Date: 20140930Docket: CI 07-01-54522

(Winnipeg Centre)Indexed as: Millar v. SREIT (Church) Ltd., et al

Cited as: 20L4 MBQB 198

COURT OF OUEEN'S BENCH OF ANITOBA

BETWEEN:

TREVOR KNOX MILI.AR,

-and-

SREIT (CHURCH) LTD., SUMMIT REITPROPERTY MANAGEMENT LTD., WEST HEATINDUSTRIES LTD''

defendants.

-and-

MURRAY AULD c.o.b. as QUIK-SAND and thesaid QUIK-SAND,

Karen R. PoetkerCounsel for the plaintiff,

Thomas K. ReimerCounsel for the defendantsSriet (Church) Ltd, SummitReit Propedry ManagementLtd.,

Andrew P, LoewenCounsel for the third pafi.

ntiff,lap

))))))))))))))))))))))

third pafi.JUDGMENT DELIVERED:September 30,20L4

MASTER COOPER

tll This involves motions to dismiss for delay.

l2l The plaintiff, Trevor Knox Millar, alleges that, on November 21, 2005, he

slipped and fell on ice in his employer's parking lot at 1680 Church Avenue and

broke his ankle. He was employed by the defendant West Heat Industries. The

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defendant SREIT (Church) Ltd. (.SREIT') owned the parking lot and the

defendant Summit Reit Propefi Management Ltd. ("Summit") was the property

manager. The third party Murray Auld, c,o.b. as Quik-Sand and the said Quik-

Sand ("Quik-Sand"), provided sanding services in the winter to the parking lot,

under contract with the defendant Summit. Murray Auld is the president of Auld's

Floorcraft Ltd. which carries on business as Auld's Quik-Sand.

t3l The statement of claim alleging negligence in failing to maintain the lot in

a safe condition was filed in November 2007. Some five years later, the third

party Quik-Sand, and then all the defendants, brought motions to dismiss the

claim for delay. Both liability and damages are at issue.

The Law on Dismiss for Delay Motions

l4l Queen's Bench Rule 24.01 provides that the couft may dismiss an action

for delay, and on hearing this motion, the coutt may consider:

(a) whether the plaintiff has unreasonably delayed the prosecution of the action;(b) whether there is a reasonable justification for any delay;(c) any prejudice to the defendant; and(d) any other relevant factor.

t5l The leading case is Law Society of Manitoba v. Eadíe, [1988] M.l'

No. 342 (QL), in which Twaddle J.A. set out the principles to be applied as

follows

It seems to me the fundamental principle is this: A litigant is entitled to have his

case decided on its merits unless he is responsible for undue delay which has

prejudiced the other party.

... I prefer to put all relevant considerations into a balance and decide/ as asingle question, whether it is just to take away from the litigant responsible for

the delay the right to have his case determined on its merits. This involves, of

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course, the difficult task of balancing the basic right of that litigant with the rightof the other party not to have his rights prejudiced by undue delay.

Amongst the matters which should be taken into account on amotion such as this are:

(i) the subject matter of the litigation;

(ii) the complexity of the issues between the pafties;

(iii) the length of the delay;

(iv) the explanation of the delay;

(v) the prejudice to the other litigant.

t6l This is a personal injury claim and the coufts have emphasized the need

to proceed with particular dispatch in these matters because of deterioration in

the quality of the evidence over time. In Stechkewich v. Freeth, [1991] M.J.

No. 613 (QL), Morse J. commented:

The courts in Manitoba have repeatedly stressed the need for personal injuryaccidents to be tried without undue delay, the sort of delay which has occurred

in this case. Although no specific prejudice has been established by thedefendant, there is inherent prejudice in delay, pafticularly in such a long delay

as has occurred here - see Hughes et al. v. Simpson-Sears Ltd. (1988), 54

Man.R. (2d) 5 (C.4.). There must surely be a deterioration in the quality of theevidence, not only so far as the parties are concerned but also so far as themedical evidence is concerned.

l7l The onus is on the moving party to establish unreasonable delay and

resulting prejudice lHansen v. Manitoba, U9931 M.J. No. 275 (Man. C.A.)1.

Background and Facts

t8l The following chronology summarizes the progress of this litigation.

. November 2l,2OO5: The plaintiff broke his ankle.

