IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Scurfield v. Air Canada,

 

2017 BCSC 1437

Date: 20170816

Docket: 44006

Registry: Kamloops

Between:

Sergei Scurfield

Plaintiff

And

Air Canada, Attorney General of Canada,
Her Majesty the Queen in Right of the Province of British Columbia,
Minister of Public Safety and Solicitor General
for British Columbia, Jazz Air LP, Kamloops Airport Ltd. and ABC Security Inc.

Defendants

Before: The Honourable Madam Justice Hyslop

Reasons for Judgment

Sergei Scurfield appeared on his own behalf (via telephone):

 

Counsel for the Defendants, Air Canada and Jazz Air LP:

M. Dery

Counsel for the Defendants, Attorney General of Canada

D. Stam

Counsel for the Defendant, Kamloops Airport Ltd.

W.S. Taylor

Place and Date of the Hearing:

Kamloops, B.C.

July 31, 2017

Place and Date of Judgment:

Kamloops, B.C.

August 16, 2017


 

INTRODUCTION

[1]             On July 31, 2017, I dismissed the plaintiff, Sergei Scurfield’s, action for want of prosecution pursuant to Rule 22-7(7) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Civil Rules]. I advised counsel and Mr. Scurfield that I would give reasons and these are my reasons.

[2]             Air Canada and Jazz Air LP (“Air Canada and Jazz”), the Attorney General of Canada (“Attorney General”) and Kamloops Airport Ltd. (the “Airport”) each brought a separate application to dismiss the plaintiff’s action.

[3]             The defendant, ABC Security Inc., has yet to be identified. It is the company who provided security to the Airport.

[4]             The Province of British Columbia did not appear at this hearing.

[5]             In dismissing Mr. Scurfield’s action, I awarded separate costs and disbursements to Air Canada and Jazz, the Attorney General and the Airport. Those costs awarded were not only for the application dismissing the plaintiff’s action, but also for the entire action.

[6]             In these reasons, I will repeat and adopt the legal argument contained in Air Canada and Jazz’s application. Both the Attorney General and the Airport relied generally on the facts and legal arguments set out in Air Canada and Jazz’s application. Neither Mr. Scurfield nor his counsel, James Murphy, both of Calgary, Alberta, filed any material in opposition to these applications.

Adjournment

[7]             Mr. Scurfield sought an adjournment of these applications. It occurred in this way. Just before the application was to be heard, a Kamloops lawyer appeared before me and asked whether Mr. Scurfield could speak to the Court by telephone. My first reaction was not to permit this. When I learned it was for an adjournment, I permitted it. The Kamloops lawyer then excused himself and participated no further. The adjournment application by Mr. Scurfield was not based on any written material. It was opposed by the defendants.

[8]             Mr. Scurfield sought to adjourn these applications as he claimed that he was not aware of these applications dismissing his action. He told the court that he dismissed Mr. Murphy on Friday afternoon (July 28, 2017) and he was seeking new counsel.

[9]             I exercised my discretion and refused the adjournment. Mr. Scurfield stayed on the telephone line and listened to the proceedings. I told him he could not refer to any evidence that he might wish to give, but could make submissions after the application was heard, which he did and they were brief.

[10]         Mr. Murphy, counsel for Mr. Scurfield, was served with Air Canada and Jazz’s application and accompanying Affidavit on June 12, 2017. On the same date, Mr. Murphy acknowledged receipt of the application and the materials.

[11]         On July 26, 2017, Mr. Murphy, by email addressed to all three defendants, sought an adjournment, which stated:

I’m seeking a couple week adjournment of this application. I ask that each of you consent to that adjournment. As an officer of the Court, I believe that Sergei Scurfield has evidence that if put before the Court may offer a sufficient reason explaining the delay. However, I have not been able to get instructions from Sergei regarding this application or the information needed to complete the affidavit which would put his explanation before the Court.

Please let me know if you will agree to a brief adjournment to give me more time to get instructions and information from Sergei.

If you do not consent, I anticipate attending Court in Kamloops on Monday to seek this adjournment from the Court.

[12]         After June 12 and up to July 26, 2017, there was no communication to or from Mr. Murphy. Mr. Murphy did not appear before the Court, nor did he prepare material for this hearing. According to Mr. Scurfield, Mr. Murphy was discharged as his lawyer on the Friday before the hearing of this application. At the time of hearing these applications, no Notice of Appointment or Change of Lawyer, Notice of Intention to Act in Person or Notice to Withdrawal as Lawyer were filed pursuant to Rule 22-6 of the Civil Rules. Forty-three days passed from time Mr. Murphy was served with these applications to the sending of his email on July 26, 2017.

