2005 BCSC 19 Esa Holdings Ltd. v. Ventana Construction Corporation

Before: The Honourable Mr. Justice S.R. Romilly

Reasons for Judgment

Counsel for the Appellant	M. Stacey
Counsel for the Respondent	D. Taylor
Date and Place of Hearing:	January 4, 2005
	Vancouver, B.C.

A. Nature of the Hearing

[1] This is an appeal from an order of a Master dismissing an action for want of prosecution. This decision is appealed on the following grounds:

1. The Master erred in law by incorrectly applying the test for an application to dismiss an action for want of prosecution; or

2. The Master erred in law by failing to consider evidence of an absence of prejudice with respect to the issue of prejudice under the test for an application to dismiss an action for want of prosecution.

[2] For the reasons stated below, the appeal is dismissed with costs.

B. Factual Background – Facts that were before the Master

[3] On or about 1997, the Respondent constructed a strata building adjacent to property owned by the Appellant on Seymour Street, Vancouver, British Columbia. At the time, a building existed on the Appellant’s property that was rented to Seymour Billiards.

[4] The Appellant alleges that during the construction of the strata building, the Respondent, or contractors, or other parties employed by the Respondent, trespassed onto the Appellant’s property and negligently used the roof of the Appellant’s building to store equipment and building materials.

[5] As a result of the alleged trespass, the Appellant contends that water leaked into the Appellant’s building. The tenant, Seymour Billiards subsequently quit the lease and the Appellant lost considerable rental revenue and suffered various other damages.

[6] The Appellant’s building was demolished in 1999 and a parking lot was operating on the property.

[7] The Writ of Summons was filed on October 12, 1999 and an Appearance was filed thereafter. A Statement of Claim was not demanded given assurances from Appellant’s counsel to the adjuster for the Respondent, that further particulars respecting the Appellant’s claim would be provided. The adjuster had been requesting this information for a considerable time and by letter dated May 16, 2000, approximately three years after the alleged incident, counsel for the Respondent informed Appellant’s counsel that it had instructions to make an application to have this claim dismissed unless there was immediate action on the Appellant’s behalf.

[8] Approximately two weeks after that letter, by letter dated May 29, 2000, Appellant’s counsel provided the Respondent’s adjuster a vague estimate of the Appellant’s losses in the range of $65,000 to $150,000, a promise to provide a copy of a videotape showing damages, and a speculation that the damage occurred over a period of time prior to August 1997, and/or some period of time after the underpinning agreement was entered into with the Appellant. At the close of that letter Appellant’s counsel asked that no steps be taken in default of providing a Statement of Claim.

[9] The videotape was not provided to the adjuster until July 12, 2000.

[10] By letter dated April 18, 2001, Appellant’s counsel informed the Respondent’s adjuster that the Appellant would not be providing any documentation evidencing the damage to the Appellant’s building but instead would be relying only on the evidence of witnesses.

[11] By letter dated May 2, 2001, Mr. Lindsay a partner of Lindsay Kenney, solicitors for the Respondent, requested the Statement of Claim within fifteen (15) days.

[12] The Statement of Claim was filed and served on May 16, 2001. Almost four years after the alleged incident.

[13] On or about July 10, 2001 the Appellant provided a list of documents listing only two documents, the video cassette already provided and a copy of a letter to Mr. Shymka from THAM Demolition Ltd. which was never produced.

[14] By letter dated January 30, 2002, the fifth year since the alleged incident, Respondent’s counsel requested the name of the Appellant’s representative for the purpose of examination for discovery and a copy of an expert’s report that Appellant’s counsel told Respondent’s counsel it had. This expert’s report has never been produced.

[15] By letter dated February 5, 2002 to Lindsay Kenney, Appellant’s counsel apologized for the delay in providing the expert report although it was never provided, and identified Mr. Ernie Shymka as the most knowledgeable candidate to be discovered on behalf of the Appellant. Mr. Shymka was a director of the Appellant and he was, at the time, licensed to practice law in the Province of Alberta.

