NOVA SCOTIA COURT OF APPEAL
Citation: MacMillan v. Children’s Aid Society of Cape Breton, 2006 NSCA 13
Date: 20060207
Docket: CA 244399
Registry: Halifax
Between:
Alexis John MacMillan
Appellant
v.
The Children’s Aid Society of Cape Breton and
Frank Sampson, Hildegarde O’Neil and Melinda MacLeod
Respondents
Judge(s): Roscoe, Saunders & Hamilton, JJ.A.
Appeal Heard: January 27, 2006, in Halifax, Nova Scotia
Held: Appeal dismissed as per reasons for judgment of Hamilton, J.A.; Roscoe & Saunders, JJ.A. concurring.
Counsel: David L. Parsons, Q.C., for the appellant
Philip M. Chapman, for the respondent
Reasons for judgment:
[1] Alexis John MacMillan appeals Chief Justice Joseph P. Kennedy’s decision dismissing his action against the respondents for want of prosecution pursuant to Civil Procedure Rule 28.13. Mr. MacMillan represented himself prior to appeal. At the conclusion of the hearing before us we indicated that the appeal was dismissed with reasons to follow. These are the reasons.
[2] On October 7, 1994, Mr. MacMillan commenced an action against the respondents, the Children’s Aid Society of Cape Breton (“CAS”) and several of its employees, with respect to their 1992/93 investigation into matters involving his daughter. Mr. MacMillan alleged he was improperly identified as the perpetrator of abuse towards her.
[3] Following the commencement of the action the following steps were taken in connection with it:
October 13, 1994 ‑ Defence filed by the respondents.
November 1, 1994 ‑ The respondents filed Demand for Particulars.
November 25, 1994 ‑ Mr. MacMillan applied for production of the CAS's complete file to enable him to respond to the Demand for Particulars. (There is no indication what resulted from this application)
January 4, 1995 ‑ The respondents applied for an order requiring Mr. MacMillan to respond to the demand for particulars or have his action struck as disclosing no cause of action pursuant to Rule 14.25.
January 11, 1995 ‑ Order granted requiring Mr. MacMillan to reply to the demand for particulars on or before January 31, 1995 or his claim would be dismissed with costs to the respondents.
January 31, 1995 ‑ Mr. MacMillan filed his reply to Demand for Particulars.
1995 ‑ Two telephone conversations between the respondents’ counsel and Mr. MacMillan wherein Mr. MacMillan was requested to file his list of documents.
March 19, 1996 ‑ At the end of a letter Mr. MacMillan wrote to the respondents’ counsel he indicated he would begin to prepare his list of documents.
March 3, 1998 ‑ Prothonotary issued a Notice of Order Dismissing Action pursuant to Rule 28.11. It advised Mr. MacMillan that he had 30 days to indicate to the Prothonotary whether he intended to proceed with his action. If he indicated his intention to proceed, he was then required to file a Notice of Trial. If he did not indicate he intended to proceed, the Prothonotary would dismiss his action.
March 31, 1998 ‑ Mr. MacMillan filed a Notice of Intention to Proceed.
April 1, 1998 ‑ In response to a telephone call from Mr. MacMillan, the respondents' counsel wrote to him seeking his list of documents. Mr. MacMillan wrote to the respondents' counsel indicating he was going to proceed with the action and discussing production of documents.
April 3, 1998 ‑ The respondents’ counsel wrote to Mr. MacMillan outlining the process for exchanging lists of documents.
May 1, 1998 ‑ Mr. MacMillan applied under Rule 28.11 to extend the time to complete the steps he had to take before he could set his action down to be tried. In his supporting affidavit he stated he was and had been involved in other litigation, that he was diagnosed with schizophrenia in 1987 and had been under psychiatric care since that time, that his perception of time was different from that of other persons and that he felt he was under a legal disability.
May 13, 1998 ‑ Order granted allowing action to remain on the General List.
November 23, 2000 ‑ The respondents' counsel advised Mr. MacMillan of his willingness to meet to discuss case.
November 30, 2000 ‑ Meeting between Mr. MacMillan and the respondents' counsel took place. No resolution was reached.
April 5, 2001 ‑ The respondents’ counsel wrote to Mr. MacMillan indicating he wanted to set the matter down for trial but first wanted to know if Mr. MacMillan wanted to discover any CAS officials.
December 2001 ‑ Mr. MacMillan contacted the respondents’ counsel to discuss a possible resolution of the matter. No resolution was reached.
