Dismissal for Delay in Manitoba and the Buhr v Buhr 2021 MBCA 63 Decision Part 2

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Article2021 | 11 | 03

Dismissal for Delay in Manitoba and the Buhr v Buhr 2021 MBCA 63 Decision

Part 2

This article serves as Part II to a two part series on recent Manitoba cases dealing with dismissals for delay.

Some six months prior to the Buhr decision, the Manitoba Court of Appeal had the opportunity to provide guidance on the operation of Rule 24.01. Rule 24.01 is the traditional dismissal for delay rule by which parties would have governed themselves prior to the amendments to the legislation on January 1, 2018. However, Rule 24.01 itself saw relatively significant revisions as part of these amendments, leading to questions surrounding the interpretation and application of the revised rule. These questions were answered by the Court of Appeal in The Workers Compensation Board v Ali, 2020 MBCA 122.

The Ali action involved a medical malpractice claim against a physician resulting from his treatment of an individual’s capitate fracture. The allegation was that the physician had failed to properly diagnose and treat the capitate fracture at first instance, resulting in the need for further surgical intervention and a resulting permanent disability to the individual’s wrist.

The action itself was being advanced by the Workers Compensation Board after the individual’s right of action to recover damages had vested in the Workers Compensation Board following their indemnification of the individual pursuant to Part 1 of The Workers Compensation Act, C.C.S.M. c. W200 (as it then appeared).

On April 25, 2007, a statement of claim was filed seeking general damages, damages for loss of wages, special damages for medical expenses, interest and costs. On March 2, 2009, approximately two years later, a statement of defence was filed in which the defendant denied that he was negligent.

The Plaintiff provided two medical expert reports on May 13, 2011 and discoveries were held on or about April 9, 2012. Following discoveries, a period of approximately two years passed without any movement on the file. On April 7, 2014, counsel for the Defendant wrote to counsel for the Plaintiff and advised that it had been 9 years since the accident occurred and two years since examinations were conducted. The Defendant’s counsel indicated that if the Plaintiff intended to proceed with the litigation, it should do so expeditiously, failing which he expected that he would be instructed to move to dismiss the matter for delay.

On May 22, 2014, the Plaintiff provided answers to some outstanding undertakings and indicated that once all of the answers to undertakings had been completed, they would be proceeding to set the matter down for a pre-trial conference. Over the next couple months, the Defendant’s counsel requested the balance of the Plaintiff’s answers to undertakings.

The balance of the undertakings were provided on January 6, 2015, at which time counsel for the Defendant sought clarification to some of the answers. On December 9, 2015, the Plaintiff provided revised answers to some of the undertakings and advised that a wage loss report was being obtained.

On February 28, 2017, the Plaintiff produced an actuarial report and a list of medical expenses and the Plaintiff’s counsel indicated that a comprehensive settlement proposal was being prepared. The comprehensive settlement proposal was provided to the Defendant on June 1, 2018, following which the Defendant’s counsel requested updated medical information and the Plaintiff’s consent to an independent medical examination. On September 11, 2018, the Plaintiff consented to the independent medical examination.

On November 14, 2018, the Defendant instead served interrogatories on the Plaintiff. Having received no response, the Defendant moved to dismiss the action for delay on January 9, 2019. The Defendant’s motion was unsuccessful at first instance before the presiding master and unsuccessful again on appeal to the motion judge. The Defendant then appealed to the Manitoba Court of Appeal.

The Defendant’s appeal was successful. On appeal, Justice Burnett explained there are two issues to be addressed on a motion to dismiss for delay pursuant to the revised Rule 24.01: first, whether or not there had been delay in the action; and second, whether or not the delay had resulted in significant prejudice.

Justice Burnett indicated that when assessing the issue of delay, the Court must decide whether the delay is both inordinate and inexcusable. Justice Burnett noted that the wording of the rule in conjunctive and held that the moving party bears the onus of establishing both requirements.

Justice Burnett then explained that the proper approach to be taken when deciding whether a delay is “inordinate and inexcusable” is to determine whether the delay is “in excess of what is reasonable having regard to the nature of the issues in the action and the particular circumstances of the case”. This involves consideration of, among other things, the Eadie factors articulated in the Law Society (Manitoba) v Eadie, 1988 CarswellMan 157 (MB CA). Those factors are as follows:

 

(i) the subject matter of the litigation;

(ii) the complexity of the issues between the parties;

(iii) the length of the delay;

(iv) the explanation for the delay;

(v) the prejudice to the other litigant.

Justice Burnett further articulated that the Court must also consider any other relevant circumstance, including a consideration as to the current status of the litigation in comparison to a reasonable comparator and the role of each party in the overall delay.

