to proceed; (

d) there was no negative impact on Mosaic Place, reputationally and so forth, resulting from Mr. Taylor’s failure to move matters forward; (

e) Mosaic Place had filed an application to strike the claim for want of prosecution in 2015 and thus Mr. Taylor had been on notice to proceed in a timely way; (

f) Mr. Taylor’s explanation for the delay was not persuasive; (

g) despite the implication that it was Mr. Stodalka who was to blame for not moving matters forward, Mr. Taylor had to bear some of the burden for the delay because of his selection and instruction of counsel; and (

h) the case involved no question of public interest that would suggest it should proceed. In the end, and weighing all of these factors, the Chambers judge concluded that it was not in the interests of justice that Mr. Taylor’s claim be allowed to proceed. IV. ANALYSIS [ 12 ] Mr. Taylor submits that the Chambers judge erred in her analysis and that her decision should be overturned as a result. He advances three broad lines of argument: (

a) the Chambers judge failed to consider, or to properly consider, the actions of Mosaic Place during the course of the litigation; (

b) the Chambers judge erred in finding that the delay was inordinate; and (

c) the Chambers judge erred in her assessment of whether it is in the interests of justice that his claim proceed. I will deal with each of these arguments, and their various components, in turn. First, however, it is necessary to confirm the standard of review and to say a word about the framework to be used in analyzing an application to strike a claim for want of prosecution. A. Standard of review [ 13 ] The decision of the Chambers judge was discretionary in nature and, as a result, it attracts a deferential standard of review.

As stated in Douglas v Saskatchewan Crop Insurance Corporation , 2018 SKCA 74 at para 2 , “[t]his Court is not entitled to remake Queen’s Bench decisions [of this sort] from the ground up”.

[ 14 ] The basis on which the Court may intervene in a discretionary decision was recently summarized as follows in Kot v Kot , 2021 SKCA 4 , 63 ETR (4th) 161: [20] In

summary, these cases confirm that appellate intervention in a discretionary decision is appropriate where the judge made a palpable and overriding error in their assessment of the facts, including as a result of misapprehending or failing to consider material evidence. Appellate intervention is also appropriate where the judge failed to correctly identify the legal criteria which governed the exercise of their discretion or misapplied those criteria, thereby committing an error of law.

Such errors may include a failure to give any or sufficient weight to a relevant consideration. [ 15 ] This approach is fully consistent with the one that has been employed in cases involving applications to strike for want of prosecution. See, for example: ICC at para 19 , Stilborn v SaskPower , 2018 SKCA 97 at para 6 ; Saskatchewan Crop Insurance Corporation v McVeigh , 2018 SKCA 76 at paras 26–27 ; 428 DLR (4th) 122 [ McVeigh ]; and Agri Resource Mgt. 2001 Ltd. v Saskatchewan Crop Insurance Corporation , 2017 SKCA 35 at para 17 , [2017] 8 WWR 215 [ Agri Resource ]. B.

The framework of analysis [ 16 ] Rule 4-44 speaks to the dismissal of a claim for want of prosecution. It says this: 4-44 If delay occurs in an action, on application the Court may: (

a) dismiss all or any part of a claim if the Court is satisfied that the delay is inordinate and inexcusable and that it is not in the interests of justice that the claim proceed; or (

b) make a procedural order or any other order provided for by these rules. [ 17 ] The leading case in this area is ICC . There, the Court laid out the following framework for analyzing an application to strike a claim for want of prosecution: [43] The first step, as set out in Carey v. Twohig , is an inquiry about whether the defendant has established that the delay in moving a case ahead has been inordinate.

This will involve considering the time the plaintiff has taken to get the litigation to the point where the application to strike is brought and comparing that lapse of time to what might typically be expected in a case of similar complexity. This is necessarily a matter of informed judgment grounded in the overall experience of the court and the particulars of the file in question. [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. [45] The third step of the approach is where the refinement of the Carey v. Twohig approach arises. It is this. If the court finds delay to have been both inordinate and inexcusable, it should not consider the issue of “serious prejudice” as a discreet question.

Rather, it should move directly to the issue of whether it is in the interests of justice that the case proceed to trial notwithstanding the delay and should consider the issue of prejudice in that context. In dealing with this third and final part of the analysis, the court should have regard to all of the relevant circumstances … [ 18 ] In dealing with the third step of the test, ICC said that a court should have resort to all of the relevant considerations including: (

a) the prejudice the defendant will suffer in mounting its case if the matter goes to trial; (

b) the length of the inexcusable delay; (

c) the stage of the litigation; (

d) the impact of the inexcusable delay on the defendant; (

e) the context in which the delay occurred; (

f) the reasons offered for the delay; (

g) the role of counsel in causing the delay; and (

h) the public interest. [ 19 ] The Queen’s Bench Rules [ Rules ] were substantially revised in 2013, three years after ICC was decided. Indeed, that is when Rule 4-44, drafted so as to track the ICC framework, first appeared. Mr. Taylor suggests that new provisions added to the Rules in 2013 should be taken to have shifted the ground when it comes to the analysis required with respect to an application to strike a claim for want of prosecution. The rules in issue are as follows: 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. … 4-1 The parties are responsible for managing their dispute and for planning its resolution in a timely and cost effective way. 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. [ 20 ] In making his point, Mr.

