Cite as: Canada (Attorney General) v. Foundation Company of Canada, 1990 NSCA 24 IN THE SUPREME APPEAL DIVISION Hallett, Matthews and Chipman, JJ.A. BETWEEN: THE ATTORNEY GENERAL OF CANADA, on behalf of Her Majesty the Queen in Right of Canada Appellant - and - THE FOUNDATION COMPANY OF CANADA a body corporate, C. A. FOWLER, BAULD & MITCHELL LIMITED, a body corporate, TOWER MASONRY CONTRACTORS LIMITED,- body corporate, THOMPSON & SUTHERLAND LIMITED, doing business under the firm name and style of Tasco Sheet Metal and Roofing Company, FORD GLASS LIMITED, a body corporate, REID J. SHANKS a body corporate, NEW ROTTERDAM INSURANCE COMPANY, a body corporate, and NORTHUMBERLAND GENERAL INSURANCE a body corporate Respondents S.C.A. No. 02272 COURT OF NOVA SCOTIA ) ) ) A. D. Tupper ) J. W. S. Saunders ) for the Appellant ) ) ) ) ) LIMITED, ) J. P. Merrick, Q.C. ) D. A. Jamieson-Fraser ) for the Respondent, a ) The Foundation ) Company of Canada ) Limited ) ) G. W. MacDonald, Q.C. LIMITED, ) S. C. Norton ) for the Respondent, ) C. A. Fowler, Bauld COMPANY, ) & Mitchell Limited ) ) G. R. Anderson ) for the Respondent, ) Tower Masonry ) Contractors Limited ) ) M. J. Wood ) for the Respondent, ) Ford Glass Limited ) ) E.A.N. Blackburn,Q.C. ) for the Respondent, ) Reid J. Shanks Limited ) ) M. S. Ryan, Q.C. ) for the Respondent, ) New Rotterdam ) Insurance Company
THE COURT: The appeal is al 1 owed order of Mr. Justice costs of the application before him to the appellant as per reasons for judgment Matthews, JJ.A., concurring. - 2 - ) Appeal Heard: ) October 18, 1990 ) ) Judgment Delivered: ) November 6, 1990 with costs and the decision and Nunn are set aside, awarding the of Chipman, J. A. ; Hallett and
CH I PMAN , J . A . : The appellant appeals from the decision of Mr. Justice Nunn in Chambers dismissing appellant's action for damages negligence in the design and construction of On May 17, 1967, Her Canada ( the appellant) entered respondent, C. A. Fowler, Bauld whereby the latter would design and supervise construction of headquarters building for the R.C.M.P. in Halifax (the project). On April 16, 1973, the appellant entered into a contract with the respondent, The Foundation Company of Canada Limited (Foundation) for construction of the project. summer of 1973, was substantially completed in 1975 completed in the summer of 1977. According to the appellant's completion of the project it was designed or constructed in accordance contract with Fowler and Foundation. refused to issue final certificates and retained holdback monies under its contract with Foundation. indicates that the appellant advised Foundation and Fowler of the construction deficiencies as they appeared, starting in 1976, and requested that they examine these defects. problems, which included leaking, and mortar, increased. Repairs for want of prosecution the for breach of contract and a building. Majesty the Queen in Right of into a contract with the & Mitchell Limited (Fowler) a Construction commenced in the and finally statement of claim, on apparent that it had not been with the terms of the The appel 1 ant the ref ore The appellant's affidavit As time went on, the flooding and failure of brick made from time to time were
- insufficient and in 1980 the investigation into the design and construction deficiencies which was concluded in late 1982. The affidavit on behalf received the first notice of a potential claim by way of a letter dated July 11, 1980. On September 15, 1981, the appellant wrote Fowler and Foundation advising responsible for the deficiencies items. The letter advised that a detailed study of the building completed in 1980 indicated that estimated $1.2 million to correct. appellant had been advised by Foundation were obligated to correcting the major deficiencies/design errors. requesting that within the next 30 days they institute extensive dialogue regarding the claim. ensued. On February 1, 198 2, against Fowler and Foundation statement of claim were served on June 22, 1982. On June 23, 1982, Robert Department of Justice, received written requests from counsel for Fowler and Foundation for extension which he granted. Between that time and the end of 1982 demands for particulars were delivered by Foundation, defence and a third party notice against Foundation. 2 appellant began a major of Fowler indicates that it that it considered them which included six specific deficiencies would cost an The letter continued that the legal counsel that Fowler and take positive action towards It concluded by No dialogue appears to have the appe 11 ant commenced action and the originating notice and Anderson, counsel at the of time to file defences and Fowler filed a