[13]         The defendants have repeatedly advised Mr. Scurfield, through his counsel, that they would pursue an application for dismissal of his action for want of prosecution if he did not proceed with his litigation.

[14]         I concluded that Mr. Scurfield likely avoided giving his counsel instructions. The solution in obtaining an adjournment by Mr. Scurfield was to discharge his counsel at the last minute.

[15]         I made inquiries of all counsel who travelled to Kamloops, two from Vancouver and one from Edmonton, as to their costs in attending. Their response was several thousands of dollars. Mr. Scurfield did not pick up on this and offer to pay these costs.

FINDINGS OF FACT

[16]         I accept the findings of fact found in Air Canada and Jazz’s application under the heading of “FACTUAL BASIS”. I will add additional facts at the various paragraph numbers, which are set out in parenthesis and at the end of “FACTUAL BASIS”:

1.         The Plaintiff is a lawyer practicing in Alberta. He alleges that on March 5, 2008, the crew of Jazz Air Flight AC 8429 (travelling from Calgary, Alberta to Kamloops, British Columbia), arbitrarily detained and falsely imprisoned him. He claims that the crew erroneously determined that he had vandalized the plane’s washroom by urinating all over it and that airline security personnel assaulted him in attempting to prevent him from leaving the aircraft.

2.         The Plaintiff also claims that airline personnel made statements to the police that they knew or ought to have known were untrue, which he says led to his further detention and arrest.

3.         The Plaintiff further alleges that the RCMP officers who attended at the aircraft falsely arrested him, physically injured him when they applied handcuffs, and falsely imprisoned him in the “drunk tank” for seven hours without access to his lawyer of choice. He alleges that in doing so, the police breached his Charter rights and several provisions of the Criminal Code.

4.         The relief sought by the Plaintiff includes punitive damages.

[The damages sought by Mr. Scurfield are jointly and severely against the defendants which includes general damages, special damages and interest as well as costs. In the Amended Notice of Civil Claim, Mr. Scurfield’s losses are described as:

(a)        pain and suffering;

(b)        legal fees and expenses;

(c)        out-of-pocket accommodation and transportation expenses;

(d)        loss of enjoyment of vacation; and

(e)        loss of business opportunities.

Mr. Scurfield describes in his Amended Notice of Civil Claim:

3.         The conduct of each of the Defendants, as particularized above, also demonstrates bad faith, and reckless and highhanded conduct, for which Scurfield claims punitive damages.]

5.         On March 4, 2010, one day before the expiry of the limitation period, the Plaintiff filed a Writ of Summons and Statement of Claim.

6.         On April 20, 2010, the Applicants filed their Statement of Defence.

7.         On May 6, 2010, the defendant Kamloops Airport Ltd. (the “Airport”) filed its Statement of Defence.

[The Attorney General has not been called upon to file its Response to Civil Claim.]

8.         On February 10, 2011, the Plaintiff filed a Notice of Application seeking to substitute the defendants Attorney General of Canada, Her Majesty the Queen in Right in the Province of British Columbia, and the Minister of Public Safety and Solicitor General for British Columbia in place of the Royal Canadian Mounted Police (“RCMP”), which had been erroneously named in the original claim. On February 28, 2011, the Plaintiff obtained an order to file an Amended Notice of Civil Claim with the proper defendants, and the amended pleading was filed on March 7, 2011.

[It was counsel for the Attorney General who drew it to Mr. Murphy’s attention that the RCMP were not an entity. The Attorney General took no position when Mr. Scurfield made the application to amend.]

9.         On February 15, 2011, the Plaintiff served his List of Documents.

10.       On February 16, 2011, the Airport served its List of Documents.

11.       On February 18, 2011, counsel for the Applicants, Michael Dery, sent a letter to counsel for the Plaintiff, James Murphy, requesting copies of the documents in Part 1 of his List of Documents.

12.       Having received no response, Mr. Dery sent a letter to Mr. Murphy on March 14, 2011, following up on his request.

13.       Mr. Dery sent further letters to Mr. Murphy on July 4, 2011 and July 27, 2011 requesting his client’s documents.