Taylor refers to McVeigh where Schwann J.A. raised, but found it unnecessary to answer, a question as to whether, for purposes of an application to strike a claim for want of prosecution, Rules 1-3 and 4-1 should be seen as having altered a defendant’s obligations with respect to the conduct of litigation and therefore dictated a change in the framework of analysis set out in ICC . [ 21 ] I am not persuaded that the introduction of Rules 1-3, 4-1 and 4-2 require any adjustment to the framework of analysis prescribed by ICC . Simply put, neither rule was intended, as suggested by Mr.

Taylor, to introduce some sort of sea change in the calculus of what makes a claim vulnerable to being struck for want of prosecution. As for Rule 1-3, Whitmore J.A. explained in Morsky Construction Ltd. v Nickle Lake (Regional Park Authority) , 2016 SKCA 110 , 485 Sask R 32 [ Morsky ], that “[t]he party who started the action is ultimately accountable for its progress. I do not view Rule 1-3(3) as altering this fact” (at para 46).

As for Rules 4-1 and 4-2, it is clear that they were intended to amplify or underline the obligations of both plaintiffs and defendants in relation to the efficient conduct and resolution of litigation. But, Mr.

Taylor has pointed to nothing that would suggest these Rules were designed to go beyond that and to somehow recalibrate the responsibilities of defendants in a way that would require a reset of the established law relating to striking claims for want of prosecution. [ 22 ] In any event, the ICC framework already contemplates that defendants have responsibilities in the conduct of litigation and that their actions are relevant to the analysis of an application to strike a claim for want of prosecution. This plays out in all three phases of the analysis contemplated by ICC .

First, with respect to the initial question of whether the delay in advancing the litigation has been inordinate, the conduct of a defendant can be relevant. The required analysis involves an assessment of the complexity of the case and, as ICC indicates at paragraph 43 , “considering the time the plaintiff has taken to get the litigation to the point where the application to strike is brought and comparing that lapse of time to what might typically be expected in a case of similar complexity”.

A defendant can increase the complexity of a case in many ways such as, for example, by raising questions of jurisdiction based on The Court Jurisdiction and Proceedings Transfer Act , SS 1997, c C-41.1 , by advancing concerns relating to the adequacy of the plaintiff’s pleadings, by initiating disputes about document disclosure or the choice of proper officers to be involved in questioning, by raising issues about the propriety of questions or lines of questions, by contesting the adequacy of replies to undertakings, and so forth.

All of these sorts of matters amplify the complexity of a litigation file and thus factor into answering the question of whether there has been an inordinate delay in moving it forward. [ 23 ] As well, the conduct of a defendant is relevant to the second step of the ICC analysis, i.e., to the question of whether the inordinate delay is excusable. Paragraph 44 of ICC recognizes that relevant considerations on this front will include “the specific reasons offered as to why the matter has not moved more quickly”. Those reasons can and do include the conduct of the defendant.

Thus, for example, if a defendant delays unnecessarily or unjustifiably in taking a step in the litigation when it has an obligation to act – providing a statement of defence, providing an affidavit of documents, or providing replies to undertakings, for example – those delays will be “excusable” from the point of view of the analysis required by ICC .

Moreover, if it can be shown that a defendant caused delay by virtue of a failure to act as required by Rules 1-3, 4-1 or 4-2, that delay would also be excusable for purposes of the required analysis. [ 24 ] ICC was applied in just this way in Saskatoon Trading Company Limited v Hergott, Duval, Stack and Partners , 2013 SKCA 42 , 362 DLR (4th) 67. There, this Court found that a Queen’s Bench Chambers judge had erred by failing to give proper consideration to the extent to which the defendants were the source of the overall delay.

Justice Jackson, writing for the Court, said this: [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. See also: Agri Resource at paras 59–63 . [ 25 ] A defendant’s conduct can also be relevant to the third step of the analysis mandated by ICC , i.e., the inquiry into whether it is in the interests of justice that the case proceed to trial notwithstanding the delay. In this regard, a judge is to consider “all the relevant circumstances” including, as per paragraph 45(

e) of ICC , “the context in which the delay occurred”. In that paragraph of ICC , it is noted that defendants “are generally understood to have no positive obligation to move litigation forward” but that, nonetheless, “if it can be shown that, for his or her own reasons, a defendant was content to let a file sit in abeyance, that would weigh in favour of letting a claim proceed”. That qualification does not, of course, undermine the fundamental notion that it is the plaintiff who has the root responsibility for advancing a file.

The significance of a defendant’s failure to press the plaintiff for progress will depend on the relevant context and the detail of what transpired. On a similar theme, if a defendant has failed unjustifiably or unreasonably to move a file forward in circumstances where it has an obligation to act, this will also cut in favour of allowing the matter to proceed to trial. The more significant such matters are, the more they will weigh against granting an application to strike the claim. [ 26 ] In

summary, therefore, the ICC framework already reflects and incorporates the notion that a defendant has obligations in the conduct of litigation. While the ultimate and ongoing responsibility for moving litigation forward lies with the plaintiff, the defendant too has obligations. These do not amount to a duty to somehow drag the case over the finish line for the plaintiff. Rather, they involve a responsibility to act, on a timely basis, in taking the steps prescribed by the Rules and taking such other steps, like responding to correspondence, that legitimately call for action on its part.

