Federal Court Decisions

     T-3035-89

B E T W E E N :

     TERRENCE DOUCET

     Plaintiff

     - and -

     HER MAJESTY THE QUEEN and

     CANADA POST CORPORATION

     Defendants

     REASONS FOR ORDER

MacKAY J.:

     The defendants move, pursuant to Rule 440 of the Federal Court Rules, C.R.C. 1978, c.663 as amended, for an Order that the plaintiff's action be dismissed for want of prosecution. That Rule provides, in part relevant for this proceeding, as follows:

440.(l) If the defendant does not, within three months after the close of pleadings, receive notice of trial or have knowledge of an application for an order fixing the date for trial, he may, before notice of trial or of an application for an order fixing the date for trial, apply to the Court to dismiss the action for want of prosecution; and on the hearing of such application, the Court may order the action to be dismissed accordingly, or make such order on such terms as seem just.

     By Statement of Claim, filed December 28, 1989, the plaintiff claims against both defendants, jointly and severally, for general and special damages, interest and costs of the action based on personal injuries allegedly suffered by the plaintiff, as a result of a fall on stairs leading to the entrance to a Canada Post Office in Moncton, N.B., which was located in premises owned by Her Majesty the Queen. The accident is said to have occurred on May 11, 1989 as a result of unsafe carpeting on the stairs, which caused the plaintiff's fall and his injury. The principal injuries suffered by the plaintiff as a result of this fall are said to have been a concussion and amnesia.

     The defendants filed a Statement of Defence on February 7, 1990, denying allegations of the plaintiff about the alleged incident and they state that no prior notice of the incident was received until August, 1989, some three months after it is alleged to have occurred. The delay in providing notice is said to prejudice the defendants by precluding a reasonable opportunity to conduct a timely investigation of the alleged fall.

     Thereafter, examinations for discovery were conducted in mid-December, 1992. Undertakings then given on behalf of the defendants are said to have been fulfilled by responses provided in February, 1993. With no responses in relation to the plaintiff's undertakings by March ll, 1993, the solicitor for the defendants wrote asking that undertakings be met without delay and asking when the plaintiff's medical files might be examined.

     On July 13, 1993, the solicitor for the plaintiff wrote providing responses to some undertakings, noting that medical information concerning the plaintiff would be forthcoming and he expected to have the matter set down for trial soon.

     More than a year later, in September, 1994, the solicitor for the defendants again wrote to the plaintiff's solicitor about the failure of the plaintiff to satisfy undertakings he had given, particularly in regard to medical information concerning the plaintiff's condition. Further, counsel for the defendants advised that if there were no response from the plaintiff by October 7, 1994, the defendants would seek to have the action struck.

     Nothing was heard from or on behalf of the plaintiff for a further year and a half and the defendants say that their file was closed for they considered the matter to be dormant.

     About mid-March 1996, the plaintiff received a notice from the Associate Chief Justice of this Court advising that a review of the Court's records showed no activity in the proceedings since October 15, 1990, and directing the plaintiff, if it was intended to continue the proceedings, that a motion should be initiated for directions from the Court as to the procedure to be followed in pursuing the matter.

     On May 14, 1996, the plaintiff filed a motion for directions in respect to the letter from the Court, and with that motion he requested unilaterally that a day, time and place be fixed for hearing the action. The plaintiff requested the matter be dealt with pursuant to Rule 324 of the Court's Rules, without personal appearance.

     When served with the plaintiff's documents, counsel for the defendants wrote to remind the solicitor for the plaintiff that significant undertakings were still outstanding and he would object to having the matter set down for trial. That position was also set out in a letter to the Court Registry and the letter indicated as well that the defendants would move to strike the action. A further notice that such a motion would be brought was directed to counsel for the plaintiff on November 5, 1996. A motion to dismiss the plaintiff's action for want of prosecution was then filed and efforts by the Associate Chief Justice to provide directions by telephone conference call, in relation to possible trial, were suspended pending hearing of this motion, which came on before this Court in Fredericton on December 16, 1996.

     The test to be applied in considering a motion pursuant to Rule 440 was set out by my colleague, Mr. Justice Dubé in Nichols v. Canada (1990), 36 F.T.C. 77, a test approved by the Court of Appeal in Patex Snowmobiles v. Bomardier Ltd. (1993), 153 N.R. 235, 48 C.P.R. (3d) 555 (F.C.A.) The defendant must establish that there has been inordinate delay by the plaintiff, which is not excusable and which is likely to seriously prejudice the defendant. It is recognized that the Court is cautious in allowing a motion under the Rule for it deprives a plaintiff of substantive rights because of procedural failure. (Dyker v. Canada, (1993), 61 F.T.R. 291), particularly where there is evidence that the plaintiff intends to proceed to trial (Parfums Nina Ricci et al v. Modes Riczi International (1984), l C.P.R. (3d) 142 (F.C.T.D.); D & E Towing and Salvage Ltd. v. Ship Haida Carrier et al (1993), 70 F.T.R. 187).

     In this case, the delay is bordering on the inordinate, particularly in the sense that there appears to have been less than might be anticipated as common courtesy in communication on behalf of the plaintiff about his intentions in relation to the action. I say this because since discoveries in December, 1992, little has been done on the plaintiff's behalf to advance the action or to advise counsel for the defendants where matters stood from time to time. There was correspondence between counsel concerning anticipated responses on behalf of the plaintiff to undertakings given at discovery, a matter brought to the attention of counsel for the plaintiff on more than one occasion by counsel for the defendants, but there was no other communication since 1992.

