North v. Boschman, 2009 MBQB 176

• Judge: Simonsen, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: June 25, 2009
• Jurisdiction: Manitoba
• Citations: 2009 MBQB 176;(2009), 242 Man.R.(2d) 88 (QB)

North v. Boschman (2009), 242 Man.R.(2d) 88 (QB)

MLB headnote and full text

Temp. Cite: [2009] Man.R.(2d) TBEd. JL.034

Timothy Ronald North (appellant/plaintiff) v. Leonard Randall Boschman (respondent/defendant)

(CI 09-01-60041; 2009 MBQB 176)

Indexed As: North v. Boschman

Manitoba Court of Queen's Bench

Winnipeg Centre

Simonsen, J.

June 25, 2009.

Summary:

In June 1997, North sued Boschman, alleging that Boschman's snowmobile struck North's snowmobile from behind, causing North to suffer injuries.

A Master of the Manitoba Court of Queen's Bench, in a decision not reported in this series of reports, granted Boschman's third motion to dismiss the action for delay. North appealed.

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

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - In June 1997, North sued Boschman, alleging that Boschman's snowmobile struck North's snowmobile from behind, causing North to suffer injuries - Boschman denied that there had been a collision - In May 2008, a Master granted Boschman's motion to dismiss the action for delay - The Manitoba Court of Queen's Bench dismissed North's appeal - The delay was unreasonable - The accident occurred in 1996 - Pleadings had been filed and discoveries conducted by 1998 - By 2000, North was apparently ready to proceed - Nine years had passed and no concrete steps had been taken - Further, there had been lengthy periods of no communication from North's counsel - North's personal circumstances, including contested marital proceedings, a new relationship, children and health problems, did not justify the delay - Even if the delay resulted from North's lawyer not taking reasonable steps or from North's reliance on the lawyer's advice regarding the next steps, North was nonetheless responsible - Further, any explanation for the delay had to be considered in the context of prejudice - Regarding liability, significant inherent prejudice to Boschman arose from the effect of the passage of time on the parties' memories - Regarding damages, significant inherent prejudice to Boschman arose from North's failure to provide medical information from 1999 to 2008 or any indication as to North's physical status from at least 2001 to the present - Boschman could not properly defend himself on the assessment of damages - See paragraphs 28 to 38.

Practice - Topic 5360.1

Dismissal of action - Grounds - General and want of prosecution - Excuse for delay - [See Practice - Topic 5360 ].

Practice - Topic 5362

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

Cases Noticed:

Fegol v. National Post Co. et al. (2007), 212 Man.R.(2d) 294; 389 W.A.C. 294; 2007 MBCA 27, refd to. [para. 25].

Law Society of Manitoba v. Eadie (1988), 54 Man.R.(2d) 1 (C.A.), refd to. [para. 25].

Mauer v. McDougall et al. (2001), 153 Man.R.(2d) 259; 238 W.A.C. 259; 2001 MBCA 2, refd to. [para. 26].

Pankhurst v. Matz et al. (1991), 71 Man.R.(2d) 271 (C.A.), refd to. [para. 26].

White v. Brown et al. (2000), 149 Man.R.(2d) 226; 2000 MBQB 128, affd. (2001), 160 Man.R.(2d) 320; 262 W.A.C. 320; 2001 MBCA 204, refd to. [para. 27].

Antony v. Manitoba Public Insurance Corp. et al. (2000), 151 Man.R.(2d) 101 (Q.B.), affd. (2001), 156 Man.R.(2d) 221; 246 W.A.C. 221; 2001 MBCA 115, refd to. [para. 27].

Workers' Compensation Board (Man.) et al. v. Tostowaryk (2004), 189 Man.R.(2d) 108; 2004 MBQB 263 (Master), refd to. [para. 27].

Waterman v. Vanrobaeys (1992), 84 Man.R.(2d) 77 (Q.B.), refd to. [para. 31].

Counsel:

Ellery G. Strell, for the appellant/plaintiff;

Dianne Pemkowski, for the respondent/defendant.

This appeal was heard by Simonsen, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on June 25, 2009.