The Court explained this as follows in Morsky : [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.

See also: Schening v Steel , 2020 SKCA 137 at para 8 , 51 RFL (8th) 1. [ 27 ] In adjudicating an application to strike for want of prosecution, all of the considerations related to a defendant’s conduct must, of course, be approached with the appropriate level of practicality, nuance and realism. A defendant who was three days late in filing an affidavit of documents will be in a very different place than a defendant who was ten months late in filing such an affidavit and acted only after numerous requests from the plaintiff.

Similarly, a defendant who repeatedly and consistently failed to respond on a timely basis or at all to correspondence from the plaintiff will be in a different place than a defendant who only once needed to be reminded about getting back to the plaintiff. The defendant’s actions, like the plaintiff’s, must always be evaluated in context and with an appreciation for the overall flow of the litigation. [ 28 ] Therefore, to conclude on this point, the 2013 amendments to the Rules do not require a revision of the ICC framework for analyzing applications to strike for want of prosecution. C.

Was the delay inordinate? [ 29 ] As noted above, Mr. Taylor’s first line of argument is to the effect that, in considering whether the delay here was inordinate, the Chambers judge erred by failing to take account of various actions, or failures to act, of Mosaic Place. He contends that, if Mosaic Place’s actions are properly taken into account, the delay in moving the litigation forward cannot be seen as having been inordinate. Mr. Taylor emphasizes, for example, that his counsel sent an email on April 2, 2017, asking Mosaic Place to provide Mr.

Clark’s reply to undertakings but that the reply was not served until November 1, 2019. [ 30 ] The problem with this submission is that it conflates the length of the delay in issue with the separate question of whether that delay is excusable, i.e., it conflates the first and second steps of the ICC analysis.

As explained in ICC at paragraph 43 , the first step of the required inquiry involves considering “the time the plaintiff has taken to get the litigation to the point where the application to strike is brought and comparing that lapse of time to what might typically be expected in a case of similar complexity”. It is only at the second step of the analysis that a court performs “an examination of the reasons for the delay aimed at determining whether it is excusable” (at para 44). [ 31 ] In this case, the statement of claim was issued on September 23, 2013.

Some six years elapsed between that date and the date when the application to strike in issue here was filed. It was a straightforward wrongful dismissal action, at least until the dueling applications for

summary judgment and the application to strike that is in issue here were filed. Clearly, the delay involved was inordinate. Indeed, it was longer than the delay in several other wrongful dismissal cases where the Court of Queen’s Bench has found the delay to be inordinate. See, for example: Anderson v Wascana Wood Components Ltd. , 2010 SKQB 357 , 361 Sask R 219; McKee v Melfort (City) , 2011 SKQB 462 ; Marion v English River Enterprises Limited Partnership No. 1 , 2019 SKQB 2 . [ 32 ] I am not persuaded that the Chambers judge erred in concluding that the delay in issue here was inordinate. D.

Was the delay inexcusable? [ 33 ] Mr. Taylor also submits that the Chambers judge erred in finding the delay to be inexcusable. As I understand his submission, the contention is that the Chambers judge’s analysis was incomplete and that she failed to consider a number of factors relevant to this issue. [ 34 ] In order to deal with this argument, it is useful to begin by referring back to the reasoning of the Chambers judge. The relevant parts of her fiat provide as follows: [20] The plaintiff has not been diligent in the past six years in moving the action along.

He deposes that he repeatedly instructed his lawyers to press on with the litigation; however, there is no evidence beyond this assertion in support of such a position. After the close of pleadings in 2013, the parties attended mandatory mediation in January 2014. A year later, the defendant brought an application to dismiss the action for want of prosecution.

This application was adjourned sine die by consent of the parties; however, it certainly served as notice that the defendant expected the litigation to proceed in a timely way. [21] Oral questioning of both the plaintiff and representative of the defendant occurred in 2015. There was a delay of approximately one and a half years before the plaintiff requested replies to the defendant’s undertakings, a step requested by the plaintiff but not reciprocated until August 30, 2019 when the plaintiff served his replies to undertakings concurrent with the application for

summary judgment. The materials of the plaintiff suggest he and his counsel began preparing for the

summary judgment application in 2018. Despite the lengthy delay in the proceedings, the defendant received no notice of the plaintiff’s intention to proceed. [22] The plaintiff provides no excuse for the delay, aside from stating that he was instructing his counsel to proceed. The plaintiff offers no other explanation for the delay despite being on notice from a very early stage that the defendant expected matters to proceed. This was signalled by the application to strike the claim for want of prosecution which had been adjourned sine die. This was an application that could arise at any time.

Following a rejected settlement offer, the plaintiff made no further efforts for approximately two years. Since the 2015 application to dismiss the action and the oral questioning of the parties, there has been a nearly four-year period of inactivity, less a period of approximately five months where a settlement proposal was advanced and rejected. [23] I am satisfied the delay is inexcusable. [ 35 ] Mr. Taylor suggests this analysis was flawed because it effectively ignored Mosaic Place’s lack of action on the file.

