Dubois v. Manitoba Lotteries Corp. et al., (2009) 251 Man.R.(2d) 5 (CA)

• Judge: Steel, Chartier and MacInnes, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: September 10, 2009
• Jurisdiction: Manitoba
• Citations: (2009), 251 Man.R.(2d) 5 (CA);2009 MBCA 108

Dubois v. Lotteries Corp. (2009), 251 Man.R.(2d) 5 (CA);

      478 W.A.C. 5

MLB headnote and full text

Temp. Cite: [2009] Man.R.(2d) TBEd. NO.006

Darius Dubois (plaintiff/respondent) v. The Manitoba Lotteries Corporation, carrying on business under the trade name of Club Regent, and the said Club Regent (defendants/appellants)

(AI 09-30-07122; 2009 MBCA 108)

Indexed As: Dubois v. Manitoba Lotteries Corp. et al.

Manitoba Court of Appeal

Steel, Chartier and MacInnes, JJ.A.

November 3, 2009.

Summary:

On November 15, 1995, the plaintiff became involved in an incident with the employees of one of defendants. On March 27, 1996, the plaintiff issued a statement of claim seeking damages for personal injuries. On June 1, 2005, the defendants filed a motion to have the action dismissed for delay.

A Master of the Manitoba Court of Queen's Bench dismissed the motion on March 29, 2006. The order respecting that motion was not filed until March 20, 2008. The defendants appealed.

The Manitoba Court of Queen's Bench dismissed the appeal. The defendants appealed.

The Manitoba Court of Appeal held that the Court of Queen's Bench erred in not turning its mind to the issue of prejudice in respect of the damage claim, but dismissed the appeal where essential justice required that the action be allowed to continue.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - The Manitoba Court of Appeal stated that "Motions to dismiss for delay are numerous, but the judicial outcomes are greatly mixed. That is because the legal principles which govern their disposition, while clear enough in their enunciation, are difficult in their application because their application is highly fact-driven. In my opinion, that is as it should be, given, as we will see, that the overriding principle is that essential justice be done between the parties." - See paragraph 18.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - On a motion to dismiss an action for delay, the defendants asserted that, litigation being adversarial in nature, the onus was on the plaintiff to move the action along and the defendant did not have any such obligation and could not be faulted for failing to move an action along - The Manitoba Court of Appeal disagreed - There was no question that the plaintiff carried the onus of prosecuting the claim without delay - However, a defendant, if it wished, could take steps to bring a claim to speedy conclusion - When it did not do so, it ran the risk ultimately of finding that on a subsequent motion for dismissal for delay, the balancing required might result in the motion's dismissal, with the plaintiff being entitled to continue with the action - See paragraph 37.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - On March 27, 1996, the plaintiff issued a statement of claim seeking damages for personal injuries suffered on November 15, 1995 - In July 2002, the defendants advised of their intention to move for dismissal of the action for delay - The motion did not proceed - On June 1, 2005, the defendants moved for dismissal for delay - A Master dismissed the motion on March 29, 2006 - The order was not filed until March 20, 2008, at which point the defendants appealed - A motions judge dismissed the appeal, concluding that plaintiff had provided a reasonable justification for the delay after November 2001, there was no evidence of actual prejudice and the inherent prejudice based on the passage of time was insufficient to deprive the plaintiff of a hearing on the merits - The Manitoba Court of Appeal held that the motions judge erred by only considering the question of prejudice as it related to the issue of liability - She should have also addressed the prejudice to the defendants' ability to defend the plaintiff's damage claim - There was also the additional element of the prejudice inherent in delay in a personal injury action - In addressing the prejudice respecting the damage claim, the court considered that (1) the plaintiff spoke little English and lived in a remote location in northwestern Ontario; (2) he was away from his home in excess of 250 days a year in extremely isolated locations where communication was difficult; (3) he required French speaking counsel, which were not in abundance - He had retained several, whose services were lost due to circumstances beyond his control - Court documents invariably required translation; and (4) numerous medical reports had been provided to the defendants - However, there was no evidence to support the claim for prejudice - The medical reports and records were not included in the record of appeal nor was there any evidence indicating their content or nature - Any prejudice would have to be categorized as inherent prejudice - In 2002, the defendants chose not to proceed with this motion for dismissal - The action's embarrassing slow pace was as much the defendants' fault as it was the plaintiffs' fault - The court dismissed the appeal where essential justice required that the action be allowed to continue.

Practice - Topic 5362

Dismissal of action - Grounds - General and want of prosecution - Prejudice to defendant - [See third Practice - Topic 5360 ].

Practice - Topic 5362.1

Dismissal of action - Grounds - General and want of prosecution - Inference of prejudice (incl. rebuttal of) - [See third Practice - Topic 5360 ].

Practice - Topic 5390.2

Dismissal of action - Application or motion for dismissal - Evidence and proof - [See third Practice - Topic 5360 ].

Practice - Topic 5398

Dismissal of action - Order of dismissal - Appeal or application to set aside - A motions judge confirmed a Master's dismissal of the defendants' motion to dismiss an action for delay - The defendants appealed - The Manitoba Court of Appeal stated that "This case is one involving the exercise of the motions judge's discretion. Hence, this court ought to intervene only if the judge has acted on the basis of a wrong legal principle or the decision is so clearly wrong as to amount to an injustice." - See paragraph 16.

Practice - Topic 8804

Appeals - General principles - Duty of appellate court regarding discretionary orders - [See Practice - Topic 5398 ].

Cases Noticed:

Elsom v. Elsom, [1989] 1 S.C.R. 1367; 96 N.R. 165, refd to. [para. 16].

Ross v. Crown Fuel Co. (1962), 41 W.W.R.(N.S.) 65; 37 D.L.R.(2d) 30 (Man. C.A.), refd to. [para. 19].

Law Society of Manitoba v. Eadie (1988), 54 Man.R.(2d) 1 (C.A.), refd to. [para. 20].

Hughes and Hughes v. Simpson-Sears Ltd. (1988), 54 Man.R.(2d) 5 (C.A.), refd to. [para. 21].

Pankhurst v. Matz et al. (1991), 71 Man.R.(2d) 271 (C.A.), refd to. [para. 22].

United Kingdom (Department of Transport) v. Smaller (Chris) (Transport) Ltd., [1989] 2 W.L.R. 578; 103 N.R. 134; [1989] 1 All E.R. 897 (H.L.), refd to. [para. 22].

Department of Transport v. Chris Smaller (Transport) Ltd. - see United Kingdom (Department of Transport) v. Smaller (Chris) (Transport) Ltd.

Mauer v. McDougall et al. (2001), 153 Man.R.(2d) 259; 238 W.A.C. 259; 2001 MBCA 2, refd to. [para. 24].

North v. Boschman (2009), 242 Man.R.(2d) 88; 2009 MBQB 176, refd to. [para. 30].

Counsel:

G.A. Stefanson, for the appellants;

M.J. Clark, for the respondent.

This appeal was on September 10, 2009, by Steel, Chartier and MacInnes, JJ.A., of the Manitoba Court of Appeal. MacInnes, J.A., delivered the following judgment for the court on November 3, 2009.