Digest: Stilborn v SaskPower, 2018 SKCA 97

• Date: November 22, 2018

Reported as: 2018 SKCA 97

Docket Number: CA18095 , CACV 3047

Court: Court of Appeal

Date: 2018-11-22

Judges:

• Richards
• Ottenbreit
• Schwann

Subjects:

• Civil Procedure � Application for Dismissal of Action � Want of Prosecution
• Civil Procedure � Queen�s Bench Rules, Rule 4-44

Digest: The appellants commenced an action against the respondent in May 2007 originally claiming $59,858.25 for loss of equipment, poultry chicks, and clean-up after the respondent power provider shut off the power supply to their farming operation. Later in 2007, the appellants changed legal counsel and amended their claim to increase the damages sought to more than $350,000. In 2009, the appellants became self-represented. There was nothing done on the file from 2009 to 2013. In August 2013, the respondent�s legal counsel wrote to the appellants inquiring about the litigation. The appellants did not respond. In 2016, the appellants retained new counsel who sought to proceed with the litigation. The respondent successfully applied pursuant to Rule 4-44 of The Queen�s Bench Rules to dismiss the action for want of prosecution. The appellants argued that: 1) in considering whether the delay was inordinate the chambers judge erred in her calculation of time by failing to consider certain items; 2) in the second stage of the analysis, the chambers judge erred by failing to give sufficient weight and consideration to the other lawsuits brought by them following the commencement of the action against the respondent; and 3) the chambers judge made two errors at the third stage of the analysis: (a) a material fact was overlooked because the chambers judge erred by failing to consider the obvious merit of their claim and the respondent�s admission of liability; and (b) the respondent did not make much effort to locate witnesses and then indicated to the chambers court that the witnesses were unavailable.
HELD: The appeal was dismissed. The appeal court had to consider the appeal with deference to the chambers judge given the decision to dismiss for want of prosecution is discretionary in nature. The chambers judge identified the applicable law, the ICC analysis. The appellants� arguments were considered as follows: 1) the appellants� argument that the chambers judge erred in her calculation of time to determine that the delay was inordinate was not successful. The test requires consideration of the time the plaintiff has taken to get the litigation to...