- 3 The affidavit filed on behalf of Shanks July 12, 1982 Foundation's counsel appellant's demand against it and its potential claim over. letter said: "Gentlemen: We represent The Foundation Company of Canada Limited and they have been sued as Defendants in a legal proceeding commenced by the Attorney General action claims that Foundation trades failed to carry out their contractual responsibi 1 i ties in a particular, the allegation Foundation and its sub-trades have failed to properly waterproof and foundation which failure flooding. For your enclosing herewith Originating Notice (Action) Claim. This is to notify presently investigating due course wi 11 be allegations made. On investigation we may commence third party against your company on behalf of our client. In anticipation of would suggest that you notify your solicitor and your insurance company as to the details of the claim and provide us with the name and address of your solicitor effect service without expense.'' As far as the record before Mr. nothing happened between the end of when counsel for the firm now delivered a notice of intention to proceed. -shows that on notified Shanks of the The of Canada. The legal and its sub-proper manner. In is made that backfi 11 around the resulted in information I am a photocopy of the and Statement of you that we are this matter and 1n responding to the the completion of our be instructed to indemnity proceedings those instructions, I so that we may incurring needless Justice Nunn reveals, 1982 and December 19, 1986 representing the appellant
- 4 The affidavit of appellant's counsel stated that Anderson's understanding was that all parties agreed that the litigation could not complete and the affidavit further stated that the defendants and other interested parties wou 1 d site as is necessary during the course of was not disputed that these respondents did not, in fact, take up this invitation. By 1985, the extensive restoration of completed and by the end of engineering consultants retained by the appellant was concluded. In all, it was alleged in the appellant spent approximately $1.7 million $500,000.00 to $700,000.00 on engineering fees. In December 1986, a notice of change of solicitors for the appellant was delivered. Following the notice of intention to proceed (December 19, 1986) advanced by either Fowler or Foundation. Throughout 198 7 pleadings supplied and Foundation commenced third party proceedings against the respondents, Tower Masonry Thompson & Sutherland Limited (T & S), Ford Glass Limited (Ford), Reid J. Shanks Limited (Shanks) Company (New Rotterdam). The first four were subcontractors of Foundation and the last was a liability insurer of Foundation. -on the application proceed until restoration was have access to the res to ration the restoration. It the project was March 1986 investigation by statement of claim that the on restorations and no objection or application was were exchanged, par ti cul ars Contractors Limited (Tower), and New Rotterdam Insurance
- In 1988, further interrogatories delivered by the appellant in March of 1988 were answered by the other parties November 4, 1988. The last was the response of Foundation, over seven months after receipt of the interrogatories. Nothing appears on November 1, 1989 when the appellant delivered its document list. The appellant's affidavit indicates that preparation of this list commenced in early 1987. Counsel approximately 11,000 pages of material. employed in the preparation of this list and it was said that counsel for all parties were subsequently offered the use of the computerized data to assist in processing the file. On November 21, 1989, counsel for all parties requesting that they provide their lists of documents and indicate examinations. Follow up correspondence produced limited response. No held. On January 5, 1990, Foundation delivered notice of its application to dismiss for want of prosecution. other respondents followed and before Mr. Justice Nunn on March 29, 1990. On the application before him, Mr. Justice Nunn had the appellant's affidavit and the record set ting out narrative. Affidavits on behalf of the respondents were chiefly 5 -pleadings were filed and between April 12, 1988 and the record during 1989 until received 124 files containing A computer program was the appellant's counsel wrote availability for discovery of December 6, 1989 discovery examinations have been Applications by the matter came on for hearing the foregoing
- to the effect that prejudice was likely to be suffered by them as a result of the long delay. Indication was given of a persons on whom they would have relied for whom were deceased, some of whom were no longer employed by the party or were otherwise not avai 1 able. that, as to those people who result f ram the difficulty they would have in recal 1 ing events now so distant in the past. Two into bankruptcy or are insolvent. On the morning of the counsel for Foundation delivered Reference was made to the plaintiff's submission that there was an agreement or understanding that litigation was to be suspended pending restoration of the building. "2. THAT in relation to myself client, there was no Subsequent to the f i 1 ing Particulars by The Canada Limited in 1982, the Plaintiff were shortly receive a Reply some other response solicitor. I received nothing. 