Robert Arkell, Nickolas Bartok, Rita Bartok, Shawn Bellerose, Chad Blind, Montana Englund, Rick Englund, Angela Hengstler, William Hengstler, Michael Hengstler, Steven Hengstler, John Kolodzinski, Molly Kolodzinski, Bernadette Mostad, Edward Mostad, Andrea Patenaude, Bernard Patenaude, Curtis Patenaude, Dawn Patenaude, Charles Pelletier, Louis Szeman, v. William Toth, 2023 SKCA 79

Court of Appeal for Saskatchewan Docket: CACV4118 Citation: Arkell v Komodowski , 2023 SKCA 79 Date: 2023-07-06 Between: Robert Arkell, Nickolas Bartok, Rita Bartok, Shawn Bellerose, Chad Blind, Montana Englund, Rick Englund, Angela Hengstler, William Hengstler, Michael Hengstler, Steven Hengstler, John Kolodzinski, Molly Kolodzinski, Bernadette Mostad, Edward Mostad, Andrea Patenaude, Bernard Patenaude, Curtis Patenaude, Dawn Patenaude, Charles Pelletier, Louis Szeman, and William Toth Appellants/Applicants (Plaintiffs) And Gail Komodowski, Albert Leonard, Kelly Komodowski and Saskatchewan Government Insurance Respondents/Respondent (Defendants) Before: Caldwell, Kalmakoff and Drennan JJ.A.

Disposition: Application to introduce fresh evidence dismissed. Appeal dismissed. Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Mr. Justice Caldwell The Honourable Madam Justice Drennan On appeal from: QBG-YT-00158-2017 (Sask QB), Yorkton Appeal heard: June 6, 2023 Counsel: Bernadette Mostad and Dawn Patenaude on their own behalf and for the appellants Alexander Buchan for Gail Komodowski and Albert Leonard Wayne Rusnak, K.C. for Kelly Komodowski Jordan Hardy, K.C. for Saskatchewan Government Insurance Kalmakoff J.A. I.

Introduction [ 1 ] The plaintiffs in this matter – 22 individuals to whom I will refer collectively as “the appellants” or “the plaintiffs” – commenced a civil action against Gail Komodowski, Albert Leonard, Kelly Komodowski and Saskatchewan Government Insurance [SGI] [collectively, the respondents] by filing a statement of claim in what was then the Court of Queen’s Bench.

In the claim, which was issued on July 11, 2017, the appellants alleged that the respondents had committed tortious violations of their privacy within the meaning of s. 2 of The Privacy Act , RSS 1978, c P-24 , as well as the common-law tort of intrusion upon their seclusion. [ 2 ] The claim was based on allegations that the three individual respondents, Ms. Komodowski, Mr. Leonard and Mr. Komodowski, had unlawfully accessed personal information of the appellants that was stored in a database system owned and maintained by SGI.

The claim also alleged that, once SGI learned that the individual respondents had unlawfully accessed this personal information, it failed to conduct a proper investigation, take appropriate disciplinary action against the individual respondents, or take proper measures to safeguard the appellants’ personal information going forward. The appellants sought general, punitive, and aggravated damages. [ 3 ] By September 6, 2017, each of the respondents had filed a statement of defence.

Affidavits of documents were exchanged over the next few months, and, by January 25, 2018, mandatory mediation had been completed. [ 4 ] After that, however, little progress occurred. In September of 2022, all four of the respondents served the appellants with applications seeking an order dismissing the action for delay, under Rule 4-44 of The Queen’s Bench Rules [ Rules ].

A Chambers judge heard the applications and, by way of a fiat dated October 17, 2022, made an order dismissing the action ( Arkell v Komodowski (17 October 2022) Yorkton, QBG-YT-00158-2017 (Sask KB) [ Decision ]). [ 5 ] The appellants appeal against the Decision. They contend that the Chambers judge made various errors in dismissing their claim. They also seek to introduce fresh evidence on the appeal. [ 6 ] For the reason that follow, I conclude that the fresh evidence application must be denied, and the appeal must be dismissed. II. Background A. The claim [ 7 ] At the time relevant to these proceedings, Ms.

