Mao v. Bazuaye

2025 BCSC 1188 Mao v. Bazuaye

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Mao v. Bazuaye, 2025 BCSC 1188 Date: 20250630 Docket:M129644 Registry: New Westminster Between: Chunghong Mao Plaintiff And Francis Osaze Bazuaye also known as Francis O Bazuaye also known as Francis Bazuaye Defendant Before: The Honourable Justice Norell Reasons for Judgment Counsel for Plaintiff: D. O'Neill Counsel for Defendant: B. Carpenter Place and Date of Hearing: New Westminster, B.C. April 25, 2025 Place and Date of Judgment: New Westminster, B.C. June 30, 2025 Overview [1] The defendant applies for an order that this personal injury action be dismissed for want of prosecution. The plaintiff opposes. The action concerns a pedestrian-vehicle incident that took place in 2009. [2] For the reasons that follow, I grant the application. Legal Framework [3] Rule 22-7(7) of the Supreme Court Civil Rules [SCCR], permits the Court to dismiss a claim for want of prosecution. The Rule states: (7) If, on application by a party, it appears to the court that there is want of prosecution in a proceeding, the court may order that the proceeding be dismissed. [4] The test for dismissal for want of prosecution in a civil action has recently been revised. In Giacomini Consulting Canada Inc. v. The Owners, Strata Plan EPS 3171, 2023 BCCA 473 [Giacomini], the Court concluded that the previous test did not permit a "full and flexible consideration of the impact of inordinate and inexcusable delay on the interests of justice": at para.

54. Serious prejudice to the defendant arising from delay is no longer "a discrete element of the test, but rather a factor to consider at the interests of justice stage of the analysis": at para.

68. While the plaintiff's interest in an adjudication on the merits is still a factor "deserving of considerable weight", the reformulated test recognizes that "litigation delay impacts the public interest in a justice system that promotes the timely and cost-effective resolution of legal disputes": at para.

51. The new test is "intended to provide more nuanced balancing of the competing considerations of the interests of defendants, and the justice system as a whole". An application "will succeed only if the court is persuaded that the interests of justice justify depriving the plaintiff of their presumptive entitlement to an adjudication on the merits": at para. 75. [5] The revised test, summarized at paras. 69 to 76 of Giacomini, is: (1) Has the defendant established that the plaintiff's delay in prosecuting the action is inordinate? (2) Is the delay inexcusable? (3) If both questions (1) and (2) are answered in the affirmative, is it in the interests of justice for the action to proceed despite the existence of inordinate and inexcusable delay? [6] A list of non-exhaustive factors relevant to the third question are: a) the prejudice the defendant will suffer defending the case at trial; b) the length of the delay; c) the stage of the litigation; d) the impact of the delay on the defendant's professional, business, or personal interests; e) the context in which the delay occurred, in particular whether the plaintiff delayed in the face of pressure by the defendant to proceed; f) the reasons offered for the delay; g) the role of counsel in causing the delay; h) the public interest in having cases that are of genuine public importance heard on their merits; and i) the merits of

the action - this is not a searching examination of the merits, but a consideration of whether the action is bound to fail: Giacomini at paras. 66 and 71. [7] As summarized in Giacomini: [72] Under this framework of analysis, the prejudice to the defendant's ability to defend the action remains a relevant, and indeed important consideration. However, prejudice to the defendant is not a pre-requisite to an order dismissing a claim for want of prosecution. At the interests of justice stage, the court should look to all relevant circumstances rather than prioritizing the impact of delay on trial fairness. Allegations in Action [8] This action arises out of an incident that took place on April 8, 2009, outside a childcare facility in Coquitlam, BC. In a written statement provided in early May 2009, the plaintiff states that the defendant was parked in an area where parents of children had been asked not to park. The plaintiff, her two-and-a-half-year-old daughter, and the defendant exited the day care at the same time. When she and her daughter got to the rear of the defendant's vehicle - a Hummer with California plates (the "Hummer") - her daughter stumbled and fell forward. She bent over to pick her up off the ground. She did not hear the engine of the Hummer. After she was already standing up again, she felt an impact to her hip and lower back area. The impact caused her to fall

