IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140310

Docket: S74076

Registry:
Kelowna

Between:

John Vernon Morice

Plaintiff

And

The
Toronto-Dominion Bank

Defendant

Before:
The Honourable Mr. Justice Rogers

Reasons for Judgment

Introduction

[1]            
Mr. Morice sued the Toronto-Dominion Bank for injuries he says he
sustained when he fell outside of one of the Bank’s branch offices. Much time
has passed since his writ was issued, yet little has been accomplished on the
file. The Bank now applies for an order that Mr. Morice’s action be dismissed
for want of prosecution.

[2]            
If Mr. Morice succeeds in his defence of the application to
dismiss, Mr. Morice next applies to add as a defendant the landlord of the
shopping mall where he says his accident happened. This application comes long
after expiry of the limitation period for his claim against the landlord.

The Facts

[3]            
Mr. Morice alleges that on January 6, 2005 he suffered a serious
back injury as a result of slipping and falling on ice in the parking lot
outside of a branch office of the T.D. Canada Trust. The office was located in
a shopping mall on land owned by the Westbank First Nation in what is now the
District of West Kelowna.

[4]            
Mr. Morice appears not to have reported his fall or his injury to
anyone at the T.D. Bank or to anyone having anything to do with the management
or maintenance of the mall’s parking lot and sidewalks.

[5]            
In or around September 2006, Mr. Morice retained the solicitor Mr. Levin
to represent him in a claim for damages caused by his injury. Mr. Morice
instructed Mr. Levin to advance his claim without delay. Mr. Morice
was an older unsophisticated gentleman with a grade 10 education. He knew
nothing of legal process. Throughout, Mr. Morice has relied on Mr. Levin
to properly prosecute his claim.

[6]            
On December 22, 2006, Mr. Levin filed a writ of summons and statement
of claim. Mr. Levin named only the T.D. Bank as defendant. Mr. Levin
made no investigation into the ownership of the shopping mall. Nor did Mr. Levin
investigate whether the T.D. Bank was responsible for maintenance of the
parking lot and sidewalk near its office.

[7]            
The T.D. Bank was served with the writ. On January 16, 2007, the T.D. Bank
filed a statement of defence. In its defence, the T.D. Bank asserted that it
was not an occupier of the portion of the mall where Mr. Morice alleges
that he fell. The T.D. Bank asserted in the alternative that if it was an
occupier, then it had put in place a reasonable regimen of inspection and
maintenance. Along with the statement of defence, the T.D. Bank delivered to Mr. Levin
a demand for discovery of Mr. Morice’s documents.

[8]            
As noted, the shopping mall was owned by the Westbank First Nation. In
April 2007, the T.D. Bank ’s lawyer advised Mr. Levin that the T.D. Bank was
a sub‑tenant in the mall, and suggested that the mall’s head lessor might
possibly be a proper party to the litigation. Along with that advice, the T.D.
Bank ’s lawyer sent an offer to lease between the Westbank First Nation and a
company known as Grid Communications Inc. At the same time, T.D. Bank ’s
counsel sought discovery dates from Mr. Levin.

[9]            
Despite receiving numerous reminders from the T.D. Bank ’s lawyer, Mr. Levin
did not voluntarily provide a list of Mr. Morice’s documents. A year after
the demand was first made, the T.D. Bank filed a notice of motion for an order
compelling Mr. Morice to give discovery of his documents. Finally, in
January 2008, Mr. Levin delivered a list of documents to the T.D. Bank ’s
lawyer.

[10]        
Roughly ten months after receiving notice that the mall premises were
subject to a head lease, Mr. Levin filed a motion for an order adding Grid
Communications Inc. as a defendant to the proceeding. The order was granted in
late March 2008, but the order was for naught. That is because Grid and the
Westbank First Nation had only discussed a head lease – they never got beyond
the offer to lease that the T.D. Bank had earlier sent to Mr. Levin.

[11]        
Immediately after Grid received notice that it had been added to the
proceeding, its lawyer advised Mr. Levin that Grid was not the head lessee
when the incident was alleged to have happened.

[12]        
After much prompting by the T.D. Bank, in March 2009, the parties
convened their examinations for discovery. In the course of those discoveries, Mr. Levin
learned that in January 2005, Starr Schein Enterprises Incorporated held the
head lease for the mall. Shortly after the discoveries, Mr. Levin prepared
a notice of motion seeking an order adding Starr Schein as a defendant to the
proceeding. Mr. Levin failed to bring that application before the court.