[16] By letter dated March 20, 2002 to Appellant’s counsel, Ms. Braun attempted to arrange for examinations for discovery to follow in April or May of 2002.

[17] On or about April 12, 2002 Appellant’s counsel informed Ms. Braun that he would likely be getting off the record for ESA Holdings Ltd. given that he had been unable to get instructions from his client regarding examinations. By letter dated May 8, 2002 to Appellant’s counsel, Ms. Braun confirmed this information and inquired whether he had further instructions or knew of the Appellant’s intentions to pursue this action.

[18] By letter dated May 23, 2002 to Appellant’s counsel, Ms. Braun inquired again as to whether Appellant’s counsel had further instructions and whether the Appellant was still pursuing this action.

[19] Approximately two months later Appellant’s counsel filed a Notice of Withdrawal on July 25, 2002.

[20] There was subsequently no action on this file until June of 2003, five years after the alleged incident, when Respondent’s counsel served the Appellant with an Appointment for examination for discovery to be held on July 31, 2003.

[21] On July 30, 2003, Respondent’s counsel tried to contact Mr. Shymka, the representative of the Appellant, by telephone and was advised by his office that he may be out of town.

[22] Later that day, Mr. Shymka requested an adjournment of the examination for discovery in order to allow him time to speak with his former counsel and to retain new counsel.

[23] A second appointment was sent to Mr. Shymka on August 7, 2003 for an examination for discovery on August 29, 2003. On August 26, 2003, Mr. Shymka confirmed that he would be attending that examination for discovery.

[24] The morning of the discovery, August 29, 2003, Mr. Shymka informed Respondent’s counsel by voicemail message that he would not be attending the examination for discovery because something came up.

[25] As of September 15, 2003 nothing further was heard from Mr. Shymka. It had been over two years since the Appellant had taken any steps in this proceeding while not having an address for service within the Province of British Columbia since July 25, 2002 as required by our Rules of Court.

[26] The application materials to dismiss this claim were sent to the Appellant on September 16, 2003.

[27] Late in the day on September 25, 2003, Mr. Shymka telephoned Ms. Braun and told her that he was a solicitor practising in Alberta and that he wanted to retain a British Columbia lawyer to speak to this application.

[28] On September 29, 2003, Ms. Braun received a message from Mr. Shymka informing her that he would be attending the hearing of the application in person.

[29] On October 1, 2003, the day before the application was first to be heard, Mr. Shymka spoke with Respondent’s counsel twice. During the first conversation he informed Ms. Barnard, an associate with Lindsay Kenney, that he was unavailable to deal with the application and that he had spoken to Mr. Stacey who was not available on October 2, 2003. He further advised Ms. Barnard that he received his file materials from his former counsel and that he was unable to retain counsel until those file materials were provided to new counsel. In his second conversation that day with Ms. Barnard, she agreed to an adjournment of the application until October 8, 2003 in order to allow Mr. Shymka time to provide the file materials to Mr. Stacey and enough time for Mr. Stacey to review the file materials.

[30] On October 6, 2003, Respondent’s counsel received a telephone call from a British Columbia lawyer, Mr. Spector, requesting a copy of the motion materials because Mr. Shymka had not provided all of the materials to Mr. Stacey. Mr. Spector was advised at that time that Ms. Braun would not agree to a further adjournment.

[31] The hearing of this application was set to be heard on October 8, 2003. Master Groves adjourned the hearing of the application until October 22, 2003.

[32] In his Affidavit sworn October 20, 2003, Mr. Shymka sets out health problems and lack of communication with his former counsel, Vernon Pahl of Guild Yule & Company, as the reasons for the delay in proceeding with this claim.

[33] It was with this factual background that the Master decided that the Appellant’s claim should be dismissed.

[34] In order to deal with the issues raised by counsel on this appeal, it would be prudent for me to first discuss the applicable law that applies to the subject in issue.