Komodowski owned and operated an insurance agency called Lestock Agencies. As part of that business, she acted as a Licence Issuer for SGI and, as such, she had access to SGI’s automated licence and registration issuing system, known as SGI Auto Mate [Auto Mate]. The Auto Mate system contains personal information relating to persons who register vehicles or hold driver’s licences in Saskatchewan, including such things as their names, addresses, telephone numbers, dates of birth, driving record information (including whether they had ever had their licence suspended or participated in

regulated driver programs such as the ignition-interlock program or driving-without-impairment-course), and information about vehicles they own or lease. Auto Mate also stores masked banking information for those customers who use autopay to pay for the services SGI provides. [ 8 ] Ms. Komodowski’s late father, Mr. Leonard, worked for her at Lestock Agencies. Her husband, Mr. Komodowski, worked as a mechanic at Lestock Motors, which occupied the same building as Lestock Agencies. Mr.

Komodowski also did some work for Lestock Agencies. [ 9 ] In 2015, SGI became aware that the personal information of customers that was stored in the Auto Mate system had been accessed by a person or persons at Lestock Agencies without a documented business purpose having been recorded. SGI investigated and, through the course of that investigation, it learned that Ms. Komodowski had inappropriately provided her log-in credentials to Mr. Komodowski and had permitted him to access the Auto Mate database. SGI also learned that Mr.

Komodowski had admitted to viewing the records in Auto Mate without a legitimate business reason. There were also occasions where Mr.

Leonard’s log-in credentials had been used to access the records maintained in Auto Mate without a legitimate business purpose being documented. [ 10 ] In total, between February of 2012 and April of 2015, there were 84 instances where persons using Lestock Agencies’ login credentials had accessed personal information pertaining to the appellants without documenting a business purpose for doing so. [ 11 ] In July of 2015, SGI notified each of the persons whose information had been improperly accessed in this way.

SGI also conducted an investigation and referred the matter to the Office of the Saskatchewan Information and Privacy Commissioner [SIPC]. The SIPC concluded that, once SGI had learned of the privacy breach, it had taken appropriate steps to contain the breach, notify the affected individuals, and investigate the breach, and that it had implemented appropriate measures to guard against such breaches in the future. B. The chronology of the proceedings [ 12 ] As noted, the appellants filed their statement of claim on July 11, 2017. At the time, they were represented by a lawyer, Mervin Ozirny. Ms.

Komodowski and Mr. Leonard filed their statement of defence on September 5, 2017, as did SGI. Mr. Komodowski filed his statement of defence on September 6, 2017. The appellants filed a reply to defence on September 13, 2017. [ 13 ] The appellants provided their affidavits of documents between October 3, 2017, and October 5, 2017. Mr. Komodowski filed his affidavit of documents on October 23, 2017. [ 14 ] Mandatory mediation, as required by s. 42 of The Queen’s Bench Act, 1998, SS 1998, c Q-1.01 (now s. 7 - 1 of The King’s Bench Act , SS 2023, c 28 ), was completed on January 25, 2018. Ms. Komodowski and Mr.

Leonard provided the appellants with their joint affidavit of documents that same day. [ 15 ] Ms. Komodowski and Mr. Leonard filed a request for particulars on February 12, 2018. The appellants provided a response to that request on March 6, 2018. [ 16 ] On December 23, 2021, two of the appellants – Bernadette Mostad and Dawn Patenaude filed a notice of change of representation, from Mr. Ozirny to Peter Waldmann. [ 17 ] On July 5, 2022, Mr.

Leonard passed away. [ 18 ] On September 26, 2022, the respondents served the appellants with notice of their applications to have the action dismissed for delay, under Rule 4-44. C. The Decision [ 19 ] The Chambers judge dealt with the respondents’ applications to strike the claim by applying the framework set out in International Capital Corporation v Robinson Twigg & Ketilson , 2010 SKCA 48 , 319 DLR (4th) 155 [ ICC ]. In that regard, she noted that, as ICC instructs, the first consideration is whether the delay in the action has been inordinate.

She recognized that this required her to compare the time it had taken the appellants to move the action forward to where it presently stood against how long it would take a typical action with similar complexity to reach that point. She observed that the action in this case had been commenced in July of 2017 and that mandatory mediation had been completed in January of 2018. She then stated: [18] More than five years after the litigation was commenced, it has not progressed beyond the point that it was at six months after commencement.

In my view, using any measure, the delay here is inordinate. [ 20 ] The Chambers judge then turned to the second step in the ICC framework, namely, considering whether the delay was inexcusable.