forward onto her knees and hands. Her daughter was underneath her. She gathered from others present that the Hummer had reversed between one half to one car length before it hit her. [9] The defendant denies that his vehicle hit the plaintiff or her daughter. In his response to civil claim, he pleads that he entered his vehicle and checked the rear-view and side-view mirrors before starting the engine. As he engaged the reverse gear and was starting to move backward, he noticed some passers-by gesturing to him. HIs vehicle had "not moved beyond a foot if at all". The defendant immediately stopped his vehicle, turned off the engine and got out. He went to the back of his vehicle and saw the plaintiff and a child behind it. He gathered from the passers-by that upon hearing the defendant's vehicle starting, the plaintiff had panicked and had knelt down to protect the child, who was playing at the back of the vehicle. The defendant gathered that no collision had taken place at all between the vehicle and the plaintiff. The defendant also pleads negligence on the part of the plaintiff in failing to keep away from his vehicle, allowing her child to play at the rear of his vehicle, failing to remove herself and her child from the rear of his vehicle upon hearing the plaintiff start the engine of his vehicle, and failing to take reasonable steps or any precautions to avoid being at the

rear of his vehicle. [10] An ambulance crew and the police attended the scene of the incident. The plaintiff and her daughter attended Eagle Ridge Hospital. The plaintiff's physical injuries included pain, bruising, and scrapes. Her daughter suffered a fractured leg. [11] The daughter turns 19 years old later this year. An action has not yet been commenced by her, however the plaintiff's counsel states it is probable that an action will be commenced. Procedural History [12] In August 2010, the plaintiff's counsel filed the notice of civil claim. [13] In January 2011, the defendant was personally served, and the same month, the defendant filed a response to civil claim as a self-represented litigant. [14] The first set of activity, for two years, concerned disclosure of documents. In February 2011, plaintiff's counsel served the plaintiff's list of documents and a notice to produce. The defendant did not produce a list of documents. Nearly a year later, in January 2012, plaintiff's counsel wrote to the defendant requesting his list of documents. Counsel advised that if the defendant did not produce this by the end of that month, he would make an application for an order for production, or alternatively, an order to strike the response to civil claim in order to take judgment against the defendant. The defendant did not produce a list. In August 2012, on the plaintiff's

application, this Court ordered that the defendant produce a list of documents. In September 2012, the defendant produced a list. In November 2012, plaintiffs counsel wrote to the defendant advising that his list was not in compliance with the SCCR because it primarily listed legislation and case law rather than documents. Counsel requested that the defendant provide an amended list of documents. In December 2012, the defendant provided a list that merely removed the legislation and case law. In February 2013, plaintiff's counsel wrote to the defendant requesting that he provide an updated list of all documents, including insurance estimates, statements, and photographs relating the accident. Later that month, the defendant delivered a letter referring to his earlier list of documents, which does not contain any of those documents. [15] There is then a gap of over three years, where there is no evidence of any activity on this file. [16] In March 2016, plaintiff's counsel sent a letter to the defendant requesting dates for an examination for discovery. In April 2016, the defendant wrote to plaintiff's counsel requesting that counsel be more specific regarding documents in which they are interested. In May 2016, plaintiff's counsel sent a letter to the defendant serving an appointment to examine him for discovery on June 30, 2016. The day before the scheduled examination for

discovery, the defendant sent a reply stating that the appointment was invalid because witness fees for travel, overnight accommodation, and meals were not provided. I note that the defendant would not have been entitled to fees for overnight accommodation as he lived in Coquitlam and the discovery was in New Westminster. However, on June 30, 2016, the defendant attended at the place of the examination for discovery, but then refused to proceed as he had not been paid a witness fee. Despite plaintiff's counsel confirming that payment of a witness fee would be made after the examination, the defendant refused to continue, but did answer some preliminary questions of plaintiff's counsel with respect to whether the defendant was insured through insurers in the U.S.A. The examination was adjourned, but the defendant indicated he would be able to attend an examination in September 2016. During the questioning, the defendant stated he had written to the hospital and the plaintiff's employer to obtain information about the plaintiff and was waiting for replies. He had also written to an insurer in the U.S.A. as he believed plaintiff's counsel had written directly to it, and he wanted to see what plaintiff's counsel had said. It appears that the defendant was not insured at the time of the accident, or if he was, his insurer is bankrupt. [17] There is then another gap of another more

than two years, with no evidence of any activity on the file. [18] The next set of activity takes place from the autumn of 2018 to the spring of 2020. In October 2018, plaintiff's counsel filed a notice of fast track action and a notice of case planning conference ("CPC") set for December 2018, and forwarded it to the defendant. In November 2018, plaintiff's counsel filed a case plan proposal. The defendant objected to this matter proceeding by way of fast track, and plaintiff's counsel disagreed as counsel believed the trial could be completed within three days. In late November 2018, for the first time, the defendant had counsel of record. Plaintiff's counsel received a telephone call from the defendant's counsel, advising that he was acting. During the telephone call, counsel agreed to adjourn the CPC, and to discuss potential settlement. Later that month, the defendant's filed and served a notice of appointment of lawyer. In early December 2018, plaintiff's counsel wrote to the defendant's counsel confirming the adjournment of the CPC and stating that he looked forward to scheduling examinations for discovery and potentially mediation. He requested that the defendant provide an updated list of documents which would include any written statements or notes made by the defendant and photographs. Defendant's counsel did not respond to this letter. There is no evidence of any

