Court of Appeal

Guinan, et al, v. Northwestel, et al, 2001 NWTCA 4
Date: 2001 06 15
Docket:

IN THE COURT OF APPEAL OF THE NORTHWEST TERRITORIES


THE COURT:

The Honourable Madam Justice C.M. Conrad
The Honourable Madam Justice E.A. McFadyen
The Honourable Mr. Justice R.L. Berger



BETWEEN:
PAT GUINAN, DERRAN GUINAN and
NETWORK NORTH COMMUNICATIONS LTD.

Appellant
- and -


NORTHWESTEL INC. and MIKE STILWELL

Respondent

APPEAL FROM THE JUDGMENT OF
THE HONOURABLE JUSTICE J.E. RICHARD



MEMORANDUM OF JUDGMENT
DELIVERED FROM THE BENCH





COUNSEL:

R. Drewry
For the Appellant

R.A. Kasting
    For the Respondent



































MEMORANDUM OF JUDGMENT
DELIVERED FROM THE BENCH



CONRAD J.A. (for the majority)

[1] We have arrived at a decision.  The decision is divided, and I will give the majority decision.  Mr. Justice Berger concurs in this decision. Madam Justice McFadyen will then give her dissenting reasons for decision.

[2] Guinan and the balance of the appellants appeal from an order dismissing their action against Mike Stilwell for want of prosecution under Rule 327(1)(a) of the Northwest Territories Rules.

[3] The appellant argues that the Rules do not allow for a partial dismissal of an action against one defendant only.  We find it unnecessary to resolve that issue in view of our decision.  Even if partial dismissal is allowed we are of the view that a Chambers judge must review the conduct of the action as a whole when assessing whether there was inordinate delay with respect to one defendant.

[4] The finding of inordinate delay is critical to our decision.  In arriving at his decision that the delay was inordinate, the learned Chambers judge reasoned as follows: (page 6, paragraph 9):

Evidence of this application satisfies me that the plaintiffs did nothing to further their action against Stilwell from the date of examining him at discovery (August 27, 1997) until the within application was launched -- a period in excess of 2   years.  In the circumstances of this case, including the unanswered demands in 1996 and 1997 for particulars of the plaintiffs  claim as against Stilwell, I consider that to be inordinate delay.

[5] It is apparent that the unanswered demands of 1996 and 1997 were significant factors driving his conclusion.  In fact, subsequent to the examination of Mr. Stilwell on August 27, 1997, the plaintiff Pat Guinan was examined in early and late October 1997, and his undertakings provided to Northwestel September 25, 1998.

Page: 2

[6] In correspondence dated September 29, 1997, counsel for the respondent confirmed that they had been advised that the demand would not be answered until  examinations were concluded.

[7] Mindful of the failure of the defendant to take any steps to compel a reply, this can only be construed as acquiescence in the alleged delay to providing the particulars.  It follows that the learned Chambers judge erred in attributing fault to the plaintiff for the delay said to have occurred between 1996 through 1997.

[8] Thereafter, as revealed by the letter of November 22, 1999, counsel for the estate of Stilwell was aware of the then ongoing negotiations to settle the action with Northwestel and explored the possibility of a discontinuance of action against Mr. Stilwell without costs.

[9] It is unfortunate that these arguments appear not to have been fully canvassed before the learned Chambers judge.  At no time did Stilwell or the Stilwell estate make any effort to examine the plaintiffs or bring an application for particulars.  In multi-party litigation, a judge must consider the delay with respect to one defendant in the context of the conduct of the whole action.  In this case, counsel for the respondent acknowledges that the plaintiffs could only have advanced the action by responding to the particulars, or by providing the expert report and copies of correspondence.  The discoveries of Stilwell were complete.  There is no suggestion that the balance of the action was delayed.  The defendant Stilwell had not sought discovery of the plaintiffs.  On the record, not much more could have been done by the plaintiff vis-à-vis Stilwell.

[10] We acknowledge that deference is owed the decision of the Chambers judge. However, where the underpinnings of that decision are problematic, appellate intervention is appropriate.  In this case, mindful also of the unexpired limitation period, we are of the view that we should interfere.

[11] Accordingly, the appeal is allowed, and the action reinstated. On the fresh evidence application, we decline to admit the fresh evidence.

APPEAL HEARD on APRIL 24, 2001, MEMORANDUM FILED at
YELLOWKNIFE, Northwest Territories this 15th day of June 2001
Authorized to sign for:
CONRAD, J.A.

Page: 3

MCFADYEN, J.A. (Dissenting)

[12] I would dismiss the appeal.  I am generally in agreement with the reasons of the  Chambers judge.  I am not persuaded that he committed any error in his assessment of the facts, the application of the facts to the law or his exercise of discretion.  I do not
view Rule 327(a) as limiting the jurisdiction of the court to a dismissal of the action against all parties.

[13] It is clear that the Chambers judge assessed the circumstances in this matter as indicative of the fact that after completion of the examinations for discovery of Stilwell, the plaintiffs largely ignored the existence of this minor defendant in the pursuit of their action against Northwestel, the primary defendant in this case, resulting in an inordinate delay in the Stilwell action.

[14] In addition to the delay which was outlined by the Chambers judge in his reasons, of significance are the following factors:

a) There was a delay in dealing with the particulars,
b) The failure to include Stilwell s counsel for a period of time in any correspondence or information regarding the activity on the file with the  other defendant, and finally,
c) There was a delay between June of 1999 and March of 2000 in furnishing the expert s report to Stilwell s counsel.  This date was after the commencement of this application.

[15] I do not view the respondent s failure to bring an application for an order for particulars nor the contents of the letter of September 27, 1997 as indicative of acquiescence.  The failure to bring the application does not excuse the plaintiffs  obligation to pursue the action against Stilwell promptly.

[16] I am of the view that the September letter merely repeated the demand for particulars and acknowledged the earlier indication on the part of counsel for the plaintiffs that these particulars would be provided after the discoveries were completed and note that this has never occurred.



Page: 4


[17] I would dismiss the appeal.

APPEAL HEARD on APRIL 24, 2001
MEMORANDUM FILED at
YELLOWKNIFE, Northwest Territories
this 15th day of June 2001

                                                        Authorized to sign for: MCFADYEN, J.A.




























AP 2000000003


IN THE COURT OF APPEAL
OF THE NORTHWEST TERRITORIES



BETWEEN:


PAT GUINAN, DERRAN GUINAN and
NETWORK NORTH COMMUNICATIONS LTD.

Appellant
- and -


NORTHWESTEL INC. and MIKE STILWELL

Respondent



MEMORANDUM OF JUDGMENT