3. THAT as a result of the lack of any response from the Plaintiff in the four years subsequent to the Demand for Particulars, came to the opinion during that time that the Plaintiff may have decided claim. Indeed, on years when communicating with The Foundation Company of Canada Limited the topic of the R.C.M.P. incidentally be raised occasions I recall advising my client that it appeared that the claim would not be pursued. 6 number of testimony, some of Concern was expressed were available, prejudice would of the third parties have gone hearing of the application, and filed an affidavit. The affidavit said in part: and my such understanding. of the Demand for Foundation Company of I anticipated that if to proceed, I would to that Demand or from the Plaintiff's I to abandon its occasion during those on other matters, Building would and on several
- 4. THAT it was with some surprise that I received notification from the Plaintiff's solicitors that they in fact had instructions to proceed. 5. THAT I Foundation Company of take no f orma 1 further pending receipt of Particulars. The requested the Demand was essential of the specifics of the Plaintiff's claim, as well as an assessment any, there might be on the part of trades and which sub-trades might involved." The demands for particulars made October 19, 1982 respectively were in fact replied to on February 11, 1987. Foll owing argument of Justice Nunn delivered a short oral decision which fills two and one-half pages. He observed that on such an application it must appear that there was an inordinate and inexcusable delay on the plaintiff's part and that such would likely preclude a fair trial or that serious prejudice was caused to the defendants. On the subject of inordinate and inexcusable delay, Mr. Justice Nunn said: "In this case, I am satisfied that there has been inordinate and inexcusable delay. delay from the time the work was completed to the present time is a period of 13 years and though the action was brought within the time fixed by limitation been a further substantial time of the bringing of the action." Mr. Justice Nunn dealt with the question of prejudice by referring to the respondents' 7 -considered that The Canada Limited should proceedings in 198 2 the Demand for information in to a determination of what liability, if any sub-have been on July 12, 1982 and counsel on March 2 9, 1990, Mr. The of actions, there has delay from the affidavit material regarding
- potential witnesses and concluded that the appellant had not met the onus of showing that there defendants. The action and the dismissed with costs against the appellants. A notice of appeal dated April 6, 1990 was given to all participating respondents and the entered on April 18, 1990. At the commencement of October 18, 1990, an application additional evidence was heard. affidavit of Robert Anderson, that counsel for Fowler and litigation could not and would not proceed until after the repair work was complete. Appended to correspondence between Anderson Foundation in 1983 and 1984. It will affidavit before Mr. Justice understanding was that of understanding of Anderson's conclusions. After hearing argument held that Anders on' s affidavit would certain correspondence would be admitted. This Court said in part: "In view of the last minute filing of the ... affidavit before Mr. March 29, 1990, and affidavit, we are of seven letters attached 8 was no prejudice to the third party proceedings were formal order for judgment was the hearing of this appeal on by the appellant to admit This evidence consisted of the touching upon his understanding Foundation agreed in 1982 that the affidavit were copies of and counsel for Fowler and be recalled that the only Nunn relating to Anderson's present counsel stating his f ram al 1 counsel, this Court not be received, but that Justice Nunn on the contents of that the opinion that the to the Anderson
- affidavit and Mr. Merrick's response in June of '83 and similar correspondence between Mr. Stewart Mcinnes, solicitor of record at that time for Fowler, Bauld authorized to be given hearing of the appeal decision dismissing the for want of prosecution. being admitted pursuant to the provisions of Rule 62.22(1). The Anderson and Mr. Stewart Mcinnes shall not be given in evidence on appeal." Rule 62.22(1) reads: "62.22 (1) The Court application of a party may on special grounds authorize evidence to on the hearing of an appeal of fact as it or he directs." The material admitted may be briefly summarized: July 12,_ 19!3_~: Foundation's counsel wrote to Tower similar to that sent to Shanks, above. June 1 , _;t_~8 3 : Anderson advised counsel for Fowler and Foundation that tenders for the restoration were invitation for their clients to send representatives to the site. The letter said in part: "As it is anticipated reveal the factors encountered with the building, provision has been made for your defendant Foundation representatives on site as the work commences and progresses. You are formally invited and encouraged to do so." 9 exchanges of Anderson and Mr. & Mitchell, are in evidence at the from Mr. Justice Nunn's appellant's action This evidence is affidavits of Mr. the hearing of the or a Judge on be given to the Court on any question and Ford a letter the text of which is set out being called and extended an that this work will causing the problems client and the coto have their own