As he puts it at paragraph 49 of his factum, “from December 10, 2015 until August 31, 2019, [Mosaic Place’s counsel] only forwarded two letters to [Mr. Taylor’s] counsel both of which were in response to letters from [Mr. Taylor’s] counsel”. [ 36 ] I find myself unable to endorse Mr. Taylor’s characterization of the relevant timeline. Early in September of 2014, after being pressed for some months to move matters forward, Mr. Stodalka indicated that a settlement proposal would be forthcoming. However, it

was not provided. In February of 2015, Mosaic Place filed its application to strike for want of prosecution. This apparently prompted Mr. Taylor to file his affidavit of documents and the application to strike was adjourned sine die . Mosaic Place’s proper officer was questioned in June of 2015. Mr. Taylor’s questioning took place in December of 2015. Nothing further happened on the file for another 16 months. Then, in April of 2017, Mr. Stodalka inquired about the replies to Mr. Clark’s undertakings, indicated that Mr. Taylor’s replies would be provided in early April and raised the prospect of a settlement.

A settlement proposal was not forwarded to Mosaic Place until July of 2017. Mosaic Place rejected that proposal in September of 2017 and the file then went dark for another 23 months. [ 37 ] It is apparent, in light of the foregoing history, that the proceedings in this matter were characterized by delay and neglect. Two significant blocks of time loom especially large: December of 2015 to April of 2017 when nothing was done following oral questioning and from September of 2017 to August of 2019 when the file remained in neutral after Mosaic Place rejected Mr. Taylor’s settlement proposal. Mr.

Taylor offers no excuse for these delays other than, as the Chambers judge noted, saying in his affidavit of November 12, 2019, that “[o]ver the years, I repeatedly instructed my lawyers to press on with the litigation against [Mosaic Place]” (at para 5). This issue, i.e., the nature of Mr. Taylor’s instructions, requires consideration under the third step of the ICC framework – whether the case should proceed notwithstanding inexcusable delay – but it is not itself an excuse for delay as per the second step of that framework. Accordingly, this branch of Mr. Taylor’s argument has no merit. [ 38 ] Mr.

Taylor also appears to suggest that the delay in moving the litigation forward was excusable because, for considerable periods of time, Mosaic Place did nothing to advance it. In this regard, he relies on Rules 1-3(3), 4-1 and 4-2. However, that reliance is cast in wholly general terms and Mr. Taylor does not identify any particular way in which Mosaic Place was offside those rules. He does not, for example, contend that Mosaic Place failed to facilitate the quickest means of resolving the claim at the least expense as per Rule 1-3(3)(

a) or failed to respond within a reasonable time to a proposal for the conduct of the action as per Rule 4-2(b). Rather, Mr. Taylor relies on a notion, not set out in the Rules , that Mosaic Place had an obligation to independently drive the litigation forward notwithstanding his own failure to do so. As explained above, that is a misapprehension of both the Rules and the basic dynamics of civil litigation. Defendants have responsibilities in the conduct of litigation and those responsibilities must be met. Nonetheless, the fundamental or root duty to advance a file lies with the plaintiff.

A defendant has no obligation to compensate for a plaintiff’s lack of diligence by pulling itself into court. [ 39 ] One other point may deserve some consideration here. Mr. Clark, Mosaic Place’s proper officer, was questioned in June of 2015 but did not provide the replies to his undertakings until November of 2019. Thus, during a substantial part of the delay in issue, Mosaic Place was in breach of its obligation under Rule 5-33(1) to provide answers to undertakings “within a reasonable time”. But, Mr. Taylor does not attempt to tie Mr.

Clark’s delay in responding to his undertakings to the delay in moving this matter forward. He does not say, for instance, that he was unable to make progress because he had to wait for those replies before moving ahead. Accordingly, I am unable to see the delay in responding to Mr. Clark’s undertakings as excusing the delay in moving the proceedings forward in that sense. [ 40 ] In the end, therefore, there is no basis for taking issue with the Chambers judge’s conclusion that the delay in question here was inexcusable.

Her analysis could have taken a more complete account of the actions of Mosaic Place during the course of the litigation but Mr. Taylor’s failures mean that, overall, the delay in issue here was not excusable. E. Should the action be allowed to proceed? [ 41 ] Mr. Taylor’s final line of argument is that the Chambers judge erred in her assessment of whether it is in the interests of justice that his claim proceed notwithstanding the inordinate and inexcusable delay in issue here.

In order to deal with the particulars of his submissions in this regard, it is necessary to examine each of the factors that the Chambers judge dealt with in the course of her analysis of this issue. 1. Prejudice to Mosaic Place [ 42 ] In examining the question of whether Mosaic Place would suffer prejudice if this case went to trial, the Chambers judge made three points. First, she noted Mr.

Puffalt’s averment that Mosaic Place had been dissolved and was no longer operational, that a contractor was responsible for operating the facility and that, although he had been tasked with administering the litigation on behalf of Mosaic Place, he had no knowledge of Mr. Taylor’s employment with Mosaic Place. [ 43 ] Second, the Chambers judge noted that the individuals who had been involved on behalf of the City with the matters underpinning Mr. Taylor’s claim were no longer employed by the City.