She explicitly recognized that this required her to take into account “the nature of the action, the plaintiffs’ diligence or lack thereof in pressing the litigation forward and the specific reasons offered by the plaintiffs as to why the action has not moved more quickly” (at para 19). [ 21 ] As to the nature of the action, she noted that the fact there were 22 plaintiffs was properly seen as adding some complexity to the litigation, but also observed that there was no other evidence before her that tended to suggest this case was otherwise more complex than most civil actions. [ 22 ] Regarding the appellants’ diligence or lack of diligence in pressing the action forward, she noted that the appellants had offered no evidence about “what, if anything, [they] did between January 2018 and June 2020 to advance the litigation” (at para 23).

While the Chambers judge acknowledged the evidence the appellants had provided about the fact that their first lawyer, Mr. Ozirny, had been in a car accident in 2019 and that he was having medical issues in 2020 which were hindering his ability to devote time to the case, she also made the following observations:

[24] … There is no evidence before me as to exactly when the accident occurred or whether the lawyer’s medical issues caused by the accident impacted on the lawyer’s ability to advance the action before June 2020. There is also no evidence before me as to any attempts made by the plaintiffs or their original lawyer between January 2018 and June 2020 to address the fact that the action had not notably progressed since January 2018.

Finally, there is no evidence that the plaintiffs or their original lawyer communicated with the defendants about the action in any way during this time period, except for the request for particulars and response in February and March 2018. [ 23 ] The Chambers judge also addressed the appellants’ contention that the Covid-19 pandemic, the public health orders that resulted from it, and the impact those orders had on court proceedings, had been responsible for a portion of the delay. However, she noted that “Ms.

Mostad’s evidence establishes that the plaintiffs first learned about this [i.e., the impact that Covid-19 and the resulting public health orders had on scheduling in the Court of Queen’s Bench] in June 2020 when their original lawyer advised them of it.

There is no evidence before me that the plaintiffs attempted to take any action prior to or after June 2020 that was impacted by the pandemic” (at para 25). [ 24 ] On this point, the Chambers judge concluded that, on the basis of the evidence before her, the delay between January of 2018 and June of 2020 was inexcusable. [ 25 ] She then examined the period of delay that occurred between June of 2020, when Mr. Ozirny advised the appellants that he was unable to devote significant time to the case, and December of 2021, when they retained new counsel.

The Chambers judge noted that there was “no evidence … as to any steps taken by the plaintiffs to address the stated limitations of their original lawyer between June 2020 and September 2020” (at para 28). She also acknowledged the evidence, provided in Ms. Mostad’s affidavit, that the appellants had had difficulty retaining new counsel, and that they had contacted 11 different law firms before finding a lawyer who would take their case.

She concluded that a portion of the delay in the period from September of 2020 to December of 2021 could be excused on that basis, but not all of it, because she believed that “such a search might reasonably be expected to take up to three or four months in the circumstances of this action” (at para 31). She found the delay beyond that three or four-month period to be inexcusable. [ 26 ] The Chambers judge also examined the period of delay between December of 2021 and September of 2022, in light of the plaintiffs’ contention that this period should be excused because of the time it took for their new lawyer, Mr.

Waldmann, to review the file and organize documents. Once again, she found that a reasonable time frame to attribute to this work was a period of three to four months.

She held that “[b]eyond a period of three to four months, the remainder of the delay between December 2021 and September 2022 is inexcusable” (at para 33). [ 27 ] Ultimately, the Chambers judge concluded that “the vast majority of the inordinate delay since January 2018 is also inexcusable” (at para 34). [ 28 ] Finally, the Chambers judge proceeded to the third step in the ICC framework, which she described as requiring her “to collectively (not mechanically) weigh a number of non-exhaustive relevant factors taking into account the on-the-ground realities of litigation and with the aim of achieving a result which is just” (at para 35). [ 29 ] In that respect, the Chambers judge first considered the prejudice that would be caused to the respondents if the action were allowed to proceed.

She found that the respondents would be significantly prejudiced by the delay, primarily because one of them, Mr. Leonard, had passed away. She also observed that Mr.

Leonard’s death was significant, because the matter had not yet proceeded to questioning, and his evidence “whatever it might have been, has been permanently lost” (at para 38), and that this affected not only the ability to defend the claim against him, but also the ability of the other defendants to defend the claims against them. [ 30 ] Under the third step of the ICC test, the Chambers judge also considered the length of the inexcusable delay, which she found to be “significant” (at para 39) and the early stage at which the litigation stood.

She assessed the impact of the inexcusable delay on the respondents, noting that the “nature of the plaintiffs’ claim” called into question “the professional, business and personal reputations of the defendants” (at para 41). [ 31 ] The Chambers judge turned her mind to the context in which the delay occurred as well. In that regard, she made the following observations: [42] There is no evidence that the defendants have pressed the plaintiffs to move the action ahead. In fact, one of the defendants, SGI, has yet to file an affidavit of documents.

