February 26, 2024 By: Taylor Moroz and Troy Baril
I. Introduction
In Canadian legal proceedings, plaintiffs must not only navigate the constraints imposed by limitation periods, they must also ensure their claim is moving forward or risk having it struck for want of prosecution. This article explores the complexities of plaintiffs’ obligations within the context of a stringent limitation period, emphasizing the principle of discoverability and a plaintiff’s obligations to move their matter forward or risk having their claim dismissed in its entirety.
Once a claim has been filed and a limitation period has been complied with, plaintiffs must stay vigilant of their obligation to continue to press forward their claim. Failure to move a claim forward may result in the claim being struck for want of prosecution. Enviro-gun Ltd v Rural Municipality of Sherwood No. 159, 2023 SKKB 224 (CanLII) [Enviro-gun] aids in illustrating the complexities and issues for plaintiffs pursuing a claim. This article delves into the chronology of events and legal considerations surrounding a plaintiff’s obligations in forwarding their case and the consequences of a failure to do so.
II. Limitations Periods: Pre-claim temporal considerations
In Canada, a limitations period refers to the time within which a plaintiff must initiate legal proceedings against a party or risk losing their claim. The responsibility to investigate claims and identify potential defendants’ rests squarely on the plaintiff.
The general limitation period in most provinces throughout Canada is 2 years (Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Ontario, and Saskatchewan) with a handful having a limitation period of 6 years (Northwest Territories, Nova Scotia, Nunavut, PEI, and the Yukon), and Quebec having a general limitation period of 3 years.
Courts typically apply these limitation periods strictly, with it operating as a drop-dead date. One important detail in assessing whether your claim has surpassed the pertinent limitations period is the principle of “discoverability.”
The discoverability principle, codified in Saskatchewan in the Limitations Act, SS 2004, c L-16.1, dictates that a cause of action arises when the material facts are discovered or ought to have been discovered with reasonable diligence. This principle recognizes that the plaintiff may not become aware of damages and/or the responsible party immediately after the loss occurs.
Discoverability, in essence, entails the commencement of a limitation period upon the revelation of material facts relevant to a cause of action, deviating from a rigid calculation solely tied to the occurrence of a loss. Leveraging discoverability as a legal argument holds the potential to rescue claims that might otherwise be deemed beyond the conventional timeframe of a limitation period, thereby modifying the start point for the period’s calculation.
Navigating limitation periods is a crucial consideration before initiating any legal claim. In Canada, a claim that remains discoverable beyond the specified limitation period is typically bound to be unsuccessful. Even once a potential plaintiff establishes that their claim aligns with the relevant limitation period, temporal considerations persist after filing a claim.
III. Want of Prosecution: Temporal considerations after initiating a claim.
The responsibility for advancing a case falls on the plaintiff. The Enviro-gun case serves as a perfect illustrative device as to the temporal considerations of a plaintiff advancing their claim.
Rule 4-44 of The King’s Bench Rules empowers the court to dismiss all or part of a claim if it is determined that the claim’s delay is inordinate, inexcusable, and not in the interests of justice. This rule was adapted into a three-part test in International Capital Corporation v Robinson Twigg & Ketilson, 2010 SKCA 48, 319 DLR (4th) 155 [ICC]. The three steps are: a) is the delay inordinate?; b) is the delay excusable?; and c) is it in the interests of justice for the claim to proceed?
A) Is the delay inordinate?
In Justice Tochor’s examination in the Enviro-Gun case, he emphasized that this first part of the test necessitates a comparison between the time taken to prosecute the ongoing action and the time such a case would typically require to reach the current stage of litigation.
The facts presented in the Enviro-Gun decision revealed the claim was initiated on September 3, 2010, and the only action taken by the plaintiff was filing a notice of intention to proceed on July 3, 2013. The date of Justice Tochor’s decision was October 26, 2023. Regardless of whether the delay was considered 9 years (since 2013) or 12 years (since 2010), Justice Tochor concluded that it was, unequivocally, inordinate.
Further clarity on what might constitute an inordinate delay was provided, with specific examples shedding light on the lower end of inordinate delay. For instance, in McLeod v Fyson, 2014 SKQB 87, a delay of three and a half years to complete questioning was deemed inordinate. Similarly, in McKee v Melfort (City), 2011 SKQB 462, a four-year delay was considered inordinate, and McDiarmid Lumber Ltd v Ochapowace First Nation, 2010 SKQB 402, found a five-year delay to be inordinate.
The relevant determination for considering if a delay is “inordinate” is by contemplating the time taken to prosecute the current action compared to the time it would ordinarily take to reach the same stage of the legal process. In some instances, inordinate delay may be defined as short as 3.5 years. Given this perspective, it is hardly surprising that a delay of either 9 or 12 years is highly likely to be characterized by the courts as inordinate.
B) Is the delay excusable?
In the Enviro-Gun case, Justice Tochor underscored that this step mandates a thorough evaluation of various factors, encompassing the nature of the action, the extent of the delay, and the reasons provided for the delay.
