Supreme Court

IN THE SUPREME COURT OF THE N'ORTHWEST TERRITORIES BETWEEN: VINCENT COLIN ADDISON, - and -

WILLIAM LEWIS RIPLEY, Defendant REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE W. G. MORROW Application was made before mo for an Order granting leave to take the next step in this action. The material before • me took the form of two affidavits filed. The first affidavit was by Alex N. Maclver, a member of the firm of solicitors acting for the plaintiff. He deposes that his Yellowknife agents filed the Statement of Claim on June 20th, 1968. The action is one of negligence involving operation of a motor vehicle. An order for service ex juris providing for service on the defendant at Lanont or elsewhere in Alberta was obtained from me on August 8, 196S. On attempting to effect this service the process server was informed the defendant had gone to Kitimat, British Columbia, to seek employment. A further order for service ex juris was obtained on April 50, 1969, permitting service at Kitimat or elsewhere in British Columbia. Pursuant I to an order by me dated July 5, 1969 the Statement of Claim was renewed for a further three months. Finally on October 10, 1969,

sc civ 15 on 265 Plaintiff

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- 2 -^ an Order for Substitutional Service was obtained providing that service would be considered good and sufficient if copies of the Statement of Claim were mailed to the Defendant, at Redwater, Alberta, at Kitimat, British Columbia, and by placing an advertisement in a nev/spaper circulating in the Kitimat area. These instructions were carried out and it would appear that the efforts succeeded as a Mr. T. N'ugent, solicitor, contacted the plaintiff's solicitors by telephone and asked that they not note the defendant in default witliout first letting him. know. This solicitor also undertook to accept service of the Statement of Claim. t Obviously arising out of the above events, plaintiff's solicitors next received a letter from their Yellowknife agents enclosing a letter from Messrs. Fenerty, HcGillivray and Company, dated November 19th, 1969. This letter set forth that they represented the London and Midland General Insurance Company, that they understood service of the Statement of Claim had been made as of October 31, 1969, and asking plaintiff's solicitors to "extend to us the courtesy of refraining from taking any further steps herein without notice to us.'" The letter explained they wanted this courtesy to permit their principals to complete their investigations and provide them with their instructions. By letter dated December 16, 1969, the Fenerty firm wrote to plaintiff's solicitors confirming their "understanding that you i will not be taking any further steps in this matter without notice to us."

26?-I - 3 -According to Maclver's affidavit he received a call from }\r. A. D. Hunter of the Fenerty firm on Decem.bcr 1, 1969 during which a discussion tooV place as to possible amendment of the Statement of Claim and tlie Fenerty firm was assured they would not be required to file a defence until the plain-tiff's solicitors had considered their position and had de­cided whether to amend. This latter assurance was confirmed by letter to Fenerty and Comoany dated December 16, 1969. >!acIvor had a phone conversation with R. L. Fenerty, Q.C. of the Fenerty firm on 'lovembor 5, 1^70, during which the action was discussed and 'Ir. Fenerty stated he was under the im­pression there v/ould be an anendnent and lie would not have to I file a defence until ho heard further. By letter dated No­vember 10, 1070 Maclver assured 'Jr. Fenerty tliat he wished to discuss the matter further with their Yellowknife agents and stating as soon as they had they would be in touch with him. This would appear to be the last serious effort in this case until May 9, 1973. As Maclver swears: That due to an oversight, the file Was not recalled until May 9th, 1973 at which time I contacted Mr. Fenerty. I met Mr. Fenerty on May 11, 1973 and at that time he pointed out that more than a year had elapsed. ' Mr. Maclver concludes his affidavit by saying he in-I tends to amend the Statement of Claim and that he believes there

1 ^ 0 has been no prejudice to the defendant by the delay. The second affidavit is by Robert Lloyd Fenerty, solicitor for the Insurance Company referred to above. He sets forth tlie circumstances surrounding his client's contract with the defendant, suggests a possible breach of the policy, and refers to an agreement dated January 6, 1967 whereby the Insurance Company is authorized to investigate, compromise and settle the claim, without waiver of any of the Company's rights to refuse to indemnify. Mr. Fenerty confir.ms the granting of the courtesy to refrain from taking further steps without notice to his fir.-n as mentioned in Maclver's affidavit. He refers to his understanding I that Mr. T. Nugent was consulted by the defendant.in December 1969. According to Mr. Fenerty he confirms tliat his last communication from Maclver was November 10, 1970. Notwithstanding this in July 19 71 he was in toucli with Mr. T. Nugent and v/as ad­vised by him by letter dated August 13, 1971, that he had been unable to get hold of the Defendant and was opposed to any effort to continue the proceedings. Mr. Fenerty then goes on to state that when advised ­of the motion to apply for leave to continue he was told by Mr. Nugent that he had lost track of his client and has no idea whether witnesses will be available and does not consider it possible to adequately represent the defendant under the cir-I cumstances. Commencing September 28, 1973, Mr. Fenerty apparently