. April 7, 2OO6: Paul Lasko, (his lawyer throughout except for these

motions), wrote to Summit's president, advising of the plaintiff's claim for

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compensation in relation to the incident. It appears that Summit ignored

this letter.

November 2O,2OO7: The statement of claim was filed. It was serued on

West Heat, SREIT and Summit in January 2008. (The statement of claim

was commenced as a Rule 204 expedited action but all counsel agree that

it is not properly brought under Rule 204 and should proceed in the

normal course.)

January 15, 2OO8: West Heat's lawyer wrote to Mr. Lasko, and amongst

other things, he requested the plaintiff give fufther notice before noting

default. Mr. Lasko, in return, requested certain information, which was

provided by West Heat's lawyer by letter dated February 5, 2008.

Apparently Mr. Lasko did nothing in the next eleven months, nor did any

of the defendants contact him.

January 25, 2008: Harry Toews, an insurance adjuster with

Cunningham Lindsay Canada ("Cunningham Lindsay"), adjusters for SREIT

and Summit, wrote to Mr. Lasko and requested an extension of time to file

a defence so that they could conduct a proper investigation into the

matter. Apparently, Mr. Lasko did not respond. and Mr. Toews wrote to

him again on June 24, 2008 essentially with the same requests. It

appears that Mr. Lasko again did not respond, and Mr. Toews wrote to

him again on August 28, 2008. Apparently Mr. Lasko did not respond to

this letter either.

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December 2008: Mr. Lasko and Mr. Toews spoke on the telephone in

December 2008 and Mr. Lasko agreed to the extension of time as

requested. On December 22, 2008, Mr. Toews wrote to Mr. Lasko on a

without prejudice basis. It appears Mr. Lasko did not respond to this

letter.

February t2, 2009: Mr. Toews wrote Mr. Lasko again seeking a

response to the December 22, 2008 letter and requesting information

about a Workers Compensation Board claim the plaintiff had made in

relation to his injury.

March L9,2OO9: Mr. Lasko replied advising that the W.C.B. had denied

the plaintiff's claim.

March 26, 2OO9: Mr. Toews sent a without prejudice letter to Mr.

Lasko. It appears that Mr. Lasko did not reply to this letter.

August 6, 2OO9 Another adjuster for SREIT, Elaine McCracken, advised

Mr. Lasko that she had taken over the case from Mr. Toews and

requested an update on the plaintiff's injuries. It appears that Mr. Lasko

did not reply to this letter, and on November 17,2009, she wrote him

again asking for the information.

November 18, 2OO9: Mr. Lasko finally responded to Ms McCracken on

November 18, 2009, in a without prejudice communication. The adjuster

did not respond to Mr. Lasko's letter in the next five months.

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April L2, 2OLO: Another representative of the adjuster, Cheryl Hanson,

who had now taken over the file from Ms McCracken, sent a without

prejudice letter to Mr. Lasko. Subsequently, Mr. Lasko left two voice mail

messages for her to which she did not respond.

July 6, 2O1O: Mr. Lasko sent a letter to Ms Hanson in which he referred

to these voice mail messages, and warned that if the insurer did not

admit liabiliÇ within seven days that they should file their defence as he

intended to set a case conference.

August L7, 2010: Mr. Lasko received and responded to without

prejudice correspondence from Ms Hanson, dated July t7, 2010. He

wrote: "You ask for a settlement offer. Please refer to our Nov. 18, 2009

letter (copy enclosed) sent to your branch manager Harry Toews. Our

client would like a reply within 7 days from today." Apparently he received

no reply. He attempted to call Ms Hanson the next month and was told

she was no longer employed by the adjuster.

September 16, 2O1O: Mr. Lasko called the adjusters and received an

email from yet another representative of the adjuster, Lisa McCabe, who

told him he could deal with one Randy Kamino on the file. Neither the

adjuster nor Mr. Lasko appear to have done anything for the next eight

months.

May to July 2011: Mr. Lasko and Mr. Kamino spoke and the latter

requested copies of the plaintiff's medical and employment records. On

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June 13, 2011, Mr. Lasko sent Mr. Kamino a letter enclosing copies of the

income tax return information which had been requested. On June 29,

2011, Mr. Lasko sent him a copy of a report from a hospital. On July 19,

20It, Mr. Lasko called Mr. Kamino and he received an email from Mr.

