IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110922

Docket: M093321

Registry:
Vancouver

Between:

Steven Leo Ruskey

Plaintiff

And:

Christopher B.
Haggerty and

Marie R.
Bonneville

Defendants

Before:
The Honourable Mr. Justice McEwan

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: In this matter, two applications are before the
court.  One is an application on behalf of the plaintiff for renewal of a
Writ.  The other is an application for dismissal for want of prosecution,
brought on behalf of the defendants by an agent for the Insurance Corporation
of British Columbia, speaking for them, although the defendants have not been
served.

[2]            
The basic facts are that a motor-vehicle accident occurred on September
18, 2007.  The facts asserted suggest that it was a rear-end accident, and that
the plaintiff suffered soft-tissue injuries.  The plaintiff retained counsel
some eleven months after the accident occurred, on August 12, 2008.  Counsel
made some attempts to locate the defendant Haggerty, who was the driver
identified by the Insurance Corporation of British Columbia.  I am advised that
the defendant Marie Bonneville was the owner, and died subsequent to the
accident.

[3]            
In the time between receiving instructions and the issue of the Writ, on
July 3, 2009, counsel was unable to ascertain the whereabouts of the
defendant.  The Writ was delivered to the Insurance Corporation of British
Columbia on May 6, 2010.  Receipt was acknowledged June 2, 2010.

[4]            
On July 3, 2009, a Writ was also issued against the Insurance Corporation
of British Columbia seeking Part 7 benefits, and that was served in May of
2010.

[5]            
Time went by and counsel did not apparently note that the Writ would
expire in July of 2010, so that nothing further was done until the agent for
the plaintiff, seeking to locate the defendants, reported on August 19, 2010
that they could not be found.

[6]            
The matter then went dormant again until May 2, 2011, when affidavits
were sought from the agents who had attempted to locate the defendants.  It was
not until July 26, 2011 that the plaintiff’s counsel advised ICBC of its
intention to renew the Writ of Summons.

[7]            
The evidence is all to the effect that the plaintiff did not have
anything to do with these lapses of time, and that the fault lay with the
solicitor who had been engaged to pursue the claim.  There is however very
scant evidence that the plaintiff was taking any particular interest in the
case, and there is no evidence before the court, including evidence in his
affidavit in support of the application to renew the Writ, that he suffered
more than the bare allegations set out in a very brief statement to the
Insurance Corporation of British Columbia immediately after the accident.

[8]            
I have gone back and forth with counsel, in the colloquy that has taken
place on this application, on the question of whether the court’s discretion
should be exercised with some regard to whether or not there is a meritorious
case.  I say this because, while in most cases of this kind, the fact that the
plaintiff has a viable or arguable base appears to be taken for granted, in
this particular instance, the evidence is so sparse that I am quite unable to
determine whether there is a serious case to be tried, or whether this matter
is effectively de minimus.

[9]            
I have considered carefully whether there should be some onus placed on
the plaintiff to suggest something of the dimensions of the claim before the
court is asked to exercise a discretion to renew a Writ.  While I am not free
from doubt about this, I take some guidance from the case of Seeliger v.
Eagle Ridge Hospital, 2007 BCCA 582, where a question involving a Chambers
judge who did take some account of the merits of a case was before the court. 
After extensive consideration, the Court of Appeal, per Mackenzie J.A.,
concluded that the Chambers judge in that case had erred in his consideration
of the substantive merits of the appellant’s claim, as it was not plain and
obvious that the action was without merit and bound to fail.

[10]        
Applying that test, I cannot say that the plaintiff’s case is bound to
fail, or obviously without merit, although I will say that the scantest
possible material is before the court, as to whether there is a case worth
pursuing.  However, I do not think I can infer from what is before me that it
is plain and obvious that the action is without merit, and bound to fail.

[11]        
Accordingly, I accept that what is before me suggests a claim that is
triable.  I think that leads the court to consider the principles which have
been developed in cases which appear to accept that there is a viable claim.

[12]        
There are several iterations of the principles.  They derive from a case
called Paras v. Moorhead.  The iteration of these principles immediately
available to the court are found in Mackie v. McFayden, 2010 BCSC 399. 
There, Master Bouck set out one iteration of the principles found in Cal
Coast Spas Inc. v. Coast Spas Inc., 2008 BCSC 846, a decision of Madam
Justice Ballance.

[13]        
These were said to be as follows:

1)   Once
litigation has 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 prosecution
are as follows:

(a) Is the delay inordinate?