14.       On August 5, 2011, Mr. Murphy sent a letter to Mr. Dery and to counsel for the Airport, Sean Taylor, attaching the documents from the Plaintiff’s List of Documents. He indicated that he would be proposing examination for discovery dates “in the near future in September or October”.

15.       On June 26, 2012, Mr. Taylor wrote to Mr. Murphy. Mr. Taylor noted that he had heard nothing since August 2011 when Mr. Murphy had indicated he would be imminently proposing dates for examination for discoveries. He also noted that Mr. Murphy had failed to respond to a demand for particulars made on April 27, 2010, and that very little had been done on the file since the action was filed. He said:

The delay in the prosecution of this action to date is undue and places in jeopardy a fair trial on the merits. If your client wishes to proceed with this action, please have him take immediate steps to do so without further delay.

16.       Mr. Murphy did not propose dates for examinations for discovery. To date, no Examinations for Discovery have been conducted in this proceeding.

17.       On March 4, 2014, Mr. Dery received a letter from Mr. Taylor asking whether he had heard anything from Mr. Murphy in the previous year. Mr. Dery responded that he had not.

18.       On March 2, 2017, Mr. Dery wrote a letter to Mr. Murphy on behalf of all of the Defendants making an offer to settle the action. The letter stated in part:

We reserve the right to bring this letter to the attention of the Court regarding the issue of costs should the Plaintiff decline the offer and oppose an application for want of prosecution.

19.       The offer was open for acceptance until March 17, 2017. However, Mr. Murphy advised that he had not received the letter, and it was re-sent on March 21, 2017. Mr. Murphy requested an extension until April 7, 2017 to respond to the offer, as he was going to be on vacation.

20.       The Defendants agreed to an extension until April 7, 2017. However, Mr. Dery advised Mr. Murphy that there would be no further extensions and that they would proceed with the application if the proposal were not accepted by the deadline.

21.       On April 7, 2017, Mr. Murphy sent an email to Mr. Dery, Mr. Taylor, and Mr. Stam advising that “Mr. Scurfield has not instructed me to accept the Defendants’ proposal”.

22.       The Kamloops Registry has advised that the earliest available dates for a 10-day trial are in January 2018. If this matter were to proceed, it is counsel’s view that the parties would likely not be ready for trial until middle to late 2018.

This is the end of the facts in Air Canada and Jazz’s application.

[23.      Counsel for the Attorney General took an unusual step. Between August 13, 2014 and June 13, 2016 counsel for the Attorney General made numerous calls to Mr. Murphy requesting some indication of Mr. Murphy’s ongoing instructions from the plaintiff. Mr. Murphy told the Attorney General’s lawyer that he had lost contact with the plaintiff. As a result, the lawyer for the Attorney General sent an email to Mr. Murphy which stated:

Spoke to “Courtney”, in Calgary (I did not catch her last name), General Counsel for Sunshine Village

She has been passed on the request I made to Ralph Scurfield through his Admin assistant to have Sergei contact you

I explained the situation…that we simply want Sergei to contact you to provide you with final confirmation of instructions to discontinue this lawsuit

She said she would follow up and let me know when she had contacted Sergei

Hopefully he will call you so that we can end this matter

Ralph Scurfield is the plaintiff’s uncle.

I took a chance following my discussion this morning with counsel for Air Canada in Vcr. I called your client. As I indicated in my phone call to you, I simply told him to reach you. I told him to call you.

I now hope that he does. All of the co-defendants want to get this matter concluded and close our files

Please try to reach him if he doesn’t reach you, and thanks ever so much.

On October 26, 2016, the Attorney General’s counsel emailed the following:

Thanks for talking to me about this file…

I understand you will soon be clarifying your instructions with your client, and those may likely involve the discontinuance of the action against the RCMP (one of the named defendants)

I look forward to hearing from you in a week. I would really like to get this long outstanding matter concluded.

[24.      Counsel for the Airport made a demand for particulars on April 27, 2010. Despite nine follow-up letters to counsel for the plaintiff in 2010 and 2011, no response was ever received.]

[25.      Counsel for the Airport initially requested the plaintiff’s List of Documents on May 7, 2010. The list was not received until February 15, 2011, some nine months later.]

[26.      On June 26, 2012, counsel for the Airport wrote to plaintiff’s counsel and stated:

We have heard nothing from you since we received your letter dated August 5, 2011 stating in part that you were to be proposing discovery dates “in the near future in September or October.”