November 2003 ‑ By telephone the respondents’ counsel requested that Mr. MacMillan file his list of documents.
November 2003 - Following the above telephone conversation Mr. MacMillan advised the respondents’ counsel by letter that he had made a start towards the preparation of his list of documents further to the telephone conversation but that he would be out of the country until May 21, 2004, when he intended to get back to preparing it.
December 3, 2003 ‑ The respondents' counsel wrote to Mr. MacMillan and indicated the delay was unacceptable and that he intended to apply to have the action dismissed for want of prosecution.
February 7, 2005 ‑ Application commenced by the respondents to dismiss the action for want of prosecution, which gave rise to the decision under appeal.
[4] The application to dismiss was made under Rule 28.13:
Where a plaintiff does not set a proceeding down for trial, the defendant may set it down for trial, or apply to the court to dismiss the proceeding for want of prosecution and the court may order the proceeding to be dismissed or make such order as is just.
[5] The test for dismissal of an action for want of prosecution is well established. It is summarized in Clarke v. Sherman (2002), 205 N.S.R. (2d) 112 (CA):
[8] Thus, to summarize, in order to succeed the onus is upon a defendant to show: first, that the plaintiff is to blame for inordinate delay; second, that the inordinate delay is inexcusable; and third, that the defendant is likely to be seriously prejudiced on account of the plaintiff's inordinate and inexcusable delay. If the defendant is successful in satisfying these three requirements, the court, before granting the application must, in exercising its discretion, go on to take into consideration the plaintiff's own position and strike a balance ‑ in other words, do justice ‑ between the parties.
[6] The issue raised in this appeal is whether the judge erred in law in his interpretation and application of this test to the facts in this case.
[7] The standard of review in an appeal such as this, when the effect of the order is to terminate an action and bring an end to the rights of the parties, is “whether there was an error of law resulting in an injustice.” Clarke v. Sherman, supra, at ¶ 10.
[8] Mr. MacMillan argued that the judge erred by determining that there was inordinate and inexcusable delay, by presuming prejudice to the respondents and by failing to take the last required step, of taking into consideration Mr. MacMillan's position for the purpose of doing justice between the parties.
[9] With respect to the issue of inordinate delay, Mr. MacMillan argued the judge erred by failing to consider the nature of the case and that if he had done so he would have seen that taking 10 years to prosecute it was not inordinately long. He suggested the case was somehow a complex one because it involved Mr. MacMillan’s conduct and the competency of the CAS and its employees in its investigation.
[10] I am satisfied the judge did not err in finding that there was inordinate delay when over ten years after the commencement of his case Mr. MacMillan had not filed his list of documents, despite (1) several requests of the respondents’ counsel and (2) an indication from the court in March 1998 that he was acting too slowly in the prosecution of his case. There is nothing about this action that required such a long delay. There were no injuries that needed time to stabilize; no large numbers of witnesses spread out in different locations; no expert opinions to be obtained to explain technical matters. It was an action that would be determined on credibility to a large extent. As the respondents pointed out in their factum, after the more than ten year lapse, Mr. MacMillan produced the long sought list of documents within five weeks of the respondents’ application for dismissal being made.
[11] With respect to inexcusable delay, Mr. MacMillan argued the judge erred by not giving adequate weight to Mr. MacMillan’s mental health. He argued if the judge had considered Dr. Mian’s December 12, 2001 letter, a copy of which was attached to his factum, he would have found ten years meant something different to Mr. MacMillan than it did to most people because of his paranoid schizophrenia. Dr. Mian’s letter was not before the judge. No application was made for the introduction of Dr. Mian’s letter as fresh evidence. Mr. MacMillan suggested it was before the court on another matter and that he thought the judge would know of it and consider it without him filing it in this application.
[12] Mr. MacMillan’s failure to introduce Dr. Mian’s letter into evidence and call him as a witness to testify to it did not mean his mental health was not before the judge. Mr. MacMillan’s affidavit in support of his May 1, 1998 application to extend time to bring his action to trial sets out information similar to that contained in Dr. Mian’s letter, albeit not on Dr. Mian’s letterhead, namely: Mr. MacMillan’s diagnosis of schizophrenia in 1987, his ongoing psychiatric care, his different perception of time as compared with others and his suggestion that he was under a legal disability. In addition Mr. MacMillan testified about his mental health before the judge.