In this regard she wrote as follows: [27] The four persons with involvement in and knowledge of the allegations advanced by the plaintiff are no longer employed with the City and their employment concluded between 2013 and 2016. As noted in ICC , the passage of time will typically have some effect on a witness’s memory, Scott Clark, the proper officer for the defendant at questioning in 2015 and one of the primary persons involved in the allegations made by the plaintiff, concluded his employment with the defendant in November 2016.

The plaintiff deposes he was aware that Scott Clark’s employment had concluded in 2016. The conclusion of Scott Clark’s employment with the defendant was over three years after the action was commenced and three years before the plaintiff brought their application for

summary judgment which reignited these proceedings. [28] The plaintiff acknowledges the four persons who would appear to have involvement in this matter on behalf of the defendant have since relocated to different cities and provinces. Although there is no indication they would not be available to testify, there is certainly an increased cost to the defendant which would have been unnecessary had the plaintiff proceeded in a timely way.

There would be some prejudice to the defendant. [ 44 ] Third, the Chambers judge also noted authorities to the effect that, as a general proposition, delay can be considered to be inherently prejudicial to a defendant. [ 45 ] By way of conclusion, the Chambers judge indicated that she was satisfied Mosaic Place would be prejudiced if the action continued.

[ 46 ] Mr. Taylor does not take direct issue with the Chambers judge’s reasoning on this front. Rather, he stresses there was no evidence that serious prejudice would be suffered by Mosaic Place. This submission has no merit to the extent it is an assertion that a demonstration of “serious prejudice” to the defendant is a prerequisite for striking a claim for want of prosecution. The ICC approach to this issue is more subtle than that.

As provided in that decision at paragraph 45(a), “[t]he 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”. Failure by the defendant to demonstrate serious prejudice if a matter proceeds to trial does not, in and of itself, mean an application to strike a claim for want of prosecution must be dismissed. [ 47 ] All of this said, Mr. Taylor is correct in contending that Mosaic Place has not demonstrated that it will suffer any sort of meaningful prejudice if this matter goes ahead.

While four potential Mosaic Place witnesses have left the employ of the City of Moose Jaw, there is no suggestion that they cannot be located, are unwilling to testify, or have somehow confirmed an inability to recall the relevant events. At most, and as recognized by the Chambers judge, Mosaic Place has established that it could face some extra costs and inconvenience if its witnesses have to be brought in from different cities and provinces.

As well, and as also identified by the Chambers judge, it is generally accepted as an overall proposition that delay is normally prejudicial to a defendant. [ 48 ] As a bottom line, I am not persuaded that the Chambers judge made any error of fact or principle in relation to this issue. She identified the relevant considerations, examined them, and concluded that Mosaic Place would be prejudiced if Mr. Taylor’s claim went to trial. Notably, she did not suggest that any such prejudice would be significant or consequential.

She said only that “[Mosaic Place] would be prejudiced if the action is permitted to continue” (at para 30). Read in the context of what she wrote before reaching that conclusion, I take the Chambers judge to have said, in effect, that Mosaic Place would suffer some prejudice, but only a very limited amount of prejudice, if this case proceeds to trial. I am unable to find a reviewable error in any of that. 2.

Length of the inexcusable delay [ 49 ] The Chambers judge commented on the length of the inexcusable delay by writing, most importantly, as follows: [32] In my view, the last action taken specific to advancing the litigation was the oral questioning of the plaintiff in December 2015, which was four years prior to the within application to strike the action and occurred in response to a prior application to strike the action.

The delay since the action was commenced is over three times longer than the time the plaintiff actually spent in the defendant’s employ. [33] Despite this, the delay in the circumstances, although inordinate, is not an extreme delay. If other factors suggest permitting the action to continue, the length of the delay would not stand in the way of that suggestion. [ 50 ] Mr. Taylor does not suggest there is an error in this analysis. To the contrary, he characterizes it as something that supports the idea that his claim should have been allowed to continue to trial.

For its part, Mosaic Place does not contest this aspect of the Chambers judge’s decision either. 3. Stage of the litigation [ 51 ] The Chambers judge resisted Mr. Taylor’s suggestion that the proceedings were very close to a final resolution because they could be concluded by way of the pending

summary judgment application. She observed that there was no certainty that

summary judgment would be forthcoming and expressed concern about a

summary judgment application, particularly in the absence of a notice of intention to proceed, being employed as a device for saving a claim from being struck for want of prosecution. She said this: [34] The parties have engaged in a number of required steps, including questioning of the parties. The defendant received the plaintiff’s replies to undertakings on August 30, 2019. The defendant has since served a number of applications including a request for further and better replies to undertakings and an application to strike parts of the plaintiff’s affidavit evidence. While the plaintiff proposes that the matter is ready for determination, as suggested by the

summary judgment application filed August 30, 2019, there is no certainty this matter would be determined in a

summary fashion. Further, the application for

summary judgment is not, in my view, a means to save the litigation particularly in the absence of providing the defendant with notice of their intention to proceed. [35] While some steps have been taken in the litigation, it is clear there still remain a number of steps before the action is resolved. I am satisfied this factor favours the defendant. [ 52 ] Mr. Taylor takes issue with this assessment of the situation. As noted, he contends the affidavits required for

summary judgment have been filed and that, but for Mosaic Place’s application to strike, the claim would have been decided by way of

summary judgment. In the alternative, he suggests that, at most, there was very little to be done by way of preparation before the

summary judgment application could proceed. [ 53 ] To begin on this issue, I understand the Chambers judge’s concern about Mr. Taylor filing the

summary judgment application without regard for Rule 4-46(1). It provides that, where there has been no proceeding for one year from the last proceeding, the party who desires to proceed must give a full month’s notice to the other party of its intention to proceed. Mr. Taylor provided no such notice. In the circumstances here, it is difficult to resist the inference that there was a strategic reason for Mr. Taylor’s failure to give notice as required by Rule 4-46(1). If such notice had been provided, it seems likely that Mosaic Place would have responded with an application to strike Mr.