In reviewing this file I also note that, despite many follow-up letters, I have not received even the courtesy of a response to my letter of April 27, 2010 requesting particulars. A copy of that letter is enclosed. Please provide the requested particulars at your earliest opportunity.

It is now over four years since the date of this alleged incident and very little has been done since this action was filed on March 4, 2010, one day before the expiration of the limitation period.]

[27.      Counsel for the Airport did not receive a response to the June 26, 2012 letter.]

[28.      Subsequent to June 26, 2012, the plaintiff took no steps in this action until filing a notice of intention to proceed on May 26, 2017.]

[17]         Mr. Scurfield made a brief submission. He advised the Court that he did not have his file. He made this submission. He submitted that Air Canada and Jazz had overreached when they said that he alleged in his pleadings that the crew were lying. Secondly, he pointed out he had taken a step when Mr. Murphy filed a Notice of Intention to Proceed.

[18]         Air Canada and Jazz in their applications set out the legal test for bringing an application for want of prosecution which I repeat verbatim. I accept that this is the law upon which the facts of this case should be judged:

24.       Rule 22-7(7) provides the court with discretion to order that a proceeding be dismissed if it appears to the court that there is a want of prosecution.

25.       The law relating to dismissal for want of prosecution is well-settled. The test was formulated in Irving v. Irving (1982), 38 B.C.L.R. 318 (C.A.), and has been affirmed by the Court of Appeal in subsequent cases including PMC Builders & Developers Ltd. v. Country West Construction Ltd., 2009 BCCA 535.

26.       As outlined in PMC Builders, to dismiss a claim for want of prosecution, the court must consider the following:

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

(b)        the reasons for the delay and whether the delay is excusable;

(c)        whether the delay has caused serious prejudice to the defendant in presenting a defence and, if there is such prejudice, whether it creates a substantial risk that a fair trial is not possible at the earliest date by which the action could be readied for trial and after its reactivation by the plaintiff; and

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

27.       The fourth factor encompasses the other three and is the most important and decisive: PMC Builders at para. 28.

There has been inordinate delay in this case

28.       Once litigation is commenced, it must be prosecuted with due diligence: Charles v. McQuarrie Hunter, [1993] B.C.W.L.D. 1606 (S.C.).

29.       Delay in prosecuting an action is to be considered from the time the action is commenced, and not piecemeal. The question is whether the overall delay is inordinate: Ed Bulley Ventures Ltd. v. The Pantry Hospitality Corporation, 2014 BCCA 52 [Ed Bulley CA] at para. 38.

30.       Length of delay may itself be sufficient evidence of inordinate delay if issues depend on the recollection of witnesses and events which happened long ago: Ed Bulley Ventures Ltd. v. The Pantry Hospitality Corporation, 2013 BCSC 991 [Ed Bulley SC] at para. 39.

31.       In the context of Rule 22-7, a “step” means a formal step required or permitted by the  Rules, not the exchange of correspondence: Ed Bulley CA; Canadian National Railway Company v. Chiu, 2014 BCSC 75 at para. 7.

32.       The lengthy delay in the prosecution of this action is solely attributable to the Plaintiff.  The action was commenced over seven years ago, and the only steps taken by the Plaintiff other than the filing of the claim itself are the amendment of his claim to remedy an incorrectly-named defendant and service of a List of Documents. No steps have been taken since the filing of the Amended Notice of Civil Claim more than six years ago. This is clearly inordinate delay.

No credible excuse has been offered for the delay

33.       The operative question at this step is “whether the delay is excusable in light of the reasons for it and other circumstances”: Irving at para. 11. A delay is inexcusable unless and until a credible reason for the delay is provided: Irving; Williamson v. Toyota Canada Inc., 2002 BCSC 421 at paras. 42 and 54.

34.       The court may consider the combined effect of the delay before and after the commencement of the action to determine if the delay is excusable (and if there is prejudice to the defendant): Tundra Helicopters Ltd. v. Allison Gas Turbine, 2000 BCSC 1414 at para. 16.

35.       A defendant has no obligation to move the plaintiff’s case forward: Haight-Smith v. Morelli Chertkow et al, 2002 BCSC 1893 at para. 9; Vic Van Isle Construction Ltd. v. Lomenda, 1999 CanLII 3661 (B.C.S.C.) at para. 24.

36.       In this case, the Plaintiff waited until almost the last possible day before expiry of the limitation period to file his claim. The combined effect of the delay before and after commencement of the action is that it has now been over nine years since the Incident.

