IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100326

Docket: M49974

Registry:
Nanaimo

Between:

Bradley Mackie

Plaintiff

And:

Jennifer McFayden and Jonathon Olson

Defendants

Before:
Master Bouck

Reasons for Judgment

THE APPLICATIONS

[1]          
The plaintiff and defendant Olson bring cross applications, both
relating to the apparent dilatory conduct of this Rule 66 proceeding.

[2]          
The defendant seeks an order that the claim be dismissed for want of
prosecution. In the alternative, the defendant asks that the action cease to be
subject to Rule 66.

[3]          
The plaintiff’s subsequently filed motion seeks orders that the writ of
summons be renewed for 12 months so that it may effect substitutional service
on the defendant McFayden.

[4]          
These applications require a consideration of what constitutes
inordinate and inexcusable delay in the prosecution of a proceeding.

THE FACTS

[5]          
This is a personal injury action. The plaintiff alleges that he was
injured while a passenger in a vehicle driven by the defendant Olson and owned
by the defendant McFayden. Mr. Olson was driving the uninsured vehicle without
the defendant McFayden’s consent.

[6]          
The motor vehicle accident which allegedly caused injury to the plaintiff
occurred on May 7, 2005. The writ and statement of claim was issued (with the
action subject to Rule 66) on April 24, 2007.

[7]          
The defendant Olson was served with the pleadings sometime thereafter at
Wilkinson Road jail in Victoria. An appearance was entered on his behalf on
August 21, 2007. The appearance includes the notation that the person
endorsing the document is “not the solicitor of record”.

[8]          
A second appearance along with a statement of defence was filed ten days
later by Mr. Olson’s present counsel who had been retained by the Insurance
Corporation of British Columbia (“I.C.B.C.”) to defend the proceeding pursuant
to s. 20 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c.
231. The statement of defence denies liability for the injuries allegedly
suffered by the plaintiff.

[9]          
Although a process server was retained by the plaintiff in July 2007,
service was not effected on the defendant McFayden and no further efforts were
made to locate this individual until early 2009.

[10]       
In the meantime, the following steps were taken with respect to the
action:

·        
Lists of documents were exchanged in September 2007;

·        
The plaintiff was examined for discovery in March 2008;

·        
As a result of information disclosed at that examination, the
statement of defence was amended in April 2008 to allege negligence on the part
of the plaintiff as a “hitchhiker”;

·        
At the request of the defence, the plaintiff attended an independent
medical examination in July 2008.

[11]       
As will be observed, with the exception of the document exchange in
September 2007, the steps taken in the action were at the behest of the
defendant Olson, not the plaintiff.

[12]       
In June 2008, Mr. Klear wrote to the plaintiff inquiring as to whether
the defendant McFayden had been served. In that letter, Mr. Klear advises for a
second time that the vehicle driven by the defendant Olson was uninsured and,
as a result, there is no viable cause of action against Ms. McFayden. The
plaintiff is invited to discontinue the action against this defendant.

[13]       
In February 2009, Mr. Klear again wrote to the plaintiff’s counsel
providing information on the whereabouts of Jennifer McFayden. Based on this
information, the plaintiff retained a process server but the attempts at
service were unsuccessful. An affidavit of attempted service was deposed to by
the process server in March 2009.

[14]       
On October 16, 2009, the defendant Olson filed his motion for dismissal
of the action and the alternative relief. The plaintiff’s motion was delivered
one month later.

[15]       
For perhaps obvious reasons, a trial date had never been set.

THE LAW

[16]       
In addressing the issue of want of prosecution, the parties referred to
the following decisions of our Court of Appeal: Tundra Helicopters Ltd. v.
Allison Gas Turbine, 2002 BCCA 145; Busse v. Chertkow, 1999 BCCA
313.

[17]       
While these decisions are indeed the leading authorities from the
appellate court, a more thorough discussion of the principles applicable to the
plaintiff’s application is found in Cal Coast Spas Inc. v. Coast Spas Inc., 2008
BCSC 846. The following principles are set out by Ballance J.:

1. Once litigation is commenced, it
is expected to move forward with due diligence. The court will do all it can to
enforce expedition of a lawsuit;

2. The essential inquiries which
govern an application for dismissal of want of prosecutions are as follows:

a. Is the delay
inordinate?

b. Is the
inordinate delay inexcusable?

c. Has the inordinate delay caused, or is
likely to cause, serious prejudice to the opposing party?

3. Even where all of these factors
are present, a dismissal is not automatic. The court must consider whether, on
balancing the interests between the parties, justice demands that the action be
dismissed;

4. Inordinate delay refers
to the lengthy delay that exceeds the normal time-frame. However, there is no
“absolute measurement” of time after which delay will be considered inordinate.
The determination of inordinate must be considered in the context of the peculiar
circumstances of each case;

5. The starting point for the
measurement of delay is the date on which the proceeding was commenced, not the
date on which the cause of action arose;

6. Some excuse must be provided for
the delay;

7. If the court finds that the
delay was both inordinate and inexcusable, the defendant is presumed to have
suffered prejudice. The question then becomes whether, on a balance of
probabilities, an absence of prejudice has been established;

8. Prejudice may be presumed by
virtue of the fact that the limitation period has expired.

[18]       
With respect to the alternative relief sought, the defendant Olson
relies on Rule 66(8)(c) which provides:

66(6) Subject to subrule (3), this rule applies to an action
if an endorsement in Form 137 is added or attached to the statement of claim or
a statement of defence filed in the action.