Kamino in which he stated that he was reviewing the information and was

preparing a report and would be in contact once he received instructions.

September 2,2011: Mr. Kamino emailed Mr. Lasko and stated that he

did not yet have instructions and asked Mr. Lasko to call him. Mr. Kamino

emailed Mr. Lasko again on September L2,20It, asking Mr. Lasko to call

him. It does not appear that Mr. Lasko called in return.

September 2O, 2011: At some point, Summit's insurer retained

counsel, Rod Stephenson. He wrote Mr. Lasko on September 20, 20II,

advised that he had been retained and requested an extension of time to

file a defence. Mr. Lasko responded to this promptly and agreed to the

request.

October zÛt z0tt: SREIT and Summit flled a statement of defence and

a third party claim against Quik-Sand.

December !9, 2OLLt Counsel for Quik-Sand, Andrew Loewen, filed a

statement of defence to the third party claim and served Mr. Lasko shortly

thereafter.

December 2L, 2OLL Mr. Loewen wrote to Mr. Lasko requesting

information about the status of the claim and requesting production of

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various documents, including income tax returns and medical records.

Having received no reply, Mr. Loewen wrote to Mr. Lasko again on

February 2,2012.

March 7,2OL2t Mr. Lasko still had not responded and Mr. Loewen called

him and left a voice mail message seeking a response to the earlier letters

and asking him whether his client was proceeding with the claim and

inquiring as to the history of the litigation. Mr. Lasko replied the same

day, enclosing some of the plaintiff's tax returns, and noting that the

remaining information that Mr. Loewen had requested had been ordered

and that he would call him.

March 8, 2OL2z West Heat filed a statement of defence and cross-claim.

April 3, 2OL2: SREIT and Summit filed a statement of defence to the

crossclaim on April 3,2012 and seryed it the next day.

May 31, 2Ot2: Having had no fufther communication from Mr. Lasko,

Mr. Loewen called him and left a voice mail message asking Mr. Lasko to

contact him. Mr. Loewen wrote to Mr. Lasko again on June 1, 2013 and

requested that Mr. Lasko contact him regarding his client's intentions

respecting the litigation and the history of the litigation prior to the third

party claim. There was no response.

July 5, 2Ot2:. Mr. Loewen again wrote to Mr. Lasko requesting a

response and stated that, failing a timely response, he would be seeking

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his client's instructions to bring a motion to dismiss for delay. Mr. Lasko

did not respond.

. October 31, 2OL2: Quik-Sand filed its motion to dismiss for delay.

. November 29, 2OL2: SREIT and Summit filed their motion to dismiss

for delay.

. December t4,2O1,2: West Heat filed a motion to dismiss for delay.

tgl The parties attended a case conference before Saull J. on August 16,2013

and timelines for provision of affidavits of documents and scheduling discoveries

were set. The plaintiff served his affidavit of documents on September 16,2013.

t10l West Heat has not proceeded with its motion to dismiss for delay and

counsel for West Heat did not attend the hearing.

Analysis and Decision

[11] Clearly, there has been substantial delay in this matter. This is a simple

slip and fall which occurred over eight years ago, and as of the hearing of this

motion, examinations for discovery had not even been held.

l12l There is also no doubt that the plaintiff has been responsible for at least

some of this delay. Counsel for Quik-Sand identifies the following periods of

inactivity by the plaintiff:

. December 2008 to November 18, 2009, approximately eleven months.

The plaintiff's only activity appears to have been one letter on March 19,

2009.

. March 2010 to July 2010, approximately four months.

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. Mid-September 2010 to June 13, 20IL, approximately nine months. The

plaintiff's only action appears to have been one telephone call on May 5,

2011 with SREIT's insurance adjuster.

. July 20, 2011 to November L, 20L2, approximately fifteen months. The

plaintiff's only activity consisted of a two-line letter on September 22,

2011 to SREIT's lawyers and a three-line letter on March 7,2012 to Mr.

Loewen.