- June_8,_ 1983: Counsel for Foundation indicated that "Until such time as the particulars are provided to us, it is not of much use to consider having a representative restoration and upgrading work." inspect and monitor the work, Foundation representatives to know was alleged to have done wrong. October 13, 1983: Anderson advised Foundation restoration had been awarded and thought that sufficient brick accomplished in two weeks to particular problem. A set of drawings would be delivered and the invitation to attend the site was repeated. October_l8,_1983: Anderson forwarded a set of drawings and specifications to Foundation's counsel. October 19, 1983: Foundation's counsel drawings and indicated that they and would be back shortly. October 28, 1983: Anderson advised Foundation that would commence on October 31st. 10 -on site to inspect the It was stated that to properly it would be necessary for what it was that Foundation that the contract for work was commencing. It was removal would have been indicate what was causing that acknowledged receipt of the would be seeking instructions removal of the walls
- Mt!Y _1 1 , 1 9 8 4 : Anderson advised Foundation's uncovering of the foundation's drainage system around the rifle range area the building was commencing. May 25, 1984: Anderson advised Foundation's removal of brickwork and referred to awaiting his advice on some matters that had been apparently discussed between them. Such was the additional evidence not before Mr. Justice Nunn which this Court has decided to take into account. On an application prosecution, a discretion is conferred upon the Chambers judge by Rule 28.13: "28 .13 Where a plaintiff proceeding down for trial, the defendant may set it down for trial, or apply to the court to dismiss the proceeding prosecution and the proceeding to be dismissed or make such order as is just." On an appeal to this Court from a discretionary order, the general rule was stated in Exco Corporation_Limited v. Scotia_ Sav~and Loan et al MacKeigan, C.J.N.S. at p. 333: "This Court is an appeal court which will not interfere with a especially an interlocutory one such as this that is now before principles of law have been applied or patent injustice would result." 11 -counsel that the counsel of further for dismissal for want of does not set a for want of court may order the Nova (1983), 59 N.S.R. (2d) 331 by discretionary order, us, unless wrong
- 12 In Nova Scotia (A~torney (1990), 96 N.S.R. (2d) 54 at p. "We should only interfere substantial injustice, very great prejudice would result if we not. The burden on an appel 1 ant seeking to set aside an interlocutory order such as this is indeed heavy." Mr. Justice Nunn correctly applied in determining whether or not to dismiss an application for want of prosecution. The subject was covered by this Court in Martell v. Robert_McAlJ)ine_ _ Ltd. Cooper, J.A. said at p. 545: "I now direct my attention to the principles which should govern the exercise of a discretion in deciding application for dismissal want of prosecution should be granted. must first have inexcusable de 1 ay on plaintiff or his lawyers put by Russell, L.J., Ltd. v. Ham & Son Ltd., 1051, at p. 1052: ' ... that such delay will give rise to a substantial not possible to of the issues in the action or is such as is 1 ikel y have caused serious the defendants ... '" This Court should not discretion exercised by a judge of first instance, especially in interlocutory matters. Such judges are dai 1 y fully familiar with, the trial process and the concerns of front 1 ine judges in making the system -Gener~lJ v. Morg~p. ta 1 er 57 Matthews, J.A. said: if serious or material injury or did stated the test to be (1978), 25 N.S.R. (2d) 540. judge's whether or not an of an action for There been inordinate and the part of the and, secondly, as in William C. Parker [1972] 3 All E.R. risk that it is have a fair trial to cause or to prejudice to in general interfere with the invo 1 ved in, and work. Further, appeals in