Taylor’s claim for want of prosecution. (I note here that, by virtue of Rule 4-46(5), a defendant in Mosaic Place’s situation need not provide notice before applying to dismiss an action for want of prosecution.) Indeed, this was the assessment of the Chambers judge. At paragraph 16 of her fiat, she very reasonably concluded that “[h]ad [Mosaic Place] received notice of [Mr. Taylor’s] intention to proceed, I anticipate [Mosaic Place] would have taken this action [the application to strike] prior to the application for

summary judgment being filed”. As a matter of general principle, all of this would normally mean that, although it is not possible to ignore the reality that Mr. Taylor has filed a

summary judgment application, the fact of that application should weigh less heavily on the “interests of justice” scale than might otherwise be the case. [ 54 ] However, there is an important wrinkle here that was not addressed or taken into account by the Chambers judge. Regardless of what Mosaic Place might have done if it had received the required notice pursuant to Rule 4-46(1), the reality is that it engaged with the

summary judgment application after it was filed. It did this by: (

a) seeking more complete replies to two of Mr. Taylor’s undertakings; (

b) filing the affidavit sworn by Mr. Puffalt; and (

c) filing an application to strike parts of Mr. Taylor’s affidavit and to have Mr. Taylor make himself available for cross-examination. Mosaic Place chose to take these steps rather than first asking to have the

summary judgment application stayed or adjourned, pending the resolution of the application to strike. In the end, this decision to engage with the

summary judgment application tends to substantially undercut Mosaic Place’s submission that no significance should be attached to that application. Further, there is nothing in the record to suggest that Mosaic Place objected to Mr. Taylor’s failure to comply with Rule 4-46(1). [ 55 ] Let me also add that there is no error in the Chambers judge’s suggestion that the

summary judgment application is not as fully advanced as Mr. Taylor claims and does not as self-evidently raise issues suitable for

summary determination as he asserts. First, contrary to what is said by Mr. Taylor, not everything is in place with respect to the application. As noted by the Chambers judge, Mosaic Place has outstanding applications aimed at securing better answers to two of Mr. Taylor’s undertakings and seeking to cross-examine Mr. Taylor. However, to be clear, the point about particulars does not seem especially important and, given that Mr. Taylor has been subject to questioning, it is not apparent that his cross-examination will add anything of consequence to the evidence.

Second, the record is somewhat muddy on the question of whether Mosaic Place intends to file anything further with the Court. Mr. Taylor says that, by filing only Mr. Puffalt’s affidavit, Mosaic Place has signalled that it will not be filing additional affidavits. This is a less than compelling basis for an argument that all the materials necessary for the disposition of the

summary judgment application are currently before the Court of Queen’s Bench. But, on the other hand, it is significant that Mosaic Place did not file anything to suggest in positive terms that it will be bringing forward additional affidavits. Third, it cannot simply be assumed that this case is suitable for disposition by way of

summary judgment. As the Chambers judge concluded, at paragraph 34 of her fiat, “there is no certainty this matter would be determined in a

summary fashion”. On the basis of the information available to the Court, I see no grounds for taking issue with that assessment. [ 56 ] By way of conclusion on this point, I respectfully find that the Chambers judge erred in her assessment of the “stage of proceedings” issue. The pleadings have closed. Mandatory mediation has been completed. Affidavits of documents have been exchanged. Questioning was conducted and, but for a request for clarification on two issues, replies to undertakings have been completed as well. And, notwithstanding some questions about its strength and state of readiness, there is also a

summary judgment application on the table and Mosaic Place has actively engaged with that application. As a result, the stage of the proceedings weighs strongly in favour of allowing Mr. Taylor’s claim to proceed. 4. Context in which the delay occurred [ 57 ] In considering the context in which the delay in issue had occurred, the Chambers judge focussed exclusively on the fact that Mosaic Place had brought an application in 2015 to dismiss Mr. Taylor’s claim for want of prosecution. She saw this as putting Mr.

Taylor on ongoing notice that the litigation was to proceed in a timely way and found that this consideration militated against allowing the action to continue. She wrote as follows: [37] It is notable that at an early stage in the litigation, the defendant brought an application to dismiss the action for want of prosecution. The plaintiff was on notice that the defendant expected the litigation to proceed in a timely way. It was clearly important to the defendant that the action move along and delay in the wake of this motion to strike is more serious than if it had not been made.

Not only did the defendant demonstrate they were not happy to let the action languish, they put the plaintiff on notice that it was important to move the action along. [ 58 ] Mr. Taylor contends that the Chambers judge erred in her assessment of this issue. He says that the original application to strike, brought only 17 months after the issuance of his claim, was bound to fail if he expressed any intention to continue with his action and that he initiated all of the progress made on the file after March of 2015. [ 59 ] There is merit in Mr.