[13]        
In the course of the T.D. Bank ’s discovery of Mr. Morice, T.D.
Bank ’s counsel asked for several items of information and documents. These
included employment records and the names of potential witnesses. Over the next
year, T.D. Bank ’s counsel periodically reminded Mr. Levin of his
responsibility to provide Mr. Morice’s responses to those requests. Mr. Levin
did not respond to those reminders until after he had been served with the bank’s
motion for an order compelling a response.

[14]        
In January 2011, Mr. Levin provided his client’s second
supplemental list of documents. Nothing further happened on the file until May
2012 when Mr. Levin delivered a notice of intention to proceed to the
Bank.

[15]        
Mr. Levin has taken no further steps on this matter since June 2012.
Mr. Levin deposed that his failure to move the case forward was due to
inadvertence and to the press of other business.

[16]        
In August 2013, the bank filed its application for an order that Mr. Morice’s
action be dismissed for want of prosecution. New counsel, Mr. Ihas,
appeared for Mr. Morice on that application. Shortly after he was
retained, Mr. Ihas filed a motion for an order that Grid be removed and
that Starr Schein be added as a defendant in the proceeding.

[17]        
The parties have agreed that evidence in the first application may be
used in the second and vice versa.

[18]        
The evidence on these applications establishes that ahead of their being
served with legal process, neither the T.D. Bank nor Starr Schein ever received
written notice of Mr. Morice’s alleged slip and fall. Mr. Morice’s
counsel on the applications was aware that when and the degree to which the
parties involved knew of the alleged incident was a relevant factor. Mr. Morice’s
affidavit in support of his position makes no mention of his having alerted the
T.D. Bank or Starr Schein of his injury. I infer from his silence that Mr. Morice
did not, in fact, give notice of any kind to any potential defendant in this
proceeding ahead of delivering legal process to them.

[19]        
No person employed by the T.D. Bank can now give evidence about the
circumstances that led to Mr. Morice’s complaint.

[20]        
Starr Schein has innocently destroyed all of its records pertaining to
its management of the shopping mall. Those records included monthly reports
given to Starr Schein by the mall’s property manager. The manager’s duties
included, among other things, maintenance of the mall premises.

[21]        
Currently, Mr. Morice says that he is unable to work as a
consequence of his injuries, that he is now 64 years old, that he is on
welfare, that he is still unsophisticated, and that if his action is not
dismissed he intends to retain counsel and press on with his claim.

Application to Dismiss

[22]        
T.D. Bank has applied to dismiss Mr. Morice’s suit for want of
prosecution.

The Law

[23]        
Rule 22‑7(7) of the Supreme Court Civil Rules provides the
authority for dismissal of a proceeding for want of prosecution. Dismissal
under this provision is a discretionary order. The principles that inform the
exercise of that discretion were laid down in Irving v. Irving, [1982]
38 B.C.L.R. 318 (C.A.). Those principles have been affirmed from time to time.
More recently, in Murrin Construction Ltd. v. All-Span Engineering and
Construction Ltd., 2012 BCCA 251, the Court of Appeal confirmed that the
factors to consider on an application to dismiss for want of prosecution are:

(a)      the length of the delay and
whether it is inordinate;

(b)      the reasons for the inordinate delay
and if it is inexcusable;

(c)      whether the delay has caused or
is likely to cause serious prejudice to the applicant; and

(d)      whether the balance of justice
requires dismissal of the action.

[24]        
As a general proposition, if the delay is inordinate and inexcusable,
the court will presume that the delay has caused the defendant to suffer
prejudice. The plaintiff may rebut that presumption with evidence dispelling
the defendant’s prejudice.

[25]        
Even if the delay is inordinate and inexcusable and the defendant has
suffered prejudice, the court may nevertheless permit the proceeding to
continue if the balance of justice requires it.

Discussion

(a)      The length of the delay and whether it is inordinate

[26]        
Overall, the prosecution of this case has been, in a word, deplorable. Mr. Levin
has consistently failed to bring the file forward on a timely basis, and when
the file has been brought to his attention he has failed to act diligently in
his client’s interest. For example, as early as March 2009 Mr. Levin was
aware that Starr Schein was probably the proper defendant but, other than
preparing a motion to add Starr Schein as a defendant, Mr. Levin did
absolutely nothing with that knowledge. Further, in May 2011 Mr. Levin
filed a notice of intention to proceed but for the next two years he did
absolutely nothing to prosecute the claim. The file was taken out of his hands
in or around August 2013 and it was not until then that an application to add
Starr Schein was put forward.

[27]        
In my opinion, the delay in prosecuting Mr. Morice’s claim has been
inordinate.