[13] The judge specifically considered Mr. MacMillan's mental health in his decision:
[12] He testified in the same manner at the hearing and said at that time that his medical circumstances cause him to, and I quote, "have problems with the passage of time", and he gave a description of his medical difficulties as an explanation for why he has taken this period of time to prosecute this matter. He did not produce expert medical evidence, no evidence that any application has ever been made on his behalf for the appointment of the litigation guardian. But he does want this Court to understand that he has a disability and claims that that is the reason, a reason, substantial reason for why we are here today in relation to the prosecution of this matter, or lack thereof.
[13] I note that at the hearing, and I certainly don't mean it to be patronizing, just as a matter of note, what judges do when we listen to people; I note that at the hearing the plaintiff presented as a very intelligent, articulate individual. Evidence was produced that he has represented himself in other litigation since the commencement of this action, the suggestion by defendants' counsel, being that he is both knowledgeable and able when he pursues these other matters.
[14] I do not find that the plaintiff has been medically unable to proceed with this matter, nor do I find, on the basis of the limited evidence produced, that he is disabled in any manner that effects his ability to have prosecuted this matter more diligently. I find rather, that the evidence discusses that he has been lax in his prosecution of the matter. This matter is ten and a half years old.
[14] This is an appeal, not a retrial on the record. It is not for this Court to act on the basis of its own fresh assessment of the evidence. We only intervene if the judge erred in legal principle or made a palpable and overriding error in finding the facts. Mr. MacMillan has not satisfied me that the judge erred in his assessment of inexcusable delay in light of Mr. MacMillan’s mental health.
[15] Also with respect to inexcusable delay, Mr. MacMillan argued the judge erred by giving too much weight to the fact he represented himself in commencing, maintaining and settling several other law suits during the time this action was ongoing and drawing the conclusion that he was experienced enough to have pursued this action in a timely manner if he chose to do so.
[16] There was significant evidence before the judge of the many law suits in which Mr. MacMillan was involved and represented his own interests: an action against a local publishing company; a motor vehicle accident action; several family court proceedings that involved subpoenaing and calling witnesses; an action against his insurance company (including successfully defending an application to dismiss the action based on a missed limitation period); an action for disability benefits and an action involving his investment in a construction company.
[17] The judge referred to Mr. MacMillan’s involvement in these law suits in ¶13 of his decision which is quoted in ¶ 13 above. As set out in ¶ 14 above, this is an appeal not a retrial of the matter. The judge did not err in considering Mr. MacMillan’s involvement in other law suits in determining if his 10 year delay in providing his list of documents in this action amounted to inexcusable delay.
[18] With respect to prejudice, Mr. MacMillan argued the judge erred by presuming the respondents were seriously prejudiced by the delay rather than requiring the respondents to prove they were seriously prejudiced by it. He argued this was particularly so given the mandate of the CAS which should require it to maintain records of events that took place many years ago.
[19] The case law indicates prejudice may be presumed in some circumstances. The judge referred to this case law and found that in the circumstances of this case he should presume serious prejudice rather than require the respondents to prove it:
[23] Mr. Justice Chipman of our Court of Appeal in Saulnier v. Dartmouth Fuels Ltd. (1991), 106 N.S.R. (2d) 425, . . . confirmed the Cooper test in Martell on the question of onus at page 430. . . . I quote:
All that can be said generally about onus is that while the onus is initially upon the defendant as applicant to show prejudice, there may be cases where the delay is so inordinate as to give rise in the circumstances to an inference of prejudice that falls upon the plaintiff to displace. The strength of the inference to be derived from any given period of delay will depend upon all the circumstances in the case.
[24] And finally in Moir v. Landry (1991), 104 N.S.R. (2nd) 281 (N.S.C.A.), this was a case involving a three year delay. Mr. Justice Hallett, of the Court of Appeal, writing for the Court, noted that the onus to establish prejudice falls on the defendant except in cases of unusual long delay, such as the ten years in Martell. Justice Hallett said at page 284 in Moir v. Landry, supra, . . . :
A plaintiff has a right to a day in Court and should not lightly be deprived of that right. Therefore, it is only in extreme cases of inordinate and inexcusable delay that a Court should presume serious prejudice to the defendant in the absence of evidence to support such a finding.
[25] This is one of those cases. I am satisfied that as a result of the inordinate, inexcusable, extreme delay in excess of ten years in relation to this matter, that I can presume serious prejudice to the defendants. I do not find that the plaintiff has satisfied the onus to establish that no such prejudice exists.