Taylor’s criticism of the Chambers judge’s thinking in relation to the context in which the delay occurred. ICC does indicate that “if the plaintiff delays unjustifiably in the wake of a failed motion to strike for want of prosecution, such delay would typically be more serious than if the application to strike had not been made” (at para 45(e)). However, the significance of a failed or adjourned application to strike for the “interests of justice” inquiry can only be properly ascertained by considering any such application in context. [ 60 ] In this case, Mosaic Place pressed in 2014 for Mr.

Taylor’s affidavit of documents. Mr. Stodalka ultimately advised that a settlement proposal would be forthcoming. When that proposal failed to materialize, Mosaic Place filed its application to strike. This broke the log jam as Mr. Taylor then filed his affidavit of documents, the application to strike was adjourned, and, by December of 2015, the questioning of Mr. Taylor and Mosaic Place’s proper officer had been completed. Then, as noted above, there followed a 16-month period where neither side did anything on the file. Mr. Taylor ended the silence by advancing a settlement proposal in July of 2017.

It was rejected in September of 2017 and the file again slipped into neutral, this time for some 23 months until Mr. Taylor filed his

summary judgment application. [ 61 ] In reciting this history, I do not mean to suggest that the application to strike brought by Mosaic Place was not a legitimate point for the Chambers judge to take into account in deciding whether the interests of justice require that this case proceed to trial. Nonetheless, when that application is considered relative to the overall landscape of the litigation, it is obvious that its significance dimmed considerably after it was adjourned sine die and as the years slipped by and when, unlike during 2014 and early 2015, Mosaic Place simply disengaged.

It neither expressed any concern about the lack of progress on the file nor took any steps to advance the proceedings, including, most particularly, by providing replies to Mr. Clark’s undertakings as required by the Rules . [ 62 ] It is difficult to know how much significance the Chambers judge placed on the fact that the delay in issue here largely took place after Mosaic Place’s application to strike had been adjourned. She said only that “[t]his factor militates against the action continuing” (at para 38). On its face, that conclusion is correct insofar as it goes and looking at the application in isolation.

But, considered in context, and taking account of Mosaic Place’s actions after it was filed, the application to strike cannot properly be seen to weigh materially on the scale that determines if it is in the interests of justice that Mr. Taylor’s claim proceed. [ 63 ] The real problem with the Chambers judge’s assessment of the context in which the delay occurred is that she took into account nothing other than Mosaic Place’s application to strike. She did not consider that Mosaic Place was entirely content to let the proceedings

– including the adjourned application to strike – remain dormant indefinitely and to ignore its own obligation to provide replies to undertakings. As explained above, these are matters that should have been considered when deciding whether it was in the interests of justice that Mr. Taylor’s claim be allowed to proceed to trial. [ 64 ] Overall, I respectfully conclude that the Chambers judge committed an error of principle by limiting her consideration of the context in which the delay occurred to the simple fact that Mosaic Place had filed an application to strike Mr. Taylor’s claim for want of prosecution.

When the full procedural picture is taken into account, the “context in which the delay occurred” factor weighs only somewhat against allowing this matter to proceed to trial. 5. Reasons for the delay [ 65 ] The Chambers judge observed that Mr. Taylor had offered no reason for the delay in advancing his case other than deposing that he had instructed Mr. Stodalka to move matters forward. She went on to note that there were significant periods of time where the litigation failed to advance and when Mr. Taylor would thereby have been aware that the file was not moving ahead.

Nonetheless, he had given no explanation as to why he had done nothing but stand by Mr. Stodalka notwithstanding the number and length of the delays in issue. The Chambers judge concluded at paragraph 43 of her fiat that “[i]n my view, [Mr. Taylor] must bear some of the burden associated with his selection and instruction of counsel”. [ 66 ] Mr. Taylor takes issue with the Chambers judge’s analysis and characterizes her conclusions as being an unwarranted “criticism” of his failure to change counsel.

In my view, this is not a convincing line of argument. [ 67 ] The reality is that, as observed by the Chambers judge, Mr. Taylor provided only a thin explanation for the delay, saying simply that he had “instructed [his] lawyers to settle this matter on my behalf” and that “[o]ver the years, I repeatedly instructed my lawyers to press on with the litigation against [Mosaic Place]” (at para 5). In reaching her conclusion on this point, the Chambers judge did not impose some sort of additional penalty on Mr. Taylor because of the shortcomings in his counsel’s performance. She merely said that Mr.

Taylor had to assume some of the responsibility for the delay caused by those shortcomings. In this regard, she did no more than reflect what this Court said in ICC at paragraph 45 (g): (

g) The role of counsel in causing the delay – There is a comment in Carey v. Twohig to the effect it might be unjust to deprive a plaintiff of the chance of recovering damages in circumstances where the plaintiff himself or herself is blameless in relation to the delay and his or her lawyer is fully responsible for it. See: Carey v. Twohig, supra, at p. 388; Humboldt Flour Mills Co. Ltd. v. Ewen, supra, at para. 4. This is a legitimate consideration when assessing the justice of allowing litigation to continue after inexcusable delay.

