Bank of Montreal v. Shivakumar

2025 BCSC 1371 Bank of Montreal v. Shivakumar

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Bank of Montreal v. Shivakumar, 2025 BCSC 1371 Date: 20250605 Docket: S230172 Registry: New Westminster Between: Bank of Montreal Plaintiff And Anthony Sandeep Shivakumar also known as Anthony A. Shivakumar also known as Anthony Shivakumar Defendant Before: Associate Judge Nielsen Oral Reasons for Judgment In Chambers Counsel for the Plaintiff: G. Richards Appearing on his own behalf: A. Shivakumar Place and Date of Hearing: New Westminster, B.C. June 5, 2025 Place and Date of Judgment: New Westminster, B.C. June 5, 2025 [1] THE COURT: This is an application by the defendant to dismiss an action that was commenced on August 20, 2020, in relation to a debt accruing on a personal line of credit. The principal amount was originally $14,976.09. The defendant paid a total of $4,325 on that debt. The defendant inquired by email dated November 3, 2021, stating: Regarding my payment, can you please send me the balance of what I owe? Also, why are my payments not reflected in my credit score? [2] Counsel for the plaintiff responded the very same day, indicating that the prior counsel was no longer with the firm and stating: We will review and inform you of the balance outstanding and get back to you on your question soonest possible. [3] The plaintiff did not get back to the defendant in a timely fashion. Indeed, they did not respond

until December 16, 2024, some three years later. In that letter, they did outline the amount they were seeking and they did provide a summary of their accounting for the balance owed. In another letter dated the same date, counsel for the plaintiff also stated as follows: Before continuing with further litigation, we request your cooperation towards reaching a satisfactory resolution of this matter. Please contact us at this time with your settlement proposal. The affidavit of the plaintiff's representative indicates there was no response to that invitation. [4] The plaintiff indicates that he has undergone significant difficulty as regards to the silence on the part of the plaintiff. He has made reference to what he described as "silence by design" and "a tactical decision on the part of the plaintiff to delay" and he also submits that he has suffered significant prejudice as a result, the chief of which appears to be a negative credit score and reports. He also points to the interest that has accrued as a result of the silence of the plaintiff. [5] The plaintiff indicates that the defendant had full knowledge of the particulars by way of monthly statements sent to the defendant by the Bank of Montreal. They have attached to their affidavit a synopsis of the amounts paid and an accounting of the amounts owed. The plaintiff also indicates that the defendant, through their

response to the civil claim, admitted the principal amount of $14,976.09, and further, the response to civil claim did not dispute the amount owed, or provide any defence to the civil claim. [6] The plaintiff admits that counsel for the plaintiff inadvertently failed to respond promptly to the defendant's email of November 3, 2021, requesting an updated payout, but they also submit that the defendant did not follow up on that request, either. In regards to the Credit Bureau reporting, they attest they did not handle any Credit Bureau reporting or updating, and they further submit the defendant had the opportunity to continue paying the accounts, but simply failed to do so. [7] The parties agree that the seminal case on applications to dismiss for inexcusable delay is the B.C. Court of Appeal decision in Giacomini Consulting Canada Inc. v. The Owners, Strata Plan EPS 3173, 2023 BCCA 473. The test is set out at paras. 69 to 71 as being: first, whether the plaintiff's delay in prosecuting the action was inordinate; second, whether the delay was inexcusable; and finally, is it in the interests of justice for the action to proceed despite the existence of inordinate and inexcusable delay. At para. 71, the court further directs a consideration of the merits of the action, and consideration of whether the action is bound to fail. If so, then it is in the interests of justice to weigh