2€9 I - 5 ­initiated enquiries in an effort to locate the several poten­tial v.'itnesscs to the accident. It v;ould appear from his affidavit that he has been unable to locate two of som.e four possible witnesses, that he has apparently located an address for the defendant but as of this date no reply from him to letters written October 4. In his concluding paragraph he states that he doesn't believe the interests of the defendant can now be adequately represented. It should be mentioned that counsel for the applicant made it very clear at tlie outset that he was not suggesting in any way that any actions by the Fenerty firm had in any way I misled plaintiff's solicitors or contributed to the position they now found themselves in. The present application is .made under our Rule 243 which is the same as .\lberta Supreme Court Rule 243. (Judicature Ordinance O.N.W.T. 1970 (2d) c. 5 s. 25) whicii provides: "243. Except on application under Rule 244, no new step in an action prior to judgm.ent shall be taken after the expiration of one year from the time when the party desiring to take the step first became entitled to do so, except with leave of the court which may impose terms." This or similar rules have been the subject of judicial review in many jurisdictions: viz. Clairmonte v. Canadian I Imperial Bank (1970) 12 D.L.R. (3d) 42S (Ont.), Marshall v.Fire

Ki.n"' - "• f - e -Insur. (1970) 71 V,'.V/.1\ 647 (Alta.); and Carey v. Twohig 1973 4 W.K.R. 37S (Sask); just to list a few. Of particular interest is the decision of the Appellate Division of the Supreme Court of Alberta in Tiecmaki et al v. Wilson et al (1972) 23 D.L.R. (5d) 179. As tliis Appeal Court decision is based on the same rule as in this jurisdiction and as that Court is by the Judicature Ordinance (supra) reconstituted as the Appeal Court of the Territories, its consideration of the Rule must be taken by me to be authoritative. In ivriting the majority judgment, Johnson, J.A. gives a careful review of the law, including the practice in the English Courts. .-Xfter affirming that rules for governing all applications for want of prosecution are the same lie cites with approval the rules to be applied, as laid do\/n by Sali.ion, L.J., in Allen, v. Sir Alfred McAlpine & Sons Ltdl, 196S 2 Q.B. 229 G 268; 1968 1 All E.R. 543 where he states: ''In order for such an application to succeed, tiie defendant must show: (1) tliat tliere has been inordinate delay. (2) that this inordinate delay is inexcusable. (3) that the defendants are likely to be seriously prejudiced by the delay.'' On the facts before me the only explanation given on I behalf of the plaintiff is Mr. Maclver's statement that ''due

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- 7 ­to an oversight, the file was r.ot recalled until May 9th, 1973 ... ." I canjiot but hold tliat this constitutes inordinate delay and that it is inexcusable. The applicants to this ex­tent have failed in satisfying the burden that I understand is placed upon them by the above authorities. But this leaves the third rule. It would seem to be a burden resting on the respon­dent to establisli serious prejudice. In the present case Mr. Fenerty by his deposition suggests difficulty about finding all of the witnesses and difficulty in perhaps establishing the defence position in respect to hire of the vehicle. V/hile it may be that there may be some difficulty here, I can see nothing in the material that in my opinion can be classified as con­stituting serious prejudice. I am not unmindful of the "overriding consideration" as Johnson, J.A. calls it that in applying these three rules, the Court should ensure that essential justice is done. The delay in the present case, on the facts before me, cannot be attributed directly to the plaintiff himself, but to his solicitor. On the facts before mo, therefore, I conclude that leave should be granted to the plaintiff as sought. Rule 243 gives authority to the Court to impose terras. This seems to be a case where terms would be justified- It was admitted by counsel that t'le plaintiff is now out of the juris-diction. Security for costs can be applied for later but this

272 t - 8 ­factor considered along with the delay should be taken into consideration in fixing the terms to be imposed. Leave to continue will be given conditional on the plaintiff: (a) Paying to the Respondent's solicitors the sum of $200.00 to cover their expenses on appearing on this n;otion, such payment to be without reference to the ultimate outcome of the present action; said sum to be paid within 25 days of this date; (b) Filing the proposed amendment to the Statement of Claim herein (if agreed to by respondent) or applying to this Court for leave to amend within 50 days of the t date of this order. (c) If the above amendment is not sought then filing with the Respondents a notice to that effect within 30 days of the date of this order; (d) The costs of this application shall be charged to tlie plaintiff in any event and becom.o payable on final taxation in these pro­ceedings . Yellowknife, N.W.T. 31 October, 1973. Counsel: W. A. Stevenson, Esq., I For Applicant E. D. D. Tavcnder, Esq., For Respondent Insurance Company.