C. The Law

[35] The proper test to apply in considering an appeal of an order of a master under Rule 53(6), is set out in Abermin Corporation v. Granges Exploration Ltd. (1990), 45 B.C.L.R. (2d) 188 at p. 193:

An appeal from a Master's order in a purely interlocutory matter should not be entertained unless the order was clearly wrong. However, where the ruling of the Master raises questions which are vital to the final issue in the case, or results in one of those final orders which a Master is permitted to make, a rehearing is the appropriate form of appeal. Unless an order for the production of fresh evidence is made, that rehearing will proceed on the basis of the material which was before the Master. In those latter situations, even where the exercise of discretion is involved, the judge appealed to may quite properly substitute his own view for that of the Master.

[36] According to Irving v. Irving (1982), 38 B.C.L.R. 318 (C.A.) and Tundra Helicopters Ltd. v. Allison Gas Turbine (2002), 98 B.C.L.R.(3d) 238 (C.A.), when deciding whether to dismiss a proceeding for want of prosecution under Rule 2(7) the court must consider the following:

(1) has there been an inordinate delay;

(2) if so, was the inordinate delay excusable;

(3) did the inordinate delay cause, or is it likely to cause serious prejudice to the applicant; and

(4) do the interests of justice demand that the action be dismissed.

D. Position of the Appellant

[37] Counsel for the Appellant submits that a significant portion of the alleged delays in this action occurred between early 2002 and late 2003. During this time, Mr. Shymka, the principal of the Appellant was often ill and had difficulty communicating with his former counsel.

[38] The Appellant has offered the court three explanations as to why the action was not moved forward more expeditiously during this period between early 2002 and late 2003:

(a) Mr. Shymka suffered from a serious medical condition: sleep apnea, which causes disturbed sleep and excessive fatigue;

(b) Mr. Shymka suffered from a number of other medical conditions which at times resulted in his hospitalization; and

(c) There was a lack of communication between Mr. Shymka and his former counsel, who directed correspondence to an address which Mr. Shymka and ESA Holdings Ltd. ceased using.

[39] Counsel for the Appellant points out that the courts have excused delay that arises out of an illness or injury to the plaintiff: Studer v. Hill [1992] B.C.J. No. 2514 (B.C.S.C.) at p. 4.

[40] Additionally, the Appellant submits that the delays in this case have not been for any improper motive, or designed to gain a tactical, or any other, advantage. The delay was due primarily to Mr. Shymka’s illness, which contributed to the communication problems with former counsel.

[41] Counsel for the Appellant also drew my attention to the fact that the Appellant was willing to move the action along once Mr. Shymka’s health had improved, as was the case by October, 2003. Mr. Shymka responded to medical treatment for his ailments and retained new counsel, whom he instructed to agree to the setting of reasonable dates for the production of documents and conduct of any examination for discovery that may be required by both parties.

[42] Counsel for the Appellant argues that even if the Master found that there was inordinate delay in this case, he erred in finding that there was actual serious prejudice to the Respondent. In support of this proposition, he drew my attention to Hi-To Fisheries v. Pacific Forex, [2003] B.C.J. No. 3091 (S.C.) at para. 13, affirmed on appeal at [2004] B.C.J. No. 2246 (C.A.).

E. Analysis

[43] I have listened with interest to the submissions of both counsel on this appeal and I have taken overnight to read the judgment of the learned Master. His reasons are in my view unassailable. I agree with his finding that on the evidence before him the delay was indeed inordinate. I also agree with his findings that there was indeed actual serious prejudice to the Respondent in this case. In this regard I refer specifically to his findings in paras. 11-14 of his reasons for judgment.

F. Conclusion

[44] On the basis of the foregoing, I would dismiss the appeal with costs.

“S.R. Romilly, J.”
The Honourable Mr. Justice S.R. Romilly

Citation:	*Esa Holdings Ltd. v. Ventana Construction Corporation,*
	2005 BCSC 19