Summit and SREIT Motion

t13l Counsel for SREIT and Summit agrees with Mr. Loewen's summary of the

alleged delay and alleges that the length of the delay is inordinate, there is

inherent prejudice to them and there is no explanation for the delay.

lI4l He submits that this is a simple case and likens it to Wall v. Keleman,

[1995] M.J. No. 667 (QL), where Master Ring dismissed a similar slip and fall

case for delay. He commented:

11 This is not a complicated case. It is a simple slip and fall. The injuries werenot substantial. This type of case cannot take nine years to go to coutt. Mr.

Kropp, the plaintiffs second counsel, acted quickly in setting the matter down fora pretrial conference in January of 1995, but the defendant and third partieswere already prejudiced. The court will have to determine issues of credibility.The evidence in support of this motion notes that the defendant and herwitnesses have difficulÇ remembering the event that long ago and there wouldbe a difficulty in locating other tenants so long after the event in question. One

of the third parties was dissolved December 15, 1989 and the presentwhereabouts of the insurance agent who arranged the insurance on the premises

are presently unknown to the defendant.12 Steps that could have been taken by the defendant and third parties werenot taken when the inaction of the plaintiff led them to assume that the actionhad been abandoned.

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[15] The plaintiff distinguishes that case on the basis the delay was egregious:

the plaintiff did nothing for at least four years and viftually nothing for about six

years.

t16l The plaintiffs position is that he has not unreasonably delayed this matter

and contends that there has been no delay such as would justify an order to

dismiss for delay.

llTl With respect to the first period of alleged delay, December 2008 to

November 2009, counsel argues that this provided the defendants with the very

extensÌon of time that the adjuster requested to "conduct a proper investigation"

into the matter.

[18] With respect to the period between March 2010 and June 2011, the

plaintiff points out that Mr. Lasko did follow up Ms Hanson's Aprrl 12,2010 letter

to him. According to his correspondence to her dated July 6, 2010, he had left

two messages for her and had offered to have the plaintiff give them a

statement.

t19l The plaintiff asserts that in fact SREIT and Summit were responsible for

any delay during this period as in a period of less than three years, there were

four different adjusters assigned to the file and the adjuster did not even request

the plaintiff's medical and employment documents until May 2011.

[20] With respect to the period between July 2011 and November 2012, the

plaintiff submits that pleadings did not even close until April 2012.

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[21] In my view, the plaintiff has clearly been guilty of delay in this matter

from time to time. For example, there is no question that the plaintiff did not

respond to repeated requests from SREIT's adjusters for an extension of time to

file a defence. There is no question that the plaintiff did nothing to move this

matter fon¡uard for the seven months after the close of pleadings in April 2012

until the filing of the first of these motions.

l22l The plaintiff submits that the explanation for the plaintiff's lack of litigation

activity, at least prior to the close of pleadings, is that the parties were involved

in settlement discussions. Counsel argues that it is obvious from the documents

in evidence that the pafties were "actively involved in communications" in an

effoft to'reach a settlement. She notes that the SREIT and Summit defendants

have not filed any evidence attesting to the nature of these discussions nor any

evidence by any of their client's representatives. The only affidavits fìled by

them were deposed by a legal assistant.

l23l SREIT and Summit, the plaintiff asserts, condoned any delay and lulled

the plaintiff into a sense of security by representing that it was investigating the

incident. In fact, argues the plaintiff, SREIT and Summit were not actively

investigating. This is demonstrated by the fact that the third party Quik-Sand

was not even aware of the claim, as it would have been if SREIT and Summit

were seriously looking into the claim. The plaintiff had no knowledge of Quik-

Sand's involvement until the third party claim was filed.

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l24l Moreover, the plaintiff submits that a defendant cannot object to delay

where it has contributed to the delay,

t25l SREIT and Summit take the opposite view: it is the plaintiff's responsibility

to move the case forward and inactivity by the defendant does not preclude a

matter from being dismissed for delay because of the plaintiff's inaction. The

defendant quotes the comments of Master Goldberg, as she then was, in Combe

v. Sauve, [2000] M.l. No. 339 (QL):

20 The plaintiff argues that some of the responsibiliÇ for the delay rests withthe defendants. To support this, the plaintiff cites various time frames withinwhich there was no correspondence from the defendants' insurers to theplaintiffs' lawyer. This evidence does not persuade me that the defendants wereresponsible for delay. The responsibility for prosecuting these actions has always,and still does, belong to the plaintiff.