(b) Is the inordinate delay
inexcusable?

(c) Has the inordinate delay caused
or is it 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 timeframe.  However, there is no absolute
measurement of time after which delay will be considered inordinate.  The
determination of inordinateness 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 is
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.

[14]        
Later in the same Judgment, at paragraph 19, the more typical criteria
are outlined.  They include:

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 is attributable to
the defendant, and

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

[15]        
Those are said to be derived from Imperial Oil Ltd. v. Michelin North
America (Canada) Inc. (2008), 81 B.C.L.R. (4th) 99 (C.A.).

[16]        
Applying those criteria to this case, the application to renew was not
made promptly.  There was unexplained delay from the time that the expiry of
the Writ came to counsel’s attention until many months later, when action was
taken.

[17]        
The question of whether the defendants had notice of the claim before
the Writ expired must be answered in the negative, in that the defendants have
never been served.  That has to be qualified however, by the fact that, from
the earliest days, the Insurance Corporation of British Columbia took an
interest in the case, dealt with the plaintiff, and subsequently dealt with
counsel with respect to this claim.  Indeed, although they say they appear
today as agent for the defendants, they have taken an interest to the
extent of advancing a strong defence to this application to renew the Writ. 
They have also purported to advance, on behalf of the defendants, an
application to have the Writ dismissed for want of prosecution.  Given their
appearance, it appears to me that the question of whether the defendants had
notice or are prejudiced is somewhat complicated, in that if the Insurance
Corporation of British Columbia’s position is that the defendants must be
served before they have any interest in the matter, it is hard to explain what they
are doing here.

[18]        
If, on the other hand, they identify with the defendants in important
respects, including who has to pay if a claim is made out, it is hard to see
how they are not also effectively agents for the defendants with respect to
whether they have notice and whether the defendants are prejudiced.

[19]        
I want to be clear that I do not make the mistake of suggesting that,
because the defendants are insured, it is not important that they be served. 
The action is not engaged until the defendants are in fact served.  But if that
is actually the position, one would expect this matter to have been brought on
an ex-parte basis, not on the basis that someone identified as agent appeared
and made the strong argument in favour of the defendants’ situation.

[20]        
I do not feel I have to reconcile that, except to say that it seems to
me that, if the defendants’ insurer has taken that much of an interest in this
case, it is hard for them to maintain, except in the technical sense that the
defendants have not had notice, or that the defendants are prejudiced.

[21]        
With respect to the remaining criteria, the evidence is all to the
effect that the failure to effect service was attributable, not to the
defendants, but to the solicitor for the plaintiff, who, for reasons that are
not well explained, simply failed to follow through on his responsibilities in
the circumstances.

[22]        
On the material these matters are not the plaintiff’s fault, although, were
merits something that the court was entitled to consider, I would feel obliged
to assess whether the plaintiff, in his apparent lack of interest in the case
himself, should be implicated in the delict for which the solicitor takes the
blame.

[23]        
Taking an overall view of the factors and applying them, including those
which tell against the plaintiff, I am of the view that, because there is no
identified prejudice to the defendants, and taking account of the curious and
ambiguous position taken by the Insurance Corporation of British Columbia in
appearing and purporting to speak for the defendants, and in taking the view
that there is nothing to deal with because the defendants have not yet been
served, I am of the view that there is presently no prejudice to the
defendants’ position.  Although the renewal application due to the delict of
the solicitor was not made promptly, there will be no harm to the renewal of
the Writ.

[24]        
Accordingly, I will direct that the application for renewal of the Writ
for a one-year period be allowed.

[25]        
I do so on the basis that absolutely diligent efforts will be expected
of the plaintiff in serving or finding a substitute way to serve the
defendants, from this day forward, and that with respect to the second
application before me, that being the application to strike for want of
prosecution, although I make no further comment on the position of the
Insurance Corporation of British Columbia in attempting to make such an
application when they are not yet engaged on behalf of the defendants, I will
simply adjourn that application and permit it to be brought in appropriate
circumstances, once the defendants have been served, if it is considered
appropriate to do so.

[26]        
I want to make it absolutely clear that, although I have had
considerable assistance from the Insurance Corporation of British Columbia in
this matter, this must technically be treated as a question of whether the Writ
ought to be renewed as against the plaintiff and defendants who have not yet
been served, and I have made my ruling accordingly.

“McEwan J.”

________________________________

The Honourable Mr. Justice McEwan