     Now, four years after discoveries, when faced with a motion to dismiss the action, it is disputed by the plaintiff's affidavit and submissions on his behalf that there were undertakings about production of notes and records of a certain Dr. Rice. For the defendants that evidence was considered important because at discovery it seemed uncertain whether the plaintiff's claim included injuries to more than the plaintiff's head. Dr. Rice, whose name was raised at discovery of the plaintiff, was an orthopaedic surgeon, seen by the plaintiff in 1990 or 1991, for treatment of the plaintiff's shoulder, which it was suggested at discovery may have been required as a result of the plaintiff's fall on the Post Office steps. Only at this stage in proceedings, in December, 1996, by the plaintiff's affidavit filed in response to the defendants' motion, and in argument before me, is it clearly stated that the plaintiff's claim is not in relation to his shoulder problems, "as my main complaints [which were confirmed by counsel for the plaintiff at the hearing before me as the plaintiff's only complaints] as a result of the fall are memory loss, amnesia and disorientation and the upset that causes, not shoulder pain".

     Whether the delay is excusable depends in part on an assessment of the plaintiff's explanation that, following a neurophysiological examination, the report of which had been made available to counsel for the defendants, he had allowed himself "sometime to perhaps recover my memory". That examination, in January 1992, had concluded that "the client's recovery is likely to be protracted and there is a high probability that it will take another 2 to 3 years before he has a more satisfactory and complete recovery". After three years, during which the plaintiff avers that he met with his counsel regularly and that unfortunately he has not recovered his memory, he avers that he instructed counsel to proceed to trial, instructions which the plaintiff confirmed after receipt of the direction from the Associate Chief Justice.

     The plaintiff says by affidavit, in part:

34. As to the delay, which allowed me time to try and recover my memory, there was no objection to this delay on behalf of the Defendant (sic), in fact, it is only when I attempted, through my solicitor, to have this matter set down for trial that they objected.

There is, of course, no onus on the defendant, in an action for damages, to object to the plaintiff's delay. The defendant may, as Rule 440 provides and as these defendants now do, seek an order to dismiss an action for want of prosecution. Here my sense is that only at this stage, in response to the defendants' motion that the action be dismissed, is an explanation, related to the plaintiff's condition from the alleged fall and injury, offered for the delay. The plaintiff's excuse may be accepted, but the lack of explanation for it over three years or more is regrettable for through that time period it appears clear that there was little, if any, sign of intention on the part of the plaintiff to proceed. Indeed, the lack of communication from the plaintiff led the defendants to instruct counsel to close the file on the case.

     As for possible prejudice to the defendants if the action were now permitted to proceed despite the long delay, the defendants urge that after more than seven years since the alleged fall it will be impossible to ascertain or identify any potential witness, that the caretaker of the premises at the time who would be a key witness has left the defendants' service and the orthopaedic surgeon, Dr. Rice, has left the country. No doubt there will be difficulties for the defendants if the matter now proceeds, but I am not persuaded that delay has caused undue prejudice or prejudice that would unfairly hamper the defendants in defending in this case. The plaintiff avers that defendants' insurers or adjusters earlier conducted an investigation of the incident and that the plaintiff had been interviewed by the investigator in the course of his work. The investigator's report ought to be available to the defendants. Further, the plaintiff notes that there is no evidence that the former caretaker, said to be a key witness for the defence, is not available to testify, though he has retired. Finally, as earlier noted, the evidence of Dr. Rice is now admitted by the plaintiff to be irrelevant to his claim.

     I note that the plaintiff responded to the direction of the Associate Chief Justice, some two months after receipt of that direction, by applying unilaterally to have the matter set down for hearing. In the circumstances that was the first sign of intention to proceed in more than three years, but it was an indication of that intent, given before the defendant's motion now before the Court.

     While the delay was inordinate, particularly in the absence of any indication that the plaintiff would be proceeding, an excuse relating to the plaintiff's recovery from injury is now offered for that delay. I am not persuaded that the defendants would be so prejudiced, if the matter were to proceed, that it warrants dismissal under Rule 440.

     Nevertheless, the proceeding should now go forward without further delay on an expedited timetable if the parties do not settle the matter. At the hearing I indicated my own view that if the motion to dismiss the action were dismissed, the case is one that cries out for settlement between the parties. It seems to me the issues are narrowed as a result of this hearing and the plaintiff's claim is limited to head injury and consequences from that, said to have been caused by an alleged fall on premises occupied by the defendant Canada Post, and owned by the defendant, Her Majesty. Those damages, if liability be established, on grounds of negligence or occupier's liability, may have to take into account some evidence of the plaintiff's condition as a result of an alleged earlier head injury, said to have occurred before the accident alleged here as the basis of the plaintiff's claim.

     Counsel for the parties are directed to seek directions from the Associate Chief Justice to whose office this matter is referred to initiate arrangements for a telephone conference. The purpose of that conference is to provide directions for an expedited trial or for a settlement conference as may be appropriate.

     In the circumstances, I dismiss, by Order, the application by the defendants that the plaintiff's action be dismissed for want of prosecution. That Order provides that the defendants shall be entitled to their costs and reasonable disbursements of the motion in any event of the cause.

     I so order costs because to all appearances, except for the plaintiff's response to the direction of the Associate Chief Justice in the spring of 1996, there was no evidence of the plaintiff's serious intent to proceed, no complete response by the plaintiff to undertakings given more than three years earlier and no evident dispute about the undertakings alleged, until response to the defendants' motion that the action be dismissed. That response is made only when the defendants' application comes on for hearing. Finally, only at this stage and in the course of the hearing is it finally made clear that the plaintiff's claim is narrowed to damages for injury to his head and consequences thereof, said to be caused by the fall at the defendants' premises. Those factors persuade me that the defendants should have their costs of this motion, on the usual party and party basis in accord with column 3 of the Tariff established under Rule 344 of the Federal Court Rules.

     ____________________________

     JUDGE

OTTAWA, Ontario

March 7, 1997.