126l I note that in the Combe v. Sauve case, the evidence did not satisfy the

court that the defendants were responsible for the delay. Where the evidence

establishes that the defendant is responsible for delay, the court does consider

this to be a factor the couft can consider on a motion to dismiss for delay. In

Dino Music GmbH (Trustee oO v. Kives,2008 MBQB 228, l2008l M.J. No

326 (QL), I commented:

116 There is jurisprudence that an action should not be dismissed for delaywhere the defendant does nothing during periods of inaction, or at least thatthis is a factor that ought to be taken into account in balancing the rights ofthe pafties.In Urbanetics fnc. v. Aerotech fnternations fnc., ll989l M.J.No. 179, Wright J. refused to dismiss an action where there had been somedelay by the plaintiff, where he found the defendant had contributed to it bylulling the plaintiff into moving more slowly.

In reaching this conclusion I have noted that a pattern of delayin responding to undeftakings had already been established bythe defendant itself that may well have tended to lull theplaintiff into moving more slowly than might othen¡rise be

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expected. I am particularly influenced by the fact the defendantdid not once communicate with the plaintiff to remind theplaintiff it was awaiting the undertakings. This of course must be

considered in the context the defendant well knew that up tothe time of the July 1987 discovery the plaintiff had beenpressing to proceed with the matter. In the circumstances itseems to me the defendant ought to have written the plaintiff,at least once, to remind the plaintiff the defendant was awaitinga response to the undertakings and to warn the plaintiff it (thedefendant) was contemplating a motion to dismiss for want ofprosecution.

LL7 In Mousseau v, Gauthier, [1996] M.J. No. 13, the period of inactionwas almost six years, Master Bolton was of the view that a defendant's lulling a

plaintiff into a sense of security by condoning delay is a signifìcant factor in

denying dismissal. She said:

L2 It is unquestionably the task of the plaintiff, not thedefendant, to move litigation fonruard. However, in some cases

defendants lull plaintiffs into a sense of security with their owninaction. It is noted that after the period of delay commencing in

1988, the plaintiff appeared to be pressing the defendant forsome discussion of settlement. On two occasions Mr. Forsyth, atthat time counsel for the defendant, indicated that he could notreceive instructions from the defendant in the matter, Again, thedefendant seemed slow to respond to the plaintiff afterDecember, 1994 in having the matter set for pre-trial. In thecase of Urbanetics Inc. v. Aerotech International Inc. (1989) 59

Man.R. (2d) 306, the court found that the defendant's lulling theplaintiff into a sense of security by condoning delay was a

significant factor in denying dismissal. I fìnd that principle is

applicable here.

118 In Finlayson Enterprises Ltd. v. BDO Dunwoody Ward Mallette,[2006] O.J. No. 223, McYahon J. of the Ontario court of Justice, in dismissing amotion for delay where the plaintiff had been virtually responsible for all of thenine-year delay, but the defendant had not actively taken steps to move thelitigation fonruard, said that the defendant's inaction was a factor which mustbe taken into consideration.

l27l In the case before me, the evidence establishes that the SREIT and

Summit defendants have been respons¡ble for some of the delay in this matter.

Generally, throughout the history of this litigation, it would be fair to say that the

SREIT and Summit defendants were hardly champing at the bit, responding

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when they did respond, in a leisurely fashion. After they filed their statement of

defence in October 2011, nothing appears to have been done by them to move

this matter along, except to file their defence to West Heat's cross-claim,

However, in keeping with the general principle that it is the plaintiff's

responsibility to move the case, I would not consider this an impediment to

success on their motion.

t28l However, there are periods of time in this case when the SREIT and

Summit defendants' failure to respond is sufficiently serious that I do consider

their delay a factor to be considered.

. November 2009 to April t2, 2010: The adjusters did not respond to Mr,

Lasko's letter of November 18, 2009 until April 20L0, a period of about

five months.

. April 2010 to August 2010: The adjusters did not respond to Mr. Lasko's

attempts to communicate, a period of about four months.

. September 2010 to May 20LI: There was no activity on the paft of the

adjusters or Mr. Lasko, a period of about eight months.

I note also that while the SREIT and Summit defendants complain about the

plaintiff filing his statement of claim at the eleventh hour, Mr. Lasko first wrote to

them in April 2006. There was no response from them until January 2008, after

being served with the statement of claim, a period of over a year and a half.