Depending on the circumstances, there might well be a measure of unfairness in visiting the consequences of a lawyer’s lack of diligence on his or her client. However, this consideration should not be overstated or given undue weight. The reason for this is straightforward. Plaintiffs select and instruct their counsel. If a litigant engages a lawyer and the lawyer then fails to move matters forward expeditiously, the litigant should bear the burden of his or her choice of counsel and should not expect to have that burden shifted wholly to a defendant who played no role in retaining or instructing the lawyer.

This is perhaps particularly so in the case of sophisticated clients familiar with the ins and outs of litigation. Care must be taken to ensure that plaintiffs’ lawyers are not allowed to defeat applications to strike for want of prosecution by the simple expedient of assuming the blame for not moving the file forward. [ 68 ] At the end of the day and overall, the “reasons for delay” consideration suggests that Mr. Taylor’s claim should not be allowed to continue.

The conduct of this litigation, on both sides, has been a reflection of the problematic culture of complacency and delay that infects some corners of the litigation world. However, it was Mr. Taylor who had the basic obligation to move matters forward and, in the circumstances here, I see no reviewable error in the Chambers judge’s assessment of this issue. 6. The public interest [ 69 ] The Chambers judge rather easily concluded that there was not a larger public interest at stake in this case.

In her view, there was no “issue of genuine public importance with specific implications beyond the litigants themselves” (at para 46). [ 70 ] Mr. Taylor contests this assessment. He suggests that, because the Mosaic Place facility is effectively owned by the City of Moose Jaw, the residents of the City have a right to know if there were problems with its operation that warranted the termination of his employment. [ 71 ] I am not persuaded that the Chambers judge made a reviewable error on this front.

There is no basis for taking issue with her assessment, at paragraph 46 of her fiat, that this is a “typical employment dispute engaging allegations of wrongful dismissal and related damages”. The fact that Mr. Taylor was a public sector employee fired for cause does not elevate this action into what ICC describes, at paragraph 45 (h), as the “narrow category of actions” where the larger public interest can be properly put on the scales when balancing the pros and cons of striking a claim. 7.

Conclusion on the “interests of justice” issue [ 72 ] Given that the Chambers judge made errors of principle in the course of her “interests of justice” analysis, it falls to this Court to reweigh the relevant considerations and reach its own conclusion on that issue. [ 73 ] I do not propose to replough in detail the ground just covered in the foregoing assessment of the Chambers judge’s treatment of each of the factors referred to in ICC . In

summary terms, those factors line up as follows: (

a) Prejudice to the defendant if the matter goes to trial – Mosaic Place will face some prejudice if this matter proceeds to trial, but it has not demonstrated that such prejudice will in any way be significant or consequential. This factor weighs only marginally against allowing Mr. Taylor’s claim to advance to trial. (

b) Length of the inexcusable delay – Mosaic Place does not taken issue with the conclusion of the Chambers judge that, if other

considerations point in favour of the case proceeding to trial, the length of the delay in this case should not stand in the way of that happening. As a result, I will not assign any weight, one way or the other, to this consideration. (

c) The stage of the litigation – this litigation is well advanced. The pleadings have closed. The mandatory mediation has been conducted. Affidavits of documents have been produced. Questioning has taken place and replies to undertakings have been completed (with the exception of two seemingly minor points on which Mosaic Place seeks further clarification). An application for

summary judgment has been filed albeit filed without regard for Rule 4-46(1). As noted, Mr. Taylor’s apparent effort to maneuver around the notice requirement in that rule would normally suggest that the impact of the

summary judgment application having been filed should be heavily discounted. However, Mosaic Place has actively engaged with the application and raised no formal objection about Mr. Taylor’s non- compliance with Rule 4-46(1). Thus, overall, the “stage of litigation” factor weighs heavily in favour of allowing the proceedings to continue even though the

summary judgment application may rest on somewhat less secure ground than Mr. Taylor suggests. (

d) Context in which the delay occurred – Mosaic Place had to repeatedly press Mr. Taylor for progress on the file in 2014 and early 2015. In that context, it was obliged to go so far as to file an application to strike for want of prosecution. After that, Mr. Taylor let matters sit in abeyance for two rather long periods of time. However, that said, Mosaic Place was also fully prepared to let the file stay in neutral and to ignore its obligation to provide replies to Mr. Clark’s undertakings and Mr. Stodalka’s request for those undertakings. In the end, this consideration weighs only somewhat against allowing Mr. Taylor’s claim to move forward. (

e) Reasons offered for the delay – the only reason offered for the delay is Mr. Stodalka’s failure to act on Mr. Taylor’s instructions to move matters forward. Given the very thin explanation Mr. Taylor has offered for why things played out as they did, this factor cuts against this matter going to trial. (

f) The public interest – this is not a case where the public interest carries any weight in the “interests of justice” analysis. [ 74 ] Overall, although this matter is not entirely clear cut, I conclude that it is in the interests of justice that Mr. Taylor’s claim should be allowed to proceed to trial. The stage of the proceedings consideration, including very significantly Mosaic Place’s engagement on the

summary judgment application, is what ultimately tips the balance in that direction. V. CONCLUSION [ 75 ] As explained above, I conclude that Mr. Taylor’s appeal must be allowed. He is entitled to costs in the usual way. “Richards C.J.S.” Richards C.J.S. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.