IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100729

Docket: S056803

Registry:
New Westminster

Between:

Cody Van’t
Hullenaar

Plaintiff

And

Matt Wells, Jamus
Flynn, John Doe and

Insurance
Corporation of British Columbia

Defendants

And

Insurance
Corporation of British Columbia and

Home
Insurance Co. – CGU Insurance Company of Canada

Third
Parties

Before:
Master Caldwell

Reasons for Judgment

[1]            
The defendant and third party ICBC applies for an order dismissing the
plaintiff’s claim for want of prosecution.

[2]            
The plaintiff’s claim arose in November of 1997. He says that he was in
his car when he was “boxed in” by two cars being driven by two of the
defendants. He says that the defendant Flynn got out of one of the cars and
struck him in the face with a stick causing damage which ultimately led to the
removal of his eye. He claims damages.

[3]            
The events which led up to the November 1997 event are seriously
contested. This is an important fact because of the lengthy delay and its
effect on memory.

[4]            
All of the parties and most if not all of the witnesses had been
drinking alcohol. Several of the parties, including the plaintiff and at least one
of the named defendants, had fought physically with each other shortly before
the incident.

[5]            
The defendant Flynn agrees that later in the evening the cars came
together and were stopped close to each other; he says that he did approach the
plaintiff’s car, that he picked up a small stick and that he moved to tap on
the driver’s side window. He says that the plaintiff unexpectedly rolled his
window down and was struck accidentally on the side of the face.

[6]            
The defendant Wells says in his Statement of Defence that Flynn struck
the plaintiff with a bat or stick.

[7]            
The defendant/third party ICBC says that the injuries did not arise from
the use or operation of motor vehicles but from a separate assault and that in
any event the long delay has led to it not being able to defend itself against
the claim.

[8]            
In order to assess applications of this type I must focus on four main
questions:

1.       Has there been
inordinate delay?

2.       Is the delay
inexcusable?

3.       Have
the defendants been prejudiced by or are they likely to be prejudiced by the
delay?

4.       Do
the overall interests of justice demand that the action be dismissed?

(see Tundra Helicopters Ltd.
v. Allison Gas Turbine et al, 2002 BCCA 145 and Azeri v. Esmati-Seifabad,
2009 BCCA 133).

Delay – Inordinate and
Inexcusable

[9]            
An inordinate delay is one that is uncontrolled, immoderate or
excessive; by any or all of these descriptions I find that the 13 year delay in
this case is, on its face, inordinate. Having made this finding, I focus on
whether or not the delay is excusable. I find that it is not.

[10]        
The plaintiff was an adult at the time of the incident; he has been
represented by counsel throughout and by present counsel for 7 1/2 years.

[11]        
There is evidence that the plaintiff was in a rehabilitation facility on
two occasions (2003 and 2007) however these total mere months of the overall 13
year period.

[12]        
In the fall of 2003 the plaintiff failed to attend a Rule 30 medical
examination as requested by the defendants; a month later he failed to attend a
second such examination in spite of the fact that he had been ordered to do so
by Master Nitikman. The order of Master Nitikman also required the plaintiff to
pay the missed appointment fee of $740 forthwith; there is no evidence that
part of the order has been complied with either.

[13]        
The original trial date of December 2003 was cancelled at the plaintiff’s
request as he was in rehab. While plaintiff’s counsel presents evidence of
attempts to reset the trial and to schedule a mediation, I find that such
efforts were cursory at best and were not a true attempt to move the matter
forward in any kind of a timely manner.

[14]        
There is also evidence that part of the delay may have been for tactical
reasons. Plaintiff’s counsel at least implies that he was awaiting the outcome
of two cases from the Supreme Court of Canada dealing with the issue of the use
and operation of a motor vehicle. Those decisions were rendered in 2007 and
were not favourable to the plaintiff’s case.

[15]        
I find that none of the evidence provided on behalf of the plaintiff
provides or constitutes a legal or factual excuse for the inordinate delay.

Prejudice to the
Defendants

[16]        
Once inordinate and inexcusable delay is found, a rebuttable presumption
of prejudice to the defendants arises; see Tundra Helicopters. None of
the evidence presented to me rebutted that presumption.

[17]        
There is some evidence that the plaintiff and the defendant Flynn were examined
for discovery in 2002 and 2003 respectively; minimal if any examination of the
defendant Wells has occurred. None of the transcripts of the discovery were
produced.

[18]        
This is a case which will depend largely on the evidence of the parties
who were present at the time of the event. The evidence at trial will be the13
– 15 year old recollection evidence of witnesses who had spent a significant
part of the evening drinking alcohol at private parties and commercial bars.

[19]        
In my view the delay of 13 years, which will be almost 15 years by the
time of trial, has prejudiced and will continue to prejudice the defendants in
their ability to present a full and proper defence.

[20]        
This is an unfortunate case. The plaintiff appears to have suffered
significant injury. It is hard to imagine why the matter was not moved forward
with anything approaching reasonable speed, however the plaintiff alone is
responsible for the delay. Based upon the evidence presented, the interests of
justice do not mitigate in favour of allowing the plaintiff to continue his
action, rather they favour the dismissal sought by the defendant/third party.

[21]        
The action is dismissed for want of prosecution. The applicant ICBC is
entitled to its costs of this application as sought; no other party sought or
is entitled to its costs.

“Master
Caldwell”