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l29l The SREIT and Summit defendants have offered no explanation

whatsoever for these periods of delay. They have not shown any actual prejudice

caused by the plaintiff's delay.

i30l Considering the factors usually considered in these cases as outlined

above, I am not persuaded that the claim against SREIT and Summit should be

dismissed for delay. While this is a personal injury case, it is not complex. It is a

typical slip and fall. The plaintiff was apparently back to work by November

2009. While there have been no discoveries, the medical information and

income information have been provided some time ago. The SREIT and Summit

defendants do not allege actual prejudice and it is difficult to see inherent

prejudice as being decisive. There apparently were no witnesses to the actual

incident. The SREIT and Summit defendants have played a paft in the delay that

has occurred. All in all, weighing all the factors in the balance, it is my view that

the plaintiff should have his day in couft against these defendants.

Third Pafi's Motion

t31l Quik-Sand's motion requests that the plaintiff's action as a whole be

dismissed for delay. In its supplementary motion brief and at the hearing, Mr.

Loewen argued alternatively that the third party claim should be dismissed for

delay.

t32l The plaintiff naturally opposes the motion to dismiss the claim on the

same basis as outlined above, with the obvious exception that the plaintiff does

not allege that the third party was responsible for any delay.

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t33l The SREIT and Summit defendants are opposed to the alternative relief

sought that the third party claim should be dismissed. SREIT and Summit point

out that Quik-Sand's motion requests an order dismissing the claim for delay by

the plaintiff. It does not request dismissal of the third pafty claim. Quik-Sand did

not request dismissal of the third party claim until it filed its supplementary brief.

i34l I do not regard the fact that Quik-Sand's notice of motion does not

specifìcally ask for dismissal of the third pafi claim as fatal. It does contain a

general request for other relief. More importantly, the SREIT and Summit

defendants had ample notice that the third party would be taking this position

and had full opportunity to argue against it which they did both in a

supplementary motion brief and at the hearing.

t35l The SREIT and Summit defendants do not allege any delay by Quik-Sand

after service of the claim. Quik-Sand very clearly acted expeditiously after being

served with the third party claim. Quik-Sand's first position is that it does not

specifically allege any delay by the defendants: it pins all the blame on the

plaintiff. Alternatively, Quik-Sand argues that if I find that the SREIT and

Summit defendants contributed to the delay such that it deprived them of the

remedy of dismissal (as I do), then Quik-Sand says their contribution to the

delay should be a factor in dismissing the third party claim.

t36l The SREIT and Summit defendants argue that I cannot dismiss the claim

against the third party for delay while not dismissing the claim against SREIT and

Summit for delay.

1B

l37l SREIT and Summit note that Rule 29 provides that a defendant can

commence a third party claim at any time before the defendant is noted in

default.

29.02(I) A third pafi claim (Form 29A) shall be issued,

(a) within 10 days after the time prescribed by rule 18.01 for fìling and

serving the statement of defence in the main action or at any time before

the defendant is noted in default; or(b) subsequently with leave of the coutt.

t38l Section 2(2) of The Limitation of Actions Act C.C.S.M. 1150 provides that

the time limitations for actions for injuries to the person or to property are not a

bar to third-pafi proceedings.

2(2) Where an action is brought for injuries to the person or for injuries toproperty within the time limited by this Act or any other Act of the Legislature

and third party proceedings are instituted, or a counter-claim is made in respect

of damages caused in the same accident, the lapse of time limited by this Act orany other Act of the Legislature is not a bar to the third party proceedings or to a

counter-claim by the defendant or third pafi.

t39l SREIT and Summit argue that Section t7 of The Limitation of Actions Act

sets out a limitation period for third party claims. Section 17, they submit,

permits a defendant to commence a third party claim within two years of the

date that judgment against the defendant is granted or within two years of the

date that the defendant makes payment to the plaintiff in respect of a settlement

where liability for the plaintiff's action is acknowledged. It reads:

I7(L) Where, under The Tortfeasors and Contributory Negligence Act, a

tortfeasor (in this section referred to as "the first tortfeasor") becomes entitled toa right to recover contribution in respect of any damage from another tortfeasor