While the defendants may not have a positive obligation to move the action forward, their failure as a group to press the plaintiffs and SGI’s failure to file an affidavit of documents tends to partially mitigate the severity of the plaintiffs’ delay. [ 32 ] The Chambers judge considered the reasons offered for the delay, noting that she had accepted some of the explanations provided by the appellants as excusing a portion of the delay from June 2020 until September 2022.

As for the role of counsel in causing delay, the Chambers judge acknowledged the appellants’ argument that much of the responsibility for their delay was attributable to the medical issues of their original lawyer but found that there was “insufficient evidence … as to what role, if any, the plaintiffs’ original lawyer’s medical issues played in causing delay prior to June 2020” (at para 44). The Chambers judge also weighed considerations of public interest.

She noted that there was a public interest in holding parties, especially public agencies, to account for violations of privacy but, by the same token, there was also a public interest in seeing litigation proceed expeditiously. [ 33 ] In the end, the Chambers judge summed up her decision by saying: [46] When the circumstances of this action are viewed in light of the factors discussed above, there is some support for the positions taken by both the plaintiffs and the defendants on the applications.

Factors such as the length of the delay, the stage of litigation and prejudice to the defendants, in particular, recommend dismissal of the action. The context in which the delay occurred, in particular the inaction of the defendants, weighs in support of allowing the action to proceed.

The consideration of other factors tends to suggest a more neutral position. [47] Overall, after balancing the factors collectively rather than mechanically and taking into account the on-the-ground realities of litigation, I am satisfied that, on the basis of the analysis above, it would not be just to allow this action, which I have found to be

characterized by inordinate and inexcusable delay on the part of the plaintiffs, to proceed. [34] With that, the Chambers judge dismissed the action. III. Analysis A. The appellants’ arguments [35] As I understand their submissions, the appellants contend that the Chambers judge made five errors in applying Rule 4-44 todismiss their claim: (

a) failing to properly consider shortcomings in the performance of their counsel; (

b) placing undue significance on the death of Mr. Leonard when considering the prejudice component of the ICC test; (

c) failing to give proper consideration to the conduct of the respondents that contributed to the delay; (

d) failing to properly consider the delay caused by the Covid-19 pandemic; and (

e) failing to assign proper weight to public interest considerations that militated in favour of permitting the action to proceed. B. The fresh evidence application [36] In support of their arguments on this appeal, the appellants have applied to introduce evidence that was not put before theChambers judge.

They say this evidence should be admitted on the appeal because it provides a valid explanation for the delay and showsthat it was only the incompetence of their lawyer that kept this evidence from the Chambers judge. [37] Applications to introduce evidence on appeal that was not before the court of first instance are assessed under the test set out inR v Palmer, (SCC), [1980] 1 SCR 759 at 775 [Palmer], and recently reaffirmed in Barendregt v Grebliunas, 2022 SCC 22at paras 2–3, 469 DLR (4th) 1 [Barendregt]. This test requires the party seeking to introduce the evidence to establish four things: (

a) the evidence could not, by the exercise of due diligence, have been obtained for the original hearing; (

b) the evidence is relevant, in that it bears upon a decisive or potentially decisive issue; (

c) the evidence is credible, in the sense that it is reasonably capable of belief; and (

d) the evidence is such that, if believed, it could have affected the result at the hearing. [38] Cutting directly to the bottom line, I am not persuaded that the evidence the appellants seek to introduce here clears the hurdlerequired by the Palmer/Barendregt test. The fundamental problem with their application is that all of the evidence they seek to introduceon the appeal was evidence they had in their possession and were in a position to lead before the Chambers judge, had they chosen to doso.

In short, with the exercise of due diligence, this was all evidence that could have been led at the original hearing. [39] In Barendregt, the Court made it clear that the requirement for due diligence remains an important part of the fresh evidenceanalysis, because it assists in preserving the “distinction between the roles of trial and appellate courts”, and “safeguards the importance offinality and order for the parties and the integrity of the judicial system” (at paras 40 and 43, respectively).

The appellants’ applicationfails on this criterion alone. [40] However, even if the appellants had persuaded me that they had not failed to exercise due diligence in adducing the evidence,they would not have satisfied me that the evidence should be admitted on appeal. This is because it does not meet the standard under otherbranches of the Palmer/Barendregt test. [41] In that respect, much of the evidence the appellants seek to tender is aimed at supporting the assertion that their lawyerperformed incompetently in the hearing before the Chambers judge.