steps by either counsel for the next 14 months other than defendant's counsel filing a notice of change of address. However, an affidavit from a case manager at plaintiff's counsel's firm (the "Case Manager") states that this was not served on them. [19] In February 2020, plaintiff's counsel sent defendant's counsel a settlement proposal. There was no response. Shortly after this, the defendant filed and served another identical notice of change of address and served it. In April and June 2020, the Case Manager emailed defendant's counsel following up on the plaintiff's settlement proposal. There was no response to either of these. [20] In the midst of this, there then appeared to be a change of defence counsel. In March 2020, counsel at another law firm ("HD") wrote to plaintiff's counsel advising they had assumed conduct of the file, and to direct all future correspondence to them. However, no notice of change of lawyer was filed. [21] There is then another gap of a year and a half where there is no evidence of any activity on the file. [22] The next set of activity is from the end of 2021 to the end of 2022. Commencing in November 2021, plaintiff's counsel sought clarity as to who was acting. In November and December 2021, and in January and March 2022, plaintiff's counsel wrote to counsel at HD inquiring if they have conduct as defence counsel. There was no response to the

letters. Plaintiff's counsel did not write to counsel who remained on record. Thereafter, the Case Manager took over inquiries and made multiple inquiries from April to August 2022 to a paralegal at HD inquiring if they have conduct as defence counsel. In late April 2022, the paralegal advised that they were waiting to hear from the Insurance Corporation of British Columbia ("ICBC") as to the status of the file. In July 2022, the paralegal advised that they had not heard back from ICBC, and she would try to reach a manager. The paralegal at HD provided an adjuster's and manager's name at ICBC to follow up directly. In September 2022, an ICBC adjuster emailed the Case Manager directly and advised that HD was still showing as defence counsel on the file. Finally, in late October 2022, an ICBC adjuster advised plaintiff's counsel that as the defendant was uninsured, ICBC was unable to act, and if plaintiff's counsel were to file a "notice of default", and if the defendant does not respond, at that point ICBC would gain status and start defending, and HD would be in a position to act. I note that a default judgment would not be possible since a response to civil claim was filed. [23] In early December 2022, after two and a half years, plaintiff's counsel wrote to defendant's counsel who was still on record, following up on the plaintiff's settlement proposal and asking him to

respond by December 15, 2022 and to confirm that he remains as defendant's counsel. The defendant's counsel did not respond to that letter. [24] In January 2023, plaintiff's counsel sent a letter to the defendant's counsel enclosing a notice to admit, and a week later defendant's counsel, responded with a reply to the notice to admit. None of the alleged facts were admitted on the basis that the notice to admit was an "abuse of process, as it was served following a delay of more than one year in which no steps were taken in this proceeding and without the plaintiff first filing a Notice of Intention to Proceed." Plaintiff's counsel and the defendant's counsel had a telephone conversation regarding the defendant's counsel's status. Defendant's counsel confirmed he was representing the defendant and plaintiff's counsel discussed proceeding to discovery. The same day plaintiff's counsel received an email from defendant's counsel requesting available dates for an application to dismiss this proceeding for a want of prosecution. Two days later, plaintiff's counsel wrote to the defendant's counsel delivering a notice to proceed and provided proposed examination for discovery dates in April 2023. In February 2023, plaintiff's counsel sent a second letter to defendant's counsel, proposing trial dates in September, October, or November 2023, or January 2024. Defendant's counsel did not

respond to these letters. [25] This notice of application was filed by defendant's counsel on January 27, 2023 to be heard March 1, 2023. On February 27, 2023 a consent requisition was filed adjourning this application generally. On April 14, 2023, a consent requisition was filed resetting the application for May 15, 2023. A clerk's note from that day states the application was adjourned generally. I understand from counsel that there were insufficient judicial resources for the application to be heard. On June 30, 2023, a consent requisition was filed resetting this application for August 23, 2023. There is no evidence of what took place then, but it was not heard. The next event is a requisition filed a year and seven months later, on March 20, 2025 for this application to be heard April 22, 2025, which was then adjourned by consent to April 25, 2025 when it was finally heard. There is no evidence of why it took the defendant or his counsel more than two years to have this application heard. There is no evidence of why plaintiff's counsel did not unilaterally take out an appointment to conduct an examination for discovery or a trial date when defendant's counsel did not respond to requests for those dates. [26] I note that plaintiff's counsel who appeared on this application, has not had conduct of this file from its inception. Analysis Has the defendant established that the plaintiff's delay in prosecuting the action is inordinate? [27] In Giacomini, the Court summarized the principles which apply to inordinate delay: [38] An inordinate delay is one that is uncontrolled, immoderate, excessive and out of proportion to the matters in question: Wiegert v. Rogers, 2019 BCCA 334 at para.