(a) no action to recover contribution by viftue of that right shall be

begun;(b) the couft shall not grant leave to begin an action to recover

contribution by virtue of that right; and

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(c) the cout shall not grant leave to continue an action to recovercontribution by virtue of that right that was begun;

after the end of the period of two years from the date on which that rightaccrued to the first tortfêasor,

L7(2) For the purposes of this section,(a) where the first tortfeasor is held liable in respect of the damage by a

judgment given in any civil proceeding, or an award made on anyarbitration, the date on which a right to recover contribution in respect ofthe damage is the date on which the judgment is given, or the date ofthe award, as the case may be; and(b) where, in a case not falling within clause (a), the tortfeasor admitsliability in favour of one or more persons in respect of the damage, thedate on which a right to recover contribution in respect of the damageaccrues to the first tortfeasor is the earliest date on which the amount tobe paid by the first tortfeasor in discharge of that liability is agreed by, oron behalf of, the fìrst tortfeasor and that person, or each of thosepersons, as the case may be.

[40] SREIT and Summit submit that they commenced the third party claim well

within the limitation period and that Rule 24 only applies to delays occurring

after the commencement of the litigation at issue, in this case the third pafi

claim. They submit that a third party claim is not an action under the rules until

the third party claim is filed and accordingly the only relevant period the coutt

can consider with respect to delay is the time after the filing of the third paty

claim. Since, they say, there is no allegation that SREIT and Summit were guilÇ

of any delay in that period, there is no basis to dismiss the claim against the

third party.

[41] Quik-Sand concedes that the defendants SREIT and Summit commenced

the third party claim within the time limits specified in sections 2(2) and 17 of

The Limitation of Actions Act. However, counsel argues that meeting a limitation

period does not insulate a party from compliance with the rules in respect of

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delay. Rule 24.04 provides that rule 24.01 (dismissing an action for delay)

applies with necessary modifications to third parfy claims.

24.04 Rules 24.0I and 24.03 apply, with necessary modifications, tocounterclaims, crossclaims and third pafi claims.

l42l Fufther, section 59 of The Limitation of Actions ,4cf provides that

equitable relief is still available despite compliance with a limitation period.

59 Nothing in this Act interferes with any rule of equiÇ in refusing relief on

the ground of acquiescence, or othenrrise, to any person whose right to bring an

action is not barred by viftue of this Act,

l43l I am not persuaded that the rules or the act can be so ¡nterpreted, as

SREIT and Summit contend, to mean in effect that technical compliance with a

limitation period by a defendant is sufficient to immunize the defendant from any

liability for delay prior to the filing of the third pafty claim. Neither party was

able to provide me with any jurisprudence on point. Quik-Sand referred to

Rivergate Properties fnc. v. West St. Paul (Rural Municípalíty), 2006

MBCA, [2006] M.J. No 281 (QL), in which Hamilton J.A. was of the view that

equitable defences, including laches, are available even though a limitation

period has not expired. She commented:

4I Section 59 of the l-AA speaks to the continued applicability of equitableprinciples where a limitation period has not expired. That is, all equitabledefences are available to defendants regardless of the presence of a prescribed

limitation period. In my view, the words "acquiescence, or othenruise,"

encompass all equitable defences, including laches. My conclusion is founded inthe decisions of the Supreme Courtof Canada in M,(K) v. M.(H.), ll992l3 S.C.R.

6. and Wewaykum Indian Band v, Canada. 1200214 S.C.R. 245,2002 SCC 79.42 In commenting on the effect of s. 2 of the Ontario Limitations Act (which

is identical to s. 59), La Forest J. stated in M. (K.) (at p. 70):This section makes clear that the Act does not exhaust the defencesavailable to a defendant because of the passage of time. Thus, certainactions expressly made subject to the Limitations Act may not yet be out

2T

of time under the terms of that statute, but may be precluded by

equitable defences that apply notwithstanding the terms of the Act.