As it related to the onus of proof, Justice Burnett indicated that while the moving party bears the onus of proving that delay is inexcusable, as a rule, until a credible excuse is made out, the natural inference would be that inordinate delay is inexcusable. Thus, upon inordinate delay being established, the onus upon the moving party to establish inexcusable delay will ordinarily be met, and the Plaintiff will be called upon to justify the delay. The issue is then whether the nature and quality of the evidence provides the judge with a clear and meaningful explanation for the delay in the particular circumstances of the case. Justice Burnett explained that, if the delay is found to be inordinate and inexcusable, significant prejudice to the moving party is presumed (see r 24.01(2)). The presumption is rebuttable.

Justice Burnett also stated that if the delay is not inordinate and inexcusable, the court may nevertheless dismiss the action if there is evidence that the delay has resulted in significant prejudice to the moving party.

Finally, Justice Burnett held that even if the moving party establishes delay and significant prejudice, the court may refuse to dismiss the action. This decision is an exercise of judicial discretion. That said, Justice Burnett stated that this residual discretion should only be exercised in exceptional circumstances where there is a compelling reason, and the compelling reason must be clearly articulated. In the absence of a compelling reason, a decision not to dismiss an action would be an injustice.

Having articulated the prevailing legal framework, Justice Burnett turned his attention to the facts at hand. Justice Burnett held that the overall delay in the action had been well in excess of what was reasonable having regard to the nature of the issues in the action and the particular circumstances of the case. Justice Burnett held that the action itself was a relatively straightforward medical malpractice claim. Justice Burnett noted that at the time the motion was filed in January 2019, pleadings had been closed for 10 years, the action had been ongoing for nearly 12 years, and 13.5 years had passed since the Defendant had treated the individual.

Justice Burnett also held that an examination of the chronology revealed numerous periods of unexplained delay, virtually all of which was attributable to, or within the control of, the Plaintiff. Justice Burnett identified a number of examples of this delay, including:

  • Approximately two years elapsed between the filing of the statement of claim (April 25, 2007) and the filing of the statement of defence (March 2, 2009).
  • Preliminary documentary discovery was not completed for nearly five years following issuance of the statement of claim.
  • There were two years between the examinations for discovery (April 10, 2012) and the next communication between counsel (April 7, 2014).
  • Although answers to some of the plaintiff’s undertakings were provided six weeks after the discoveries (May 22, 2014), further answers and information were provided in “bits and pieces” over the next two and one-half years.
  • On February 28, 2017, plaintiff’s counsel advised that a complete settlement proposal would be provided but it was not provided for 15 months (June 1, 2018).
  • There was a period of nearly seven years between examinations for discovery and the filing of the motion and, although the plaintiff said in May 2014 that it would set the matter down for trial when answers were provided, that was not done until after the motion was decided by the motion judge.

As it related to any explanation for the delay, Justice Burnett held the following:

Simply put, there has been no clear and meaningful explanation of, or justification for, the delay in the particular circumstances of this case. Essentially, the plaintiff says, here is what happened, it has just taken a long time. That is not enough.

As a consequence, Justice Burnett held that it was an injustice for the motion judge to have not dismissed the action when the requirements of Rule 24.01 were met and the appeal was allowed.

In concluding, Justice Burnett took the opportunity to make a few important observations about delay in civil matters. He indicated:

Almost seven years ago, the Supreme Court of Canada made it clear that a shift in culture is required, that when court costs and delays become too great, people simply give up on justice, and that a fair process is illusory unless it is also accessible — proportionate, timely and affordable (see Hryniak v. Mauldin, 2014 SCC 7 (S.C.C.) at paras 25-28). While the Court in R. v. Jordan, 2016 SCC 27 (S.C.C.) was concerned with timely proceedings in the criminal law context, many of its observations also apply in the civil law context. In Jordan, the Court recognised that fair trial interests are affected because the longer a trial is delayed, the more likely it is that a party will be prejudiced in mounting a defence owing to faded memories, unavailability of witnesses, or lost or degraded evidence, and that timely trials are important to maintain overall public confidence in the administration of justice (see paras 20, 25).

(…)

The time has come to stop paying lip service to the phrase “justice delayed is justice denied”. Unreasonable delays in civil matters can no longer be tolerated for numerous reasons, but chiefly because they seriously undermine access to justice.

Conclusion

The Ali case discussed in this article and the Buhr decision discussed in Part I of this series appear to be two significant steps towards the culture shift referred to by the Supreme Court of Canada in Hryniak. Both these decisions offer clear guidance on how Manitoba’s dismissal for delay provisions ought to be interpreted and applied. As a consequence, one would expect that the Ali and Buhr decision will serve as the benchmarks for future proceedings dealing with issues of delay in Manitoba for the foreseeable future.



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