32. The question of whether delay is inordinate is "not just a question of temporal arithmetic", but rather requires consideration of the circumstances of the case: Sun Wave Forest Products Ltd. v. Xu, 2018 BCCA 63 at para.

25. As explained by Saunders J.A. in Sun Wave, "some cases by their nature are susceptible of faster carriage or by the nature of the allegations call for more expeditious prosecution than others": at para.

25. For example, a court may be less forgiving in assessing litigation delay where the allegations impact the defendant's personal reputation, such as where fraud is alleged: Sun Wave at para. 25. [39] The date of the commencement of the action is typically identified as the point from which delay is measured: Wiegert at para.

32. Delay must be considered holistically; the question is whether the overall delay is inordinate: Ed Bulley Ventures Ltd. v. The Pantry Hospitality Corporation, 2014 BCCA 52 at para. 38. [28] The defendant submits that the delay is inordinate. Although the plaintiff submits that it is not, her arguments were more focused on the reasons for the delay. [29] In my view, the delay in this case is inordinate. This is a straightforward case. The liability issues are not complex. They will not involve expert opinion. Without making any findings on the extent of injuries and damages claimed by the plaintiff, they appear to be modest. The plaintiff returned to work full time by the end of May 2009. Her statement indicates that part of that time away from work may have been to care for her daughter who was in a full-leg cast. In any event, the lost income in that period was about $6,500. The fact that plaintiff's counsel filed a fast track notice indicates that counsel has assessed this as a case which could be heard in three days or less and where damages are less than $100,000. This case should have been resolved or gone to trial a decade ago. Is the delay inexcusable? [30] In Giacomini, the Court summarized the principles that apply to whether a delay is inexcusable: [40] Whether the reason offered by the plaintiff for the delay amounts to an excuse also depends on the circumstances. As a rule, unless a credible excuse is offered, the natural inference is that inordinate delay is inexcusable: Irving at para.

8. The evidence led to explain delay may go to the issue of whether the delay was intentional and tactical, or whether it was the result of "dilatoriness, negligence, impecuniosity, illness or some other relevant cause": 0690860 Manitoba Ltd. v. Country West Construction Ltd., 2009 BCCA 535 at para.

27. A party who intentionally delays the prosecution of an action may be said to assume the risk of dismissal. Where the delay is also tactical, in the sense of intended to prejudice the defendant, this will weigh more heavily against the plaintiff in the analysis: Ralph's Auto Supply (B.C.) Ltd. v. Ken Ransford Holdings Ltd., 2020 BCCA 120 at para.

47. Where the reason for the delay is a lack of diligence on the part of plaintiff's counsel, this might amount to a reasonable excuse in some cases, but in others it might not: 0690860 Manitoba Ltd. at para. 29; Wiegert at para. 33. [31] The defendant submits that the delay is inexcusable because the plaintiff has not offered any credible reason for this matter not advancing. The plaintiff submits that the delay is in whole or part excusable because of: (1) the defendant's lack of proper document disclosure requiring a court order, and which is still ongoing; (2) the defendant's refusal to continue with his examination for discovery; (3) defendant's counsel's lack of responsiveness to plaintiff's counsel; and (4) the confusion around who was acting as counsel for the defendant. The plaintiff also argues that the defendant acquiesced in the delay. I will address acquiescence under the interests of justice stage of the analysis. [32] This question is concerned with whether the plaintiff's delay is excusable. The defendant's conduct is relevant only to the extent that it caused delay or caused the plaintiff's delay to be excusable. [33] In my view, the defendant's failure to provide proper responses to demands for documents and a supplementary list of documents contributed to the delay, but does not provide an excuse for the plaintiff's delay. After the defendant did not

adequately respond regarding disclosure, there is no evidence of any steps being taken by plaintiff's counsel for three years from 2013 to early 2016. During this time, plaintiff's counsel could have made another application to compel production, set down an examination for discovery, and obtained a trial date as an end date to work toward. While I appreciate the