l44l I would say that the same logic applies to motions to dismiss for delay

under the rules, where a limitation period has not expired. The interpretation

that the SREIT and Summit defendants advance would permit a defendant to do

nothing to bring a matter fon¡uard for years, even though it had full knowledge of

the facts underlying a third party claim, to the prejudice of the third pafi. It

would deprive a third party of the normal protection afforded to a defendant. It

does not make sense to me that the Act and the rules should be interpreted to

require the plaintiff to proceed with all due dispatch once it has knowledge of a

claim, but not to require a defendant to proceed in the same way with its claim

against a third party once it has knowledge of its claim against the third party. It

would be unfair to allow a defendant to bide its time waiting for a dilatory

plaintiff to hang itself for delay, while not being subject to the same restraints

itself in relation to any third parties. It seems to me that the limitation periods

applicable to third party claims recognize that a defendant may not have

sufficient knowledge to advance a third party claim until the main proceedings

are in an advanced stage or even concluded.

t45l Quik-Sand submits that the delay that has occurred, and for which the

defendants SREIT and Summit are partially responsible, has created both real

and inherent prejudice. Quik-Sand says it did not even know of the claim against

it until some six years after the incident when it was served with the third party

claim.

22

t46l In his affidavit in support of his motion to dismiss for delay, Mr. Auld

stated that the third party claim was the first he knew about the incident and any

claim that his business was responsible for it. He said he immediately advised his

insurer and shortly after counsel was retained on his behalf.

l47l However, counsel for SREIT and Summit argues that the third patty was

aware of the claim long before that. He filed an affidavit of another Cunningham

Lindsey adjuster in which she stated their files show that on December 3, 2008,

Mr. Toews sent a fax to Auld's Quicksand in which he advised that a real estate

firm was being sued in relation to the accident and asked them to confirm the

maintenance done on the lot. In the fax, he said:

This will fufther today's phone conversation. Please be advised ING Real Estate

is being sued for slip and fall, which occurred on November 2L, 2005, at 1680

Church Avenue. According to our phone conversation, you carry the

Maintenance Records for their property and we would ask if you can confirm the

maintenance competed within a few days leading up to and including on

November 2I,2005.

[48] The files also contained a copy of the same fax, apparently returned in

reply, on which someone has written: "Lot was sanded on the Nov 16/17121129

Call me with any other concerns".

l49l Mr. Auld responded, in a supplementary affìdavit, that he had had no

recollection of these fax communications nor of a telephone call from Harry

Toews in December 2008 or at any time. He states:

Had I been informed by Mr. Toews, either in his facsimile or in the telephone call

referred to in his facsimile (if a telephone call did occur), that either I or Auld's

Floorcraft Ltd. were at risk of being sued, I would have immediately reported the

matter to my insurance comPanY.

23

He says that he did not report it nor take any other steps in relation to the

matter.

t50l In my view, a communication of this nature did not constitute notice to

Quik-Sand of any claim against it. It might raise the antennae of a lawyer, but

one could not reasonably expect the average lay person to know this presaged a

legal suit against him. While, as counsel for SREIT and Summit submits, there is

no rule that a defendant has an obligation to put a third party on notice of a

third pafi claim, the defendant who has knowledge of a potential third party

claim and does nothing puts itself at its own peril in respect of a later motion to

dismiss for delay.

[51] Quik-Sand argues that it has suffered specific prejudice because of the

delay. The only evidence in this regard consists of Mr. Auld's allegations that it

will now be difficult, if not impossible, to obtain evidence of the condition of the

parking lot at the time of the accident. While Mr. Auld was not cross-examined,

this evidence is thin. For example, he does not say that he cannot identiñ7 the

employee who sanded the lot, or that employee is no longer with him or is

unavailable, or that he has searched his records and has no record of the

service.

t52l I am persuaded that the third party has suffered signifìcant inherent

prejudice because of the length of the delay to which the defendants have

contributed. The length of the delay as it relates to the third party essentially

encompasses the entire time from the time of service of the statement of claim

24

on the defendants to the filing of their motion. I note that although Quik-Sand

in its primary position did not allege delay by the defendants SREIT and Summit,

Mr. Auld in his affìdavit does note that his counsel made "several enquiries

directed to counsel" for SREIT and Summit, and "has received no explanation as

to what, if anything, transpired in the litigation between November 20,2007 and

October 20, 20It and no explanation of the reason for the delay in issuing the

third pafi claim". This assertion was not challenged by SREIT and Summit.

t53l I am satisfied that the third party claim should be dismissed for delay, and

I order accordingly. The parties may speak to me regarding costs if they cannot

agree.

')t,

perJ.MM