The plaintiff in Enviro-Gun justified the delay by asserting that no lawyer was willing to take on their case until their current lawyer was retained in November of 2022. Given the frailty of this explanation coupled with the significant duration of the delay, Justice Tochor deemed the delay to be inexcusable.
Further, ICC provides:
[44] The second step in the analysis, …, is an examination of the reasons for the delay aimed at determining whether it is excusable. This inquiry will entail consideration of the nature of the claim, the diligence with which the claim has been pressed by the plaintiff, and the specific reasons offered as to why the matter has not moved more quickly. A wide variety of factors might be expected to factor into this assessment.
When assessing the potential striking of a plaintiff’s claim for want of prosecution, it is imperative to scrutinize the inherent nature of the claim, the level of diligence exhibited in advancing the claim, and the specific reasons accounting for any delay in progression.
It is foreseeable that heightened diligence and proactive efforts to advance the matter are likely to receive a more favorable reception from the court. Additionally, presenting more compelling and sympathetic reasons for the delay may enhance the plaintiff’s prospects of establishing the delay as excusable.
C) Is it in the interests of justice for the claim to proceed?
A significant part of Justice Tochor’s ruling delved into the question of whether the interests of justice mandated the progression of the case. Justice Tochor articulated that this stage involved a “broader, more holistic examination of several factors.” To guide this determination, Justice Tochor embraced a non-exhaustive list of factors to weigh when assessing whether it was in the interests of justice for the claim to proceed. Those factors include, but are not limited to:
(a) The prejudice the defendant will suffer in mounting its case if the matter goes to trial…;
(b) The length of the inexcusable delay…;
(c) The stage of the litigation…;
(d) The impact of the inexcusable delay on the defendant…;
(e) The context in which the delay occurred…;
(f) The reasons offered for the delay…;
(g) The role of counsel in causing the delay…; and,
(h) The public interest…
In weighing and considering these factors, Justice Tochor stresses the importance of looking to the “on-the-ground realities of litigation” and the need to consider such to achieve a just result. What precisely is meant by the “on-the-ground realities of litigation” was not expanded on, but it did play an important role in Justice Tochor’s decision. Seemingly, from the Enviro-gun decision, these on-the-ground realities are akin to the background factual matrix in which the litigation is taking place.
Justice Tochor found that many factors weighed against allowing the claim to proceed. Justice Tochor found the RM would be prejudiced in that none of the staff or council members who dealt with the plaintiffs at the material time were still with the RM. The length of the delay was found to be inexcusable. The stage of the litigation was found to be early in relation to the length of the delay. It was also found that the plaintiff’s delay may be characterized as “radio silence.” This silence was found to be an important consideration in finding against the plaintiff’s position.
Justice Tochor concluded that the delay in the matter was inordinate and inexcusable and that it was not in the interests of justice for the claim to be allowed to continue. The action was dismissed.
IV. Key Takeaways from Enviro-gun
The Enviro-gun case helps highlight the importance of timely prosecution by plaintiffs and the potential consequences of a plaintiff dragging their feet in litigation. Inordinate and inexcusable delays may lead to the dismissal of a claim; this emphasizes the need for plaintiffs to act diligently in pressing forward their legal proceedings.
The courts will look to the on-the-ground realities or the factual matrix surrounding the litigation in question. This is used as a lens for viewing numerous factors in ultimately assessing if the case in question will live or die under Rule 4-44. These factors are non-exhaustive.
These factors, the lens through which a court will view a case, and the on-the-ground realities are all tools used by a court in exercising a balancing act, an act to determine if it is in the interests of justice to dismiss the claim in question. For plaintiffs, it is crucial that they do all they can to press forward their matter; a failure to do so could result in the dismissal of their claim.
V. Conclusion
Plaintiffs have a minefield to avoid, both prior to and after filing a claim. Before commencing a claim, the expiration of a limitation period has the capacity to end the viability of any claim before it is even started. Litigation is a long, onerous process that requires a great deal of time and effort to properly facilitate. If a plaintiff desires to take their matter to court, they should do so as early as possible to avoid their claim perishing through a lapsed limitation period.
After a claim has been filed and litigation has commenced, plaintiffs still have a duty to continue to press their matter toward a resolution. Inadvertence, neglect, or insufficient efforts all have the capacity to end a claim through Rule 4-44 in Saskatchewan and analogous rules throughout Canada. Plaintiffs must exercise continual diligence in their efforts to bring their claim to a resolution; a failure to do so could lead to an unsatisfactory and abrupt end to their claim and potentially a grave injustice.
Procido LLP distinguishes itself as a law firm renowned for its proficiency in skillfully and promptly assisting clients in resolving legal disputes. Our dedicated dispute resolution group at Procido LLP is well-equipped to address any inquiries related to limitation periods, plaintiffs’ responsibilities throughout litigation, or any other matters pertaining to dispute resolution. For further assistance, please feel free to reach out to us at 1.306.664.1444 or via email at admin@procido.com.
Disclaimer
This publication is provided as an information service and may include items reported from other sources. We do not warrant its accuracy. This information is not meant as legal opinion or advice. Contact Procido LLP (www.procido.com) if you require legal advice on the topics discussed in this article.