…

(8) This rule ceases to apply to an action if

 …

(c) none of the parties to the action applies for a trial
date within 4 months after the date on which this rule becomes applicable to
the action.

[19]       
The law regarding the renewal of the writ is relatively straightforward.
Five factors are to be considered:

1. Whether the application to renew
was made promptly;

2. Whether the defendant had notice
of the claim before the writ expired;

3. Whether the defendant is
prejudiced;

4. Whether the failure to effect
service was attributable to the defendant; and

5. Whether the plaintiff, as
opposed to his solicitor, is at fault.

Imperial Oil Ltd. V. Michelin North America (Canada) Inc.
(2008), 81 B.C.L.R. (4th) 99 (C.A.).

DISCUSSION

[20]       
Although the defendant’s motion deals with what might be described as a
more substantive remedy, it is convenient to first address the application to
renew the writ. If that application fails, the action against the defendant
McFayden may not proceed.

[21]       
The question of delay is relevant to both the renewal of the writ and
the want of prosecution application.

[22]       
In this case, the application for renewal of the writ was not made
promptly. The writ expired in April 2008; the application for renewal was made eighteen
months later.

[23]       
There is no evidence to suggest that Ms. McFayden has had notice of this
claim.

[24]       
Mr. Klear submits that there is prejudice to Ms. McFayden. While ICBC
will defend the claim, it may seek indemnification for damages paid to the
plaintiff.

[25]       
Whether or not that is the case, prejudice may be presumed simply by the
passage of time without the defendant McFayden having to prove actual
prejudice: Mountain West Resources Ltd. v. Fitzgerald (2005), 37
B.C.L.R. (4th) 134 (C.A.). In this case, the writ has been outstanding for
nearly three years.

[26]       
There is no evidence that the failure to renew the writ is the fault of
the defendant McFayden.

[27]       
On the other hand, it would appear that the plaintiff’s solicitors (as
opposed to the plaintiff) neglected to proceed with the application to renew
the writ. Importantly, no explanation whatsoever is offered for this delay. The
plaintiff may have his own remedy in these circumstances: Skolnick v. Wood,
[1981] 2 W.W.R. 649. However, given the defendant Olson’s position that
there is no cause of action against Ms. McFayden, the plaintiff may not
need to seek such relief.

[28]       
Balancing all of these factors, I am persuaded that the writ should not
be renewed. Thus, the plaintiff’s motion is dismissed in its entirety.

[29]       
If I am wrong in that conclusion, I will also consider the defendant’s
motion for dismissal of the action for want of prosecution.

[30]       
The defendant’s motion seeks an order that the “action” be dismissed.
However, the submissions of counsel focused on the dilatoriness in the
prosecution of the action against Ms. McFayden, namely, the service of the
writ.

[31]       
The prosecution of this action against Mr. Olson might be described as
haphazard. No proactive steps were taken by the plaintiff in the prosecution of
this claim after September 2007. However, the plaintiff did attend an
examination for discovery and independent medical examination during this
period. As already noted, these steps were initiated by the defendant Olsen.
Nonetheless, the plaintiff demonstrates a willingness on the part of the
plaintiff to be a participant in the claim. He is not sitting on sidelines for
two years. I conclude that any suggested delay in the prosecution of the claim
against the defendant Olson has not been inordinate within the context of this
particular action.

[32]       
If I am wrong, and the delay in prosecuting the action against the
defendant Olson has been inordinate and inexcusable, then I find that justice
demands the action against Mr. Olson continue for the reasons described in the
preceding paragraph.

[33]       
I have reached the opposite conclusion with respect to the claim against
Ms. McFayden. The delay in proceeding with this claim has been inordinate.

[34]       
The plaintiff has known since July 2007 that he required an order for substitutional
service in order to proceed with the action. He did not pursue such an order
for more than two years. Admittedly, the plaintiff attempted service (thanks to
the defendant Olson’s information) in early 2009. However, by that time, the
plaintiff (or at least his solicitor) should have been well aware that any application
for renewal of the writ (and an order for substitutional service) must be pursued
forthwith. Instead, such an application did not occur for another ten months. It
is reasonable to infer  that the plaintiff’s application for this relief is
merely reactive to the defendant’s motion.

[35]       
There is no explanation or excuse offered for the delay.

[36]       
Prejudice is presumed. No evidence is presented to rebut that
presumption.

[37]       
In the result, the action against Ms. McFayden is dismissed for want of
prosecution.

[38]       
Given that neither the plaintiff nor the defendant Olson has applied for
a trial date, Rule 66 ceases to apply to this action.

[39]       
The defendant Olson has been successful on both motions. He is entitled
to costs of the motions at Scale B in any event of the cause.

                      “C.P.
Bouck”                   

Master
C.P. Bouck