As I will discuss below, ineffective assistance of counsel is not alegitimate ground of appeal in the circumstances of this case. Accordingly, the evidence that pertains to the performance of counsel is notrelevant and, for that reason, cannot be admitted. Moreover, I am unable to see that any of the proposed fresh evidence would have metthe fourth criterion under Palmer/Barendregt, namely that, if believed, it could be expected to have affected the result at the hearing. Thisis because, as I see it, the proposed fresh evidence all falls into one of three categories: (

i) evidence that is irrelevant to the issues thatdetermine a Rule 4-44 application; (ii) evidence that was already before the Chambers judge (or contains information of which she wasaware); or (iii) evidence that does not assist the appellants’ position. None of this could have affected the results in the appellants’ favour. [42] Accordingly, in my view, the application to introduce fresh evidence must be dismissed. C.

Standard of review [43] Before turning to the assessment of the appellants’ arguments, it is necessary to say a word about the governing standard ofreview and the role of an appellate court in an appeal from a decision of the sort made by the Chambers judge in this case. [44] In the most basic terms, an appeal is not a “do-over” or a “start-from-square-one” hearing. The role of an appellate court is toreview the decision of the first-instance decision maker to determine if it is the product of a reversible error. The decision under appeal in

this case, namely one that dismissed an action because of delay pursuant to Rule 4-44, was discretionary in nature and, as a result, we arenot entitled, as an appellate court, to simply remake the decision from the ground up (Taylor v Moose Jaw Downtown and Soccer/FieldHouse Facilities Inc. (Mosaic Place), 2021 SKCA 123 at para 13 [Taylor]). The standard of appellate review that applies to discretionarydecisions depends on the nature of the error that is alleged.

Errors of law are reviewable on a correctness standard, while alleged errors offact or mixed fact and law are reviewable on a standard of palpable and overriding error (MacInnis v Bayer Inc., 2023 SKCA 37 at paras38-39).

In the present circumstances, this means we may only interfere with the Decision if we are persuaded that the Chambers judgemade a palpable and overriding error in her assessment of the facts (including by misapprehending or failing to consider materialevidence), or if she made a legal error by failing to correctly identify the legal criteria which governed the exercise of her discretion or bymisapplying those criteria (Taylor at para 14; Kot v Kot, 2021 SKCA 4 at para 20, 63 ETR (4th) 161). D.

The principles that govern applications under Rule 4-44 [45] Rule 4-44 permits a judge of the Court of King’s Bench to dismiss a claim on the basis that there has been inordinate andinexcusable delay. It reads as follows: 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 ofjustice that the claim proceed; or (

b) make a procedural order or any other order provided for by these rules. [46] In Taylor, Richards C.J.S., referring to this Court’s decision in ICC, described the framework a judge is to apply when a partybrings an application to strike a claim under Rule 4-44. He said: [17] The leading case in this area is ICC. There, the Court laid out the following framework for analyzing an application to strike aclaim for want of prosecution: [43] The first step, as set out in Carey v.

Twohig (SK KB), [1973] 4 WWR 378 Sask QB] is an inquiry about whetherthe defendant has established that the delay in moving a case ahead has been inordinate. This will involve considering the time theplaintiff has taken to get the litigation to the point where the application to strike is brought and comparing that lapse of time to whatmight typically be expected in a case of similar complexity.

This is necessarily a matter of informed judgment grounded in the overallexperience 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 atdetermining whether it is excusable. This inquiry will entail consideration of the nature of the claim, the diligence with which the claimhas been pressed by the plaintiff, and the specific reasons offered as to why the matter has not moved more quickly.

A wide variety offactors 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 tohave been both inordinate and inexcusable, it should not consider the issue of “serious prejudice” as a discreet question. Rather, it shouldmove directly to the issue of whether it is in the interests of justice that the case proceed to trial notwithstanding the delay and shouldconsider 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 ofthe 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 stageof the litigation; (

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

e) the context in which the delay occurred; (

f) the reasonsoffered for the delay; (

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

h) the public interest. [47] While the Court in Taylor confirmed that it is the plaintiff in an action who is ultimately accountable for its progress, it alsonoted that the conduct of the defendant is a relevant consideration in determining whether a claim should be struck under Rule 4-44. Inthat regard, the conduct of the defendant may, depending on the circumstances, bear on the findings made at any or all of the three stepsof the ICC test. For example, if the actions of the defendant increase the complexity of the case, that may have a bearing on the first ICCconsideration of whether the delay is inordinate.