(Emphasis mine)
[20] Mr. MacMillan’s argument that the special position of the CAS, requiring it to keep detailed records for lengthy periods of time, should somehow negate prejudice in this case is without merit in light of the nature of his allegations against the respondents. I agree with the respondents that it is unrealistic to suggest that the merits of Mr. MacMillan's claims could be fully canvassed by reference to documentary evidence alone.
[21] Some examples of Mr. MacMillan’s claims, all relating to 1992/93, are: a complaint about the "attitude and intimidation" of Jim Chisholm during a visit to Mr. MacMillan's home; a conversation with Hildegarde O'Neill on May 3, 1993; a comment by Melina MacLeod regarding an assessment of Mr. MacMillan’s daughter and a purported “promise” by Frank Sampson to arrange a face to face meeting; statements by Jim Chisholm regarding certain audiotapes and his refusal to hear them; Mr. Chisholm's alleged failure to contact or seek interviews with the paternal grandparents; and comments made by Mr. Chisholm to Mr. MacMillan regarding the psychological well being of the child. The adjudication of those claims would depend largely on the credibility of the witnesses, their recollection of the matter and the accuracy of what was said to whom. It can be presumed that the recollection of the witnesses would have faded after 13 years.
[22] Given the 10 year hiatus following Mr. MacMillan’s commencement of his action and considering the nature of the claims he made, I am satisfied the judge did not make a reviewable error in presuming prejudice to the respondents.
[23] I am also satisfied the judge did not err in finding Mr. MacMillan did not displace this inference of prejudice. In his decision the judge stated:
[26] The evidence that Mr. MacMillan believes that the defendants are still available and that they should be able to respond to this matter, does not tell the Court anything about how these defendants will be able to respond to allegations of this nature about events taking place after such a substantial period of time.
[24] Mr. MacMillan’s bald statement is not sufficient to displace the presumption of prejudice. He provides no evidence that key witnesses are available after 13 years or that their memories have not been impaired. Support for this is found in Savoie v. Fagan et al (1998), 165 N.S.R. (2d) 276 (CA) at ¶ 23.
[25] With respect to the final balancing step, Mr. MacMillan argued the judge erred after he was satisfied that there had been inordinate delay, that the delay was inexcusable, and that the delay seriously prejudiced the respondents, by failing to consider Mr. MacMillan's position and the need to strike a balance.
[26] As argued by the respondents, it has been said that if a plaintiff is “personally to blame for the delay, no difficulty arises. There can be no injustice in his bearing the consequences of his own fault” Allen v. Sir Alfred McAlpine & Sons Ltd. [1968] 1 All E.R. 542 at 561(C.A.) as cited in Moir v. Landry, (1991), 104 N.S.R. (2d) 281 (CA) at ¶ 5.
[27] This point was also made in Clarke v Sherman, supra, at ¶ 19:
It was incumbent upon the Chambers judge to carefully analyze the evidence presented by the parties, consider the extent of the appellant's own blameworthiness, and in the exercise of his discretion strike a fair and just balance between the appellant's position and that of the respondents.
(Emphasis added)
[28] The judge did not frame his decision in just this way, but it is clear he considered the fault of Mr. MacMillan in the delay compared to the prejudice to the respondents and balanced their interests in arriving at his decision:
[27] And I will say this, firstly let me say that to deprive Mr. MacMillan of his ability to have his day in court in this matter, is a dramatic, draconian action on the part of the court and I do not for one moment exercise that discretion without understanding the dramatic ramifications.
[28] But I will say this also; there are real people on the other end of this matter; people who have had these allegations hanging over their heads without ever having been given an opportunity to respond to the allegations, for too long. To allow this action to go forward, after this substantial period of time, would be to do a grave injustice to the defendants.
[29] I am, of course, and I will repeat, mindful of the fact that a dismissal will deny this plaintiff his day in court, but I think in these circumstances that action is justified.
(Emphasis mine)
[29] Mr. MacMillan has not satisfied me that the judge failed to consider Mr. MacMillan’s position when he struck the balance.
[30] Accordingly, I would dismiss the appeal and order costs payable by Mr. MacMillan to the respondents in the total amount of $1,000 plus disbursements.
Hamilton, J.A.
Concurred in:
Roscoe, J.A.
Saunders, J.A.