37.       The only apparent reason for the delay is the inability of the plaintiff’s lawyer to obtain instructions from his client. The Applicants submit that this cannot possibility be considered a credible excuse (particularly where the client is a lawyer himself). The delay is therefore inexcusable.

The inordinate delay has caused prejudice

38.       Where the delay is inordinate and inexcusable, a rebuttable presumption of prejudice arises: Busse v. Robinson Morelli Chertkow, 1999 BCCA 313 at para. 18. The court must dismiss the action unless the Plaintiff establishes on a balance of probabilities that the defendant has not suffered prejudice, or that other circumstances would make it unjust to terminate the action: Busse at para. 27.

39.       The court can infer that sufficient passage of time will likely affect the abilities of witnesses to independently recollect events, which will prejudice the ability of the defendant to challenge or amplify the witnesses’ evidence: Williamson at para. 60. In Lost Lake Properties Ltd. v. Nanaimo (Regional District), 216 BCCA 487, in which the application for want of prosecution was brought approximately 11 years after the incident giving rise to the action, the Court of Appeal noted:

[20]…[I]t seems to me one or both parties will wish to call viva voce evidence, as to which there is likely to be loss of memory caused by the passage of time. This, by definition, is prejudice.

40.       A just determination can only be attained if an action is tried while the facts are still within the recollection of the witnesses. The passing of time may be so great that it is very likely that the evidence will have deteriorated to the point where it can be of little assistance to the court: Lindholm v. Pollen, 1986 CanLII 1056 (B.C.S.C.) at paras. 16 and 17.

41.       The evidence as to what occurred in this case will be derived from the testimony of witnesses, not the contents of documents. Even to the extent the Applicants are able to find the individuals who have relevant evidence regarding the Incident, they will be relying on their recollections of an event that, by the time of trial (assuming this takes place in 2018), will have taken place 10 years earlier. Importantly, evidence has not been preserved through examination for discoveries, as these have not taken place.

42.       Further, the longer the passage of time, the greater the relative disadvantage to the Applicants. The Applicants' employees frequently deal with unruly passengers and other serious incidents, and, as a result, the Incident is more likely to be memorable for the Plaintiff as compared to the recollections of the witnesses who would be called by the Applicants.

43.       The nature of the allegations is also relevant to the consideration of the degree of prejudice that the defendant is considered to suffer by delay. In actions involving serious allegations reflecting on a defendant’s character, it is even more important that reliable evidence be conveyed to the court, and the plaintiff has a particular onus to proceed with appropriate expediency and diligence in these cases: Lindholm at para. 17; Vic Van Isle Construction at para. 19; Extra Gift Exchange v. Accurate Effective Bailiffs, 2015 BCSC 915 at para. 42.

44.       The presumption of prejudice will be afforded “much more" weight in a case where the allegations are serious: Matheny v. British Columbia Transit Corp., 1997 CanLII 4184 (B.C.S.C.) at para. 41; Sampson v. Scaletta, Vancouver Registry no. S107065, 11 November 2016 at paras. 42-43. In Vic Van Isle Construction, the court stated that in a case where the limitation period has expired and the allegations are serious (in that case, fraud), the presumption “will not be easily displaced” (at para. 27).

45.       The allegations against the Defendants are serious. Among other things, all of the Defendants are accused of assault and false imprisonment. The Applicants are also accused of knowingly or recklessly making untrue statements to police, and the RCMP are accused of false arrest. These allegations clearly impugn the character of the Defendants.

46.       For these reasons, the Applicants say that they will suffer prejudice if the action is permitted to proceed.

Justice requires dismissal of the Actions

47.       In Williamson, the court held at para. 50 that its discretion on this point should be exercised with reference to two overriding principles:

(a)        An action should be brought to trial with reasonable diligence and expedition in the interest of justice; and

(b)        The longer the delay, especially where the resolution of disputed facts and issues will depend on the recollection of witnesses as to what was said and done, the less likely a fair trial of the issues is possible and that, therefore, justice will be done.

48.       Upon consideration of the overarching principle that justice be done, the court should not only consider the delay after the action was commenced, but the overall delay: Tundra at para. 16.

49.       Given the serious allegations made by the Plaintiff, there is a heightened duty on the Plaintiff to have prosecuted his claim with diligence and expediency, particularly given that he is a practicing lawyer. To the contrary, he has taken virtually no steps whatsoever (the last of which was over six years ago) to advance the action.