- 13 interlocutory matters necessarily involve additional delay. Neverthe 1 ess, when a pat en t exercise of a discretion, this Court will matter right. Without limitation, a patent injustice may appear when the judge exercising the discretion was not aware of all of the material circumstances. Another consideration is the effect of the discretionary order made. dismissing for want of prosecution, serious as it might be, still leaves open to the defendant not only the opportunity to make subsequent application to dismiss, but to gain the day at trial, perhaps because the plaintiff's passage of time. If such an plaintiff's action is terminated and the result is that what is generally termed an interlocutory application has concluded with a final order of dismissal of the proceedings. to take into account among other consequences of the order in patent injustice has resulted. the appel 1 ant of Mr. Justice Nunn' s they need not be restated. The appellant need only succeed main issues raised on this appeal. injustice resulted from the conclusion of Mr. the delay was inordinate and inexcusable. analyze events as they unfolded following the commencement of the expense and injustice results from the intervene to set the A refusal to grant an order a case has weakened with the order is granted, however, the It is appropriate things the gravity of the determining whether, overall, a In this case, the consequences to order are so obvious that on either of the two The first is whether patent Justice Nunn that It is necessary to
- 14 proceeding and particularly the action or lack of it on the part of counsel for the appellant and the respondents. reference wil 1 be made to acts or omissions parties. but it is the conduct of the client on whose behalf they acted, no doubt on instructions, that is at issue here - of counsel personally. It was not contested substantial and inordinate in the sense that it was ordinary. The focus of counsel's argument was it was inexcusable. It was recognized that the answer question was largely determinative of delay was inordinate or out of the ordinary in relation to this particular case which was complex and not ordinary. went to the excusability of the way in which the appellant's case was handled during the eight years from the commencement of the action to the application to dismiss, not disregarding the delay period from the time the cause commencement of proceedings. The overall delay of which was started very late is most periods of apparent inactivity counsel. For example, it was originating notice, once issued, was served. al 1 of this delay, if not commendable. In evaluating the delay regard may time allowed to pass before the commencement of the action; In so doing, of counsel for the not that that the delay was very out of the on whether or not to this the question whether the The argument of action arose until the some eight years in litigation unusual. There were 1 ong on the part of appellant's over four months before the On the face of it, inexcusable, is anything but be had to the Anil
- 15 Canada Limited v. Industrial-- - --E---. -s--t- -- N.S.R. (2d) 181. A plaintiff's conduct of the proceeding can also be judged to some degree defendants. Acquiescence or waiver are proper matters to be taken into account in determining the excusability of plaintiff's conduct; Albrecht et al. v. Meridian Bui! ding Group Ltd. et al.; Corpora ti_on_ of __ the __ Ci t_y __ of __ Ki t_chener et al . (third parties); R~a 1 ty ___ E~£) ora ti ans __ Ltd_. ____ et ___ al_._ parties) (1988), 27 C.P.C. (2d) Alf red __ l-1.cA_lpi_Il__e_ & __ Sons ~td.; Bo?ti c v. Group _Hospital_ _ Management Committee; Ha_l!lITlO!l_La_D-_cL~I!9_th~_!: (1968), 1 All E.R. There is no duty on a defendant to actually take positive steps to move the matter forward exhortations to the plaintiff to proceed. or absence of these actions whether the defence acquiesced in the slow tempo of litigation. I will first examine the conduct of the parties during the period from June 1982 until December 1986 as this appears to be the most critical period of before him the affidavit of the appellant's counsel that it was his "understanding" from discussions litigation would not actually be pursued during the restoration period. Mr. Justice Nunn gave conclusion that the delay was inexcusable, but in all probability -a---t--e---s- - -----L-- imited et a 1 . (1986), - 75 .. - . -· -- - -and should in the context of that of the on the part of the defence (four th 213 at p. 215; Allen v. Sir Bermondse_y_ and Southwark and Another v. 543 at p. 550, 558, 564. or to send out warnings and However, the presence may be relevant in determining delay. Mr. Justice Nunn had with Anderson that no elaborate reasons for his