(b)      The reasons for the inordinate delay and if it is inexcusable

[28]        
Mr. Levin has no meaningful excuse for his failure to properly
represent his client. Delay caused by Mr. Levin is, in my opinion,
inexcusable.

[29]        
Mr. Morice would have the court accept that because he has little
education and no experience with litigation, he was simply along for the ride
and that he should bear no responsibility for the inordinate delay. In support
of his position, Mr. Morice emphasises his trusting and naive nature. He
says that he called Mr. Levin’s office a number of times to inquire after
the progress of his action. He says that he accepted advice that his case was
proceeding normally.

[30]        
The difficulty with Mr. Morice’s position is that he also deposes
that he was anxious for his claim to proceed. No reasonable person would
unquestioningly accept a delay of a relatively simple action measured in this
many years. In my view, Mr. Morice’s responsibility as a litigant included
a responsibility to maintain some degree of control over the process. There was
no evidence that Mr. Morice was legally incompetent or unable to instruct Mr. Levin.
Given the length of time that his case stagnated in Mr. Levin’s hands, it
had to have occurred to Mr. Morice that Mr. Levin was mishandling the
file.

[31]        
In my view, there comes a point when a client must take action – either
by giving clear and unequivocal instructions to his lawyer or by taking the
file to another solicitor – in order to protect his interests. In the present
case I find that the delay passed that threshold and I find that Mr. Morice
failed to act reasonably in the face of that delay.

(c)      Whether the delay has
caused or is likely to cause serious prejudice to the applicant

[32]        
Mr. Ihas argues for Mr. Morice that there is no prejudice to
the T.D. Bank in the fact that none of its employees have any current
recollection of the incident or in the fact that the T.D. Bank has no records
in which Mr. Morice’s alleged accident is mentioned. Mr. Ihas says
that if no such records or recollections exist now then they probably did not
exist in January 2005 either and so the delay in prosecuting the action has not
put the T.D. Bank in any worse position than it would have been had the case
been moved forward expeditiously.

[33]        
That may be so, but the difficulty is that Mr. Morice’s claim
arises out of an alleged slip and fall in a parking lot or on a sidewalk at a
shopping mall and that in its defence, the T.D. Bank says that there was in
place a routine of reasonable inspection and maintenance. In order to make out
that defence, the T.D. Bank would benefit from access to its landlord’s
maintenance records. Those records have been destroyed.

[34]        
The alleged incident is said to have happened nine years ago – it is
more likely than not that even if the maintenance personnel can be found they
will not be able to recall what they did or did not do at the site in and
around the time of the alleged incident. The now destroyed records were
probably the only reliable evidence upon which the T.D. Bank could have
depended on in its defence of the claim. Absent those records, I find that the
T.D. Bank is basically powerless to advance a theory of defence that would
otherwise have been available to it.

[35]        
For that reason, I find that Mr. Morice’s delay in prosecuting his
claim has caused the T.D. Bank to suffer actual and significant prejudice.
Further, the prejudice cannot be remediated: the destroyed documents are gone
forever.

(d)      Whether the balance of justice requires dismissal of the action

[36]        
Mr. Morice asserts that because of injuries he sustained in his
alleged slip and fall he is now financially destitute. He maintains that he
should be permitted to continue his action because it is the only avenue open
to him to obtain relief and recompense for his injuries.

[37]        
In answer to that assertion, I say that I am not convinced that the T.D.
Bank is the only target at which Mr. Morice might aim a claim for damages.

[38]        
In any event, I find that it would be contrary to the principles of
justice to allow Mr. Morice to proceed on this claim in the face of delay
that has led to the loss of evidence that was vital to the issue of liability.

Conclusion

[39]        
I have come to the conclusion that Mr. Morice’s claim must be dismissed
for want of prosecution.

Application to Add Party

[40]        
In the event that my decision to dismiss Mr. Morice’s claim for
want of prosecution is wrong, I will turn now to Mr. Morice’s application
to add Starr Schein Enterprises Incorporated as a defendant.

The Facts

[41]        
It was at the discoveries in March 2009 that Mr. Levin became aware
that Starr Schein was the landlord of the shopping mall where Mr. Morice
says he fell. In 2009 Mr. Levin prepared an application to add Starr
Schein as a defendant, but he did nothing with that application. It was not
until October 2013 that the application was actually filed and brought to Starr
Schein’s attention.

[42]        
Mr. Levin offered no excuse other than inadvertence and the press
of business for his failure to move the case forward.

[43]        
As noted earlier, before it had notice of its jeopardy, Starr Schein’s
principal destroyed all of its records relating to its management of the
shopping mall. Those records included reports from its maintenance manager.