If a defendant “delays unnecessarily or unjustifiably in taking a step in the litigationwhen it has an obligation to act” under the Rules, that will bear on whether or not the delay is excusable, as per the second step of the ICCtest (at para 23). And, a defendant’s conduct can also be relevant at the third step of the analysis mandated by ICC, as Richards C.J.S.noted: [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 inthe interests of justice that the case proceed to trial notwithstanding the delay.

In this regard, a judge is to consider “all the relevantcircumstances” including, as per paragraph 45(

e) of ICC, “the context in which the delay occurred”. In that paragraph of ICC, it is notedthat defendants “are generally understood to have no positive obligation to move litigation forward” but that, nonetheless, “if it can beshown 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 claimproceed”. That qualification does not, of course, undermine the fundamental notion that it is the plaintiff who has the root responsibilityfor advancing a file.

The significance of a defendant’s failure to press the plaintiff for progress will depend on the relevant context and thedetail of what transpired. On a similar theme, if a defendant has failed unjustifiably or unreasonably to move a file forward incircumstances where it has an obligation to act, this will also cut in favour of allowing the matter to proceed to trial. The more significantsuch matters are, the more they will weigh against granting an application to strike the claim. E. Applying the principles to the appellants’ arguments

1. The Chambers judge’s treatment of the conduct of the appellants’ counsel [48] The appellants contend that the Chambers judge failed to consider the ineffective conduct of their lawyers. They say their firstlawyer, Mr. Ozirny, had been in a serious car accident in the early fall of 2019, and had advised them that he would only be working part-time in the aftermath of it. The appellants say that, despite the fact they communicated in a timely way with Mr. Ozirny, and urged him topress the case forward, he failed to do so. As for the performance of their second lawyer, Mr.

Waldmann, the appellants contend that hefailed to tender evidence that would have provided an explanation for certain periods of delay, including steps they had taken to try toretain new counsel after Mr. Ozirny ceased representing them, and the fact that he made errors in filing a notice of change ofrepresentation. The appellants say the Chambers judge erred in fact and law by failing to properly consider all of this. [49] I would not give effect to this argument.

There are several reasons for this. [50] First, as the respondents point out, incompetence of counsel was not an issue the appellants raised before the Chambers judge.As a matter of general principle, appellate courts discourage new arguments on appeal that were not raised in the court below, especiallywhere it might have been necessary to adduce evidence to support, or respond to, those arguments (see, for example: Tyacke v Tyacke,2021 SKCA 80 at para 56, [2021] 12 WWR 628; and Silzer v Saskatchewan Government Insurance, 2021 SKCA 59 at para 36). [51] Second, and perhaps more importantly, incompetence of counsel, at least traditionally, has generally been seen as a viableground of appeal in civil matters only in very limited circumstances, such as cases involving a particular overriding public interest orengaging the interests of vulnerable persons such as children or the mentally disabled, or cases where a party to the litigation is complicitin the failure of counsel opposite to attain a reasonable standard of representation (see, for example: D.W. v White (2004), (ON CA), 189 OAC 256 (Ont CA) at para 55).

Circumstances of that nature do not exist here. [52] Third, and contrary to what the appellants suggest, the Chambers judge considered the role that Mr. Ozirny had played in thedelay and factored that into her analysis. In that regard, she accepted that the complexity of the action, being one that involved a relativelynovel cause of action and multiple plaintiffs, meant that advancing the case could be somewhat unwieldy. However, she also observedthat there was no evidence before her about what, if anything, the appellants had done to move the case forward between January of 2018and June of 2020.

The Chambers judge recognized that there was evidence Mr. Ozirny had been in a car accident in 2019, but alsoobserved that there was no evidence before her as to exactly when that had occurred or how it might have impacted his ability to move thecase forward. Nor was there any evidence that the plaintiffs took any steps to address their concerns about Mr. Ozirny’s ability to continuewith the case before he withdrew in September of 2020. The Chambers judge also recognized that a portion of the delay was excusablebecause the plaintiffs had difficulty arranging for new counsel after Mr.