on the side of dismissal of the action. [8] In the present case, the action was commenced August 20, 2020. On November 3, 2021, the defendant asked by email what the payout was in terms of what he owed and why payments had not been reflected on his credit score. Counsel for the plaintiff replied that same day. However, there was then essentially radio silence until December 16, 2024, some three years later. In terms of the delay, I find that it is inordinate in the circumstances. [9] In terms of being inexcusable, there was a change in personnel at counsel for the plaintiff's legal representative's office. That is a criteria I can take into consideration, but the delay, frankly, in terms of providing an excuse is somewhat lacking, and I would find that the test of being inexcusable is met. [10] That, however, takes us to the final test concerning whether it is in the interests of justice for the action to proceed despite the existence of inordinate and inexcusable delay. Counsel for the plaintiff has provided a number of cases that have considered that issue. In Forgotten Treasures International Inc. v. Lloyd's Underwriters, 2025 BCSC 222, Justice Warren considers that particular issue at para. 31 and she references a number of factors the court is to address when considering if dismissal is in the interests of justice and those include: first, the absence of actual prejudice

to the defendant's ability to defend the action; second, the vagueness of the evidence of prejudice in the form of ongoing stigma to reputation; third, the length of delay and, in that case, it was three-and-a-half years; and next, the complexity of the claim and whether it needed time to investigate; then the failure of the defendants to insist on a deadline for the filing of an amended notice of civil claim or to follow up when the time had passed; and finally, she considers whether the claim is bound to fail. [11] In addressing those factors, here, first, the absence of actual prejudice or the vagueness of the evidence of prejudice, the plaintiff submits that the prejudice to the defendant here is somewhat hard to see. They submit that the defendant could have simply consented to judgment at the time the notice of civil claim was served and the response filed and, had the defendant admitted the claim, payments could have been made and the debt extinguished. Further, if the defendant had consented to judgment, the interest on the judgment would be substantially lower than the contractual interest on the personal line of credit itself. [12] In terms of the length of delay, in Forgotten Treasures, the length of delay was longer than the one we have here and the application to dismiss was ultimately denied. [13] In, Dawson v. Vancouver Coastal Health, 2025 BCSC 862, Associate

Judge Muir considered the factors from Giacomini following a seven-year delay, and ultimately, the application to dismiss for want of prosecution was also dismissed. [14] In the present case, I cannot say that the claim of the plaintiff is bound to fail. Indeed, considering the response to the notice of civil claim, I agree with the submissions of counsel for the plaintiff that, essentially, the debt is admitted, and in the response, there is no substantive defence to the claim. In all the circumstances, I also cannot say that the claim is bound to fail. Indeed, it is more likely to succeed than to fail, and I note the comments of Justice Layton in Kaur v. Residential Tenancy Branch, 2025 BCSC 473, where he states at para. 27: The power to dismiss for want of prosecution is not to be lightly exercised, as it deprives the plaintiff of an adjudication of their claim on the merits. An application to dismiss will succeed only if the court is persuaded the interests of justice justify depriving the plaintiff of their presumptive entitlement to an adjudication on the merits [15] In the present case, I find that this is not a case where it is in the interests of justice to dismiss the plaintiff's claim. The application to dismiss the claim is dismissed and I will take submissions on costs. [16] ANTHONY SHIVAKUMAR: What does "submission on costs" means? [17] THE COURT: Normally, costs

follow the event so whoever wins gets the costs of the application. Therefore, what I am asking for is submissions on whether there should be an exception to that general rule. [18] ANTHONY SHIVAKUMAR: I understand. [19] THE COURT: Mr. Richards, do you have anything to say on that? [20] CNSL G. RICHARDS: It just -- it seems to me, in the circumstances and plaintiff's counsel causing the trouble here, that the costs perhaps should not go to the plaintiff on this application. [21] THE COURT: All right. [22] ANTHONY SHIVAKUMAR: Yes. [23] THE COURT: Well, actually, he has just agreed to waive costs. [24] ANTHONY SHIVAKUMAR: Okay. [25] THE COURT: There will be no costs. Each party will bear their own costs. The matter is done, and of course, there is nothing stopping you from responding to their request for a settlement proposal. [26] ANTHONY SHIVAKUMAR: I -- I'll do that. [27] THE COURT: Okay, and -- [28] ANTHONY SHIVAKUMAR: Thank you. [29] THE COURT: -- There was silence between November 3, 2021, and December 16th of 2024, and a waiver of the interest during that period of time might be something that should be considered. We are adjourned. "Nielsen A.J."