The Law

[44]        
Rule 6‑2(7) of the Supreme Court Civil Rules provides as
follows:

At any stage of a proceeding, the court, on application by
any person, may, subject to subrules (9) and (10),

(a) order that a person cease to be
party if that person is not, or has ceased to be, a proper or necessary party,

(c) order that a person be added as
a party if there may exist, between the person and any party to the proceeding,
a question or issue relating to or connected with

(i)         any relief claimed in
the proceeding, or

(ii)        the subject matter of
the proceeding

that, in the opinion of the court, it would be just and
convenient to determine as between the person and that party.

[45]        
The limitation period for Mr. Morice’s claim against Starr Schein
was two years. That period has long since expired.

[46]        
Section 22 of the Limitation Act, S.B.C. 2012, c. 13
provides as follows:

22 (1) If a court proceeding has been commenced in relation
to a claim within the basic limitation period and ultimate limitation period
applicable to the claim and there is another claim (the “related claim”)
relating to or connected with the first mentioned claim, the following may, in
the court proceeding, be done with respect to the related claim even though a
limitation period applicable to either or both of the claims has expired:

(a) proceedings by counterclaim may
be brought, including the addition of a new party as a defendant by
counterclaim;

(b) third party proceedings may be
brought;

(c) claims by way of set off may be
advanced;

(d) new parties may be added or
substituted as plaintiffs or defendants.

(2) Nothing in subsection (1) gives a person a right to
commence a court proceeding under subsection (1) (a) or (b) in relation to a
claim for contribution or indemnity after the expiry of a limitation period
applicable to that claim.

(3) Subsection (1) does not enable a person to make a claim
against another person if a claim by the other person

(a) against the first mentioned
person, and 

(b) relating to or connected with
the subject matter of the proceeding,

is or will be defeated by the first mentioned person pleading
a provision of this Act as a defence.

(4)        Subsection (1) does not interfere with any
judicial discretion to refuse relief on grounds unrelated to the expiry of a
limitation period.

(5)        In any court
proceeding, the court may, on terms as to costs or otherwise that the court
considers just, allow the amendment of a pleading to raise a new claim even
though, at the time of the amendment, a court proceeding could not, under
section 6, 7 or 21, be commenced with respect to that claim.

[47]        
The leading case concerning the addition of a defendant after the expiry
of the limitation period is Teal Cedar Products (1977) Ltd. v. Dale
Intermediaries Ltd., [1996] 71 B.C.A.C. 161. As set out in Teal Cedar,
the factors for the court to consider are:

a)     the length
of the delay;

b)     the reasons
for the delay;

c)      any
explanation put forward to explain the delay;

d)     the degree
of prejudice caused by the delay; and

e)     the extent
of the connection, if any, between the existing claims and the proposed cause
of action.

[48]        
In addition to these factors, the Court in Teal Cedar said that
the overriding consideration is what is just and convenient in the
circumstances: Teal Cedar at paragraph 74.

[49]        
As for the reasons and explanation for the delay, the courts of this
Province have tended towards leniency for parties whose lawyers have let them
down. Where the delay has not caused fatal prejudice, the court has been
inclined to not visit the sins of the lawyer on the client.

Discussion

[50]        
In the present case, were it not for the destruction of the maintenance
records, I would have been persuaded to allow Mr. Morice’s application to
add Starr Schein as a defendant. That is to say, even though the delay was long
and Mr. Levin and Mr. Morice were both responsible for the delay, the
fact that Starr Schein was and has always been the proper target of Mr. Morice’s
claim would have tipped the balance of justice and convenience in favour of
adding it to the action.

[51]        
However, the loss of the maintenance records has caused significant
prejudice to Starr Schein’s ability to advance what is likely to be the only
viable defence it might have to the claim. Mr. Morice has adduced no
evidence to show that Starr Schein could somehow retrieve the lost information
from some other source. On the record of the application before me, I find that
Starr Schein’s prejudice goes directly and profoundly to its ability to
participate in the proceeding. I find that the prejudice is irremediable.

[52]        
In my view, the prejudice that Starr Schein has suffered as a
consequence of Mr. Morice’s delay outweighs Mr. Morice’s interest in prosecuting
a claim against it.

Conclusion

[53]        
The application to add Starr Schein as a defendant in the proceeding
must be dismissed.

Costs

[54]        
The parties may make applications for costs. Absent an application
within 30 days of the release of these reasons, the T.D. Bank and Starr Schein
will be entitled to their costs against Mr. Morice on Scale B.

“P.J. Rogers J.”
The Honourable Mr. Justice Rogers