Ozirny withdrew. [53] In short, to the extent that there was evidence before her concerning the way in which the actions of the appellants’ counselcontributed to the delay, the Chambers judge’s reasons demonstrate that she properly considered that evidence within the ICC framework.Accordingly, I would not give effect to this argument. 2. The significance the Chambers judge ascribed to the death of Mr. Leonard under the ICCframework [54] The appellants submit that the Chambers judge erred, when considering the prejudice component of the ICC test, by placinggreater significance on Mr.

Leonard’s death than was warranted. The appellants assert that Mr. Leonard’s death had “no bearing” on thecase because SGI admitted, through its investigation report, that he was never investigated for his role in the unlawful accessing ofinformation. [55] Once again, I cannot accept the appellants’ argument on this point. Mr. Leonard was a named defendant. Considering thenature of the claim, and his connection to the other two individual defendants, it is patently obvious that the loss of the evidence he mighthave been able to provide would be prejudicial to all of them. To the extent it was alleged that Mr.

Leonard had participated in unlawfullyaccessing the private information of the appellants, his state of mind and his explanation for his actions would be highly relevant to notonly the claim against him, but as against the other defendants as well. As the Chambers judge noted, because the action had notprogressed beyond mandatory mediation and no questioning had been conducted, Mr. Leonard’s evidence had been permanently lost. TheChambers judge’s finding that this caused “significant prejudice” to the defendants is factual in nature and is entitled to deference. 3.

The Chambers judge’s consideration of the conduct of the respondents that contributed to thedelay [56] The appellants contend that, when applying the ICC framework, the Chambers judge failed to properly consider conduct on thepart of the respondents that produced, or contributed to, delays in the progress of the action. [57] In this regard, the appellants point to three specific aspects of the respondents’ conduct that caused delay that they say theChambers judge failed to properly account for.

First, the appellants note that, even as of the date of the respondents’ Rule 4-44application, SGI still had not filed its affidavit of documents, in violation of Rule 5-5(3). Second, the appellants contend that the evidencebefore the Chambers judge showed that the respondents were content to simply allow the matter to sit idle until Mr. Leonard’s death.Third, the appellants point to the fact that the respondents did not file their statements of defence within the time required by the Rules andhad sought the indulgence of appellants’ counsel not to note them for default.

The appellants contend that these facts effectively amountedto a complete explanation for most of the delay in proceedings and ought to have weighed heavily in favour of permitting the matter toproceed. [58] I reject this argument. [59] It is correct to say, as Richards C.J.S. observed in Taylor, that a defendant’s conduct may be relevant at both the second step(i.e., the question of whether the delay is excusable) and the third step (i.e., consideration of the interests of justice) of the ICC test.Nevertheless, judges must remain careful not to impose a plaintiff’s obligation to move litigation forward on a defendant (Taylor at paras

23–25 ; see also: ICC at para 44 ; Saskatoon Trading Company Limited v Hergott, Duval, Stack and Partners , 2013 SKCA 42 at para 38 , 362 DLR (4 th ) 67; and Huard v The Winning Combination Inc. , 2022 SKCA 130 at para 73 ).

In the end, when “adjudicating an application to strike for want of prosecution, all of the considerations related to a defendant’s conduct must … be approached with the appropriate level of practicality, nuance and realism” and the defendant’s actions, like those of the plaintiff, “must always be evaluated in context and with an appreciation for the overall flow of the litigation” ( Taylor at para 27 ). [ 60 ] In that regard, it is clear from the Chambers judge’s reasons that she did not overlook the fact that SGI had breached Rule 5- 5(3) by not providing the appellants with its affidavit of documents and was still in breach of that Rule when the respondents applied for an order under Rule 4-44.

The Chambers judge explicitly recognized there was evidence before her, in the form of Ms. Mostad’s affidavit, that SGI’s failure to produce an affidavit of documents had contributed to the delay in the proceedings, by limiting the appellants’ ability to move the matter forward. However, against that, she balanced the fact that there was no evidence that the plaintiffs had done anything to pursue the production of SGI’s affidavit of documents between the time it became due in November of 2017 and June of 2020.

In fact, but for a single letter from the appellants’ counsel in November of 2020 requesting that SGI deliver its affidavit of documents, there was no evidence that the appellants took any other steps to pursue production of that item. In short, the Chambers judge recognized SGI’s procedural shortcoming, but concluded, in light of all of the circumstances, that not much weight should be assigned to that factor. [ 61 ] The Chambers judge was also aware of the fact that the respondents had done little to advance the litigation prior to Mr. Leonard’s death.