- 16 he concluded that there was no such understanding. to appreciate in view of the fact that this hearsay assertion was contradicted by the unequivocal statement in the March affidavit of Foundation's counsel understanding. This affidavit continued that he anticipated that if the appe 11 ant we re to proceed, reply to the demand for particulars or some other ~e~p~nse. af f ida vi t stat es that he received nothing. in view of this lack of any response in the four years subsequent to his demand he thought the appel 1 ant claim, and he so advised his client. Fowler's affidavit simply refers to the commencement of the action in 1982 and the change of solicitor in 1986 with no details of what went on in that period. of Shanks did refer to the letter received 1982 advising of a possible action against Shanks, but giving no further particulars. The next notice proceedings were served on Shanks indicates no developments between September 29, 1987. The Ford Glass affidavit does append a letter of July 12, 1982 from communication was received by Ford until the third party papers arrived on June 9, 1987. I would expect that all of this material in support of the application to dismiss for weighed heavily on the balance his discretion. This is easy 29, 1990 that there was no such he would shortly rece1 ve a The Couns e 1 deposed that may have abandoned its The affidavit on behalf from Foundation in was when the third party 1n 1987. Tower's affidavit 1982 and June 5, copy of the demand Foundation. No further want of prosecution would have when Mr. Justice Nunn exercised
- 17 What was the reality? served 1n June 1982, Foundation were given added time to file defence in 1982 and Foundation filed its defence in 1987. On July 12, 1982 and delivered a demand for particulars. reply until February 11, 1987 but in the interim it was open to Foundation to apply under they be answered. The demands for particulars contained a notice that if particulars wer2 not delivered within respectively, an application would was never done. Next foll owed the chain admitted as evidence before us. Foundation's affidavit much indeed Both defendants were informed rehabilitation project and given an opportunity to attend at the site as work progressed. Having million, not to mention the danger Fowl er seems to have ignored thereafter to have been left out of the communications. had, according to the particulars it delivered to New Rotterdam, corresponded with the appellant about the matter in the Fall 1981. Foundation took the outstanding a demand for particulars that was not answered "there -After the originating notice was and Fowler both asked for and a defence. Fowler filed its October 19, 1982, Foundation The appellant did not file a always Rule 14. 24 for an order that ten and 14 days be made for an order. This of correspondence which was It shows that contrary to was received by Foundation. in June of 1983 of the thus been sued for over $1. 2 of prejudgment interest, this correspondence and appears Fowler of position that since it had
- 18 was not much use" to consider having What better particulars could observing the alleged defective work being dismantled, inspected and corrected? To the suggestion made particulars the expense of having justified, I suggest that a party, claim could hardly, unless insolvent, afford not to engage expert advice forthwith or have its own personnel attend on site. Incidentally, the following statement of claim of alleged failure work of workmanlike quality: " ( a ) failed to properly backfill around failure has flooding of the the 'project'; (b) failed to properly flashing and downspouting resulting in water penetration of the upper levels of the 'project'; (c) failed to properly install the windows resulting in air around the said the seals on the hermetically sealed windows and between the glazing said windows and interior surfaces of the window sills and frames; ( d) f ai 1 ed to properly exterior brick siding of the 'project' resulting in extensive failure of the mortar joints and extensive damage to the bricks." Another course of action open to Foundation would be to apply for an order for particulars, but no particulars delivered a representative on site. they receive than actually on argument that without an investigation was not having such a substantial particulars are in the by Foundation to deliver waterproof and the foundation which resulted in periodic below grade areas of install the and water leakage windows, fai 1 ure of condensation buildup surfaces of the construct the
- 19 would compare with what would expert on site. Indeed, it may be that the appellant would not, at that time have been able to deliver meaningful before the restoration was particulars which were delivered that many alleged deficiencies after the work was torn out. Notwithstanding Foundaticn's appellant did keep it informed to some degree as the balance of the correspondence shows. If Fowler and Foundation were not totally putting their heads in the sand, the only inference that can be drawn from the whole of the material, particularly the fresh evidence, is that they took no objection to the restoration was complete. The respondent third parties litigation until 1987. Their position during this period depends on the inference to be drawn from their apparent failure to pay any attention to Foundation's letter of July 12, 1982 enclosing a copy of the statement of claim. the nature and magnitude of the claim and given a would give them the opportunity to peruse and assemble documents and be in readiness. As far as the record goes, they apparently chose to do nothing, from which it can be inferred that they were content to await events, as in the case of Fowler and Foundation. A prudent business person might have assembled records and taken expert advice, faced with such substantial claim and warning. be avai 1 able to the eye of an particulars complete. A perusal of the on February 11, 1987 suggests would not be discernible until stated position, the delay and waited until the were not joined in the They were certainly informed of warning which