50.       As discussed above, viva voce evidence will be critical to the outcome of this action. Consequently, the passage of such an extraordinary amount of time and the resultant fading memories of witnesses will make it impossible to have a just determination. Given the Plaintiff’s serious allegations of assault, false statements and false imprisonment, this is particularly prejudicial to the Applicants and harmful to the administration of justice.

51.       It is not realistic that a trial could occur on the earliest available date. Even if the Plaintiff proceeded with diligence from this point forward and the matter was ready for trial in mid- to late 2018, this would still be more than 10 years after the Incident.

52.       The Applicants submit that a fair trial is no longer possible and that the balance of justice in this case favours a dismissal of the action.

DISCUSSION

[19]         At the time of hearing this application, I asked counsel for the defendants that if a trial were to proceed, how many witnesses would each of them be calling. Air Canada and Jazz stated that they would be calling the airplane crew which would be four; the Attorney General stated that they would be calling three or four RCMP officers, plus witnesses who would give evidence as to policies and procedures of the RCMP. Airport stated that it would call witnesses from ABC Security Inc. with whom it contracted security services. Given the defendants’ estimate of the number of witnesses, there would be at least a dozen witnesses whose memories are now nine years old. As no examination for discovery has taken place, none of the evidence was captured under oath. I accept that there has been an inordinate delay. There are no reasons put forward for the delay so as to assess as to whether it is excusable. As stated above, the memories of the witnesses will be old at the time of trial, which at best, would be mid-July of 2018, when the witnesses’ evidence is ten years old from the time of the event complained of by Mr. Scurfield. This creates a prejudice in itself.

[20]         This is not a case where documents will provide a lot of the evidence for the court. Rather, it is the evidence and memory of the personnel of the defendants which will assist the Court in findings of fact.

[21]         Mr. Scurfield alleges in his Notice of Civil Claim serious behaviour against the personnel of the defendants’. An example of this is contained in the Amended Notice of Civil Claim at paragraph 26:

(f)         making negligent statements and representations to the RCMP, which the Air Canada crew and Security Personnel knew, or ought to have known, were not true.

These allegations allege that Air Canada personnel and the Airport security were intentionally untruthful.

[22]         I conclude that there has been a lengthy delay, it is inordinate and no excuse has been offered and the delay has caused prejudice, creating a substantial risk that a fair trial is not possible.

[23]         As argued by the defendants, the fourth factor is the most important:

28.       I consider the fourth question to encompass the other three and to be the most important and decisive question.

PMC Builders & Developers Ltd. v. Country West Construction Ltd., 2009 BCCA 535.

[24]         Earlier at para. 25 of PMC Builders, the Appeal Court stated:

[25]      In Irving, the court adopted the principles governing an application for dismissal for want of prosecution - delay and prejudice - as discussed in the Allen case in the passage I have already set out. At p. 328, Seaton J.A. said this:

The demonstration of inordinate delay, inexcusable delay and serious prejudice does not lead necessarily to dismissal. Those three factors are only the primary considerations; all of the circumstances must be considered. It is still for the courts to decide "whether or not on balance justice demands that the action should be dismissed". Salmon L.J. in Allen v. Sir Alfred McAlpine & Sons Ltd. All of the statements of law are subject to the overriding principle that essential justice must be done. (See Freeman J.A., as he then was, in Ross and Ross v. Crown Fuel Co. Ltd. et al (1962), 41 W.W.R. 65 at 88, 37 D.L.R. (2d) 30 (Man. C.A.).)

[25]         It should not come as surprise to Mr. Scurfield and his counsel that the defendants made this application for the dismissal of this action for want of prosecution. Mr. Scurfield has been repeatedly told that this would occur if they did not proceed with this action.

[26]         I will comment on Mr. Scurfield’s filing of a Notice of Intention to Proceed on May 24, 2017. Although this may be a step within the litigation, this is the first Notice of Intention to Proceed that has been issued and should have been issued after March 2011. After issuing the Notice of Intention to Proceed, Mr. Scurfield still did nothing to pursue his litigation. In my view, the Notice of Intention to Proceed issued by Mr. Scurfield is too little too late.

[27]         For these reasons, I dismiss Mr. Scurfield’s action and award costs of this application and the action to each Air Canada and Jazz, the Attorney General and Airport.

“H.C. Hyslop J.”

HYSLOP J.