Under the third step of the ICC analysis, she explicitly noted that there was no evidence that the defendants had been pushing the matter forward and made a clear finding that this factor “partially mitigate[d] the severity of the plaintiffs’ delay” (at para 42). [ 62 ] At bottom, the concern the appellants raise under this line of argument is not so much a contention that the Chambers judge failed to recognize the relevant actions of the respondents that contributed to delay, as it is a complaint about how the Chambers judge weighed and balanced those actions in the ICC analysis.

The weighing of these considerations is discretionary, and I see no reviewable error in the Chambers judge’s approach. [ 63 ] Furthermore, I would point out that, while the appellants now assert that the respondents ought to have been held responsible for the delay that resulted from them asking the appellants’ counsel not to note them for default, even though they had not filed their statements of defence within the time required by the Rules, that argument was not raised before the Chambers judge. But, even if it had been, I do not see how it could have changed the result.

The practice of seeking the indulgence of opposing counsel to not note for default is commonplace in civil litigation and, in the circumstances here, did not result in any delay of significance. [ 64 ] Accordingly, I would not give effect to this aspect of the appellants’ argument. 4. The Chambers judge’s treatment of the delay caused by the Covid-19 pandemic [ 65 ] The appellants contend that the Chambers judge failed to properly consider the effects of the Covid-19 pandemic on delay.

They assert that public health orders issued in March of 2020 effectively shut down the courts and prohibited any civil actions from moving forward for a significant period of time. [ 66 ] I reject this argument as well. First, the Chambers judge explicitly considered the effect of the pandemic and concluded that there was no evidence concerning any steps the appellants had tried, but were unable, to take because of it. In that respect, she said: [25] The plaintiffs also note the impact of the pandemic on court proceedings, specifically the questioning stage of litigation, but Ms.

Mostad’s evidence establishes that the plaintiffs first learned about this in June 2020 when their original lawyer advised them of it. There is no evidence before me that the plaintiffs attempted to take any action prior to or after June 2020 that was impacted by the pandemic.

Further, as recently observed by Robertson J. in Saskatchewan Crop Insurance Corporation v Gustafson , 2022 SKQB 5 at para 49 , any disruption to court proceedings in 2020 due to the pandemic was “relatively contained” and the courts “quickly adapted to allow proceedings to continue”. [ 67 ] Moreover, this aspect of the appellants’ argument – i.e., that no steps could have been taken to move the matter forward between March 26, 2020, and July 9, 2021, because of public health orders that limited in-person gatherings – does not reflect the true nature of the effect that Covid-19 had on proceedings in what was then the Court of Queen’s Bench.

In this respect, the appellants are incorrect to assert that only urgent matters were being heard during this time. But, perhaps more importantly in the analysis under Rule 4- 44, the appellants’ position ignores the reality that not all steps in civil litigation involve in-person court appearances or public gatherings. In fact, much of what is necessary to move a civil action forward can be accomplished through correspondence, telephone calls, video conferencing, or any number of other remote processes. At bottom, I find no error in the Chambers judge’s approach to this factor. 5.

The weight assigned to public interest considerations [ 68 ] The appellants also contend that the Chambers judge erred by failing to consider the public interest factors that they say weigh heavily in favour of permitting the action to proceed, notwithstanding the delay. These include the following: (

i) that “the defendants’ conduct [in committing the breaches of privacy] was intentional”; (ii) that the case would be important as a precedent, given the relatively novel nature of the claim; and (iii) that there is a strong public interest in seeing SGI – as a Crown corporation – held to account. Distilled to their essence, these are all arguments that the Chambers judge failed to place adequate weight on these factors under the public interest consideration of the ICC test.

However, as I read the Decision , the Chambers judge was well aware of each of these points and thoroughly addressed the public interest consideration when applying the ICC framework. There is no basis to interfere here. IV. Conclusion [ 69 ] For the foregoing reasons, I am not persuaded that the Chambers judge erred in any of the ways alleged by the appellants. I would deny the application to introduce fresh evidence and dismiss the appeal.

[ 70 ] Generally, the successful party in an appeal is entitled to costs. I see no reason to depart from that general rule. Bearing in mind the nature of the issues in play and the fact that the appeal involved a fresh evidence application, I would award aggregate costs, in favour of each respondent, in the fixed amount of $1,000. To be clear, this means that the appellants owe a total of $1,000 in costs to Ms. Komodowski, $1,000 to Mr. Leonard’s estate, $1,000 to Mr. Komodowski, and $1,000 to SGI. “Kalmakoff J.A.” Kalmakoff J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Drennan J.A.” Drennan J.A.