- 20 New Rotterdam filed no Nunn. The claim of Foundation against it relates to a policy of liability insurance 2llegedly Foundation alleges it notified New claim and New Rotterdam refused to defend it. defence alleges non-disclosure in the application for insurance. Its position appears to be one of non-involvement. I conclude therefore that it was the part of the appellant that litigation would not pLoceed until the restoration was complete. As to the third parties, they were not then parties to the action. ignore the warnings given and agreement was expressly stated, but it can be inferred from the conduct of the parties. The failure of any party to move to dismiss for more than three years after the notice of intention to proceed 1986. I find it difficult to accept that this notice to proceed came as a surprise to the defendants. Considering all the material consider the delay from February inexcusable. The delays from January 1987 on a review of the material, to lie not only with the appellant's counsel but al so with that of Foundation delayed over interrogatories, Ford nearly five -affidavit before Mr. Justice issued on February 9, 1982. Rotterdam of the appellant's New Rotterdam's a fair inference on They did, however, elect to await even ts. It is true no inference is supported by the was given in December now before us, I do not 1982 to December 1986 to be to November 1989 appear, the respondents. For example, seven months 1n answering months in doing so. New
- 21 Rotterdam was added as a third demanded particulars from Foundation, Fowler and the appellant on July 17, 1987. Fowler responded appellant on September 18, 1987 1987. New Rotterdam did not file 1988. In some instances, correspondence arrived late or it was ignored. I recognize that this was and counsel were no doubt commitments. However, t,J blame delay in this period would not be fair. the leisurely pace of this litigation. reason given by Mr. Justice Nunn for considering delay in this period of time to be inexcusable, characterize the delay as such. Overall then, it appears that Mr. have the benefit of the very material first long period of delay between second perioc, he has not singled it out or attempted to assign blame to any of the parties for the delay that occurred. been seen, the blame appears to be a shared one. said, the late commencement of the action and its slow progress t~ereafter leaves much to be desired, not correct to say that the appellant was guilty of inexcusable delay. A great injustice would dismissed at this time. -p,:nty on June . C ._ : _,,. 1987. It on September 4, 1987, the and Foundation on October 21, a defence until January 26, a matter of unusual magnitude busy with a number of other the appellant alone for such All were participants in In the absence of a clear I am not prepared to Justice Nunn did not evidence rel a ting to the 1982 and 1986. As to the As has While as I have I am satisfied that it is result if this action was
- It is not necessary issue - Mr. Justice Nunn' s finding that there the respondents. It is sufficient to say that once the nature of the delay has been fully understood, the degree of prejudice and those who suffer it are usually quite apparent. The third party respondents whether, in the absence of a notice of Foundation, this Court can revive dismissed by Mr. Justice Nunn. appeal is that the whole of inc 1 uding di smi s sa 1 of the third party proceedings from by the appellant. While the third parties argued that the appe 11 ant had no standing to appea 1 party proceedings, they were served and appeared, taking part in the appeal. I am of the opinion that we have power to set aside the entire judgment in all the circumstances. The appellant's notice of following terms: "AND that the Appellant will request that the judgment appealed discoveries be ordered Defendant and Third Parties be at liberty to make this application at a later date." I see no reason to make any order other than a reversal of the judgment. 22 -to address the second principal was prejudice to raised the question appea 1 fr om Faw 1 er and t!-ie third party proceedings A fair reading of the notice of Mr. Justice Nunn's judgment, was appea 1 ed with respect to the third appeal seeks relief in the from be reversed, forthwith, and the
- 23 -I would allow the appeal with costs and set aside the decision and order of Mr. Justice Nunn, awarding the costs of the application before him to the appellant. J. A. Concurred in: Hallett, J.A. !~ /-t l~ Matthews, J.~~C7~
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.