Digest: Czerwonka v Montmartre (Rural Municipality No. 126), 2018 SKQB 202

Date:July 18, 2018

Reported as: 2018 SKQB 202

Docket Number: QB17587 , QBG 1417/12 JCR

Court: Court of Queen's Bench

Date: 2018-07-18

Judges:

  • Barrington-Foote

Subjects:

  • Civil Procedure � Queen�s Bench Rule 4-44

Digest: The defendant, the Rural Municipality of Montmartre, applied for an order pursuant to Queen�s Bench rule 4-44 to dismiss the plaintiff�s action. The action was commenced in August 2012 and claimed damages of $500,000 resulting from flooding of the plaintiff�s land caused by the construction of a trench by the defendant in a manner that breached a verbal contract between the parties. Mandatory mediation occurred in April 2013 and no further steps were taken until March 2018 when the defendant served its affidavit of documents followed by this application in May. The plaintiff served his affidavit of documents two weeks after receipt of the defendant�s. Between 2013 and 2017, the defendant�s counsel emailed the plaintiff�s counsel seven times about moving the action forward. The plaintiff�s lawyer responded twice by email and once by telephone call. He failed to respond on four occasions. The plaintiff conceded that the delay was inordinate but that there were a number of reasons that caused the delay, including the death of his spouse in September 2014. He explained that he is the sole operator of a large ranching operation and had had to spend a lot of time and resources on other legal matters. He had sent his documents to his lawyer in 2015 and early 2016 but it was not until January 2017 that he learned that his lawyer had misplaced some of the documents. His lawyer stated that he had not pressed his client for his documents because of his spouse�s death. Later, when he discovered that documents had been misplaced, he decided to wait for them to show up and did not ask the plaintiff to get new copies.
HELD: The application was denied. The court found that the delay was inordinate and inexcusable. The death of the plaintiff�s spouse would excuse less than a year of delay. His responsibility in running his ranch and his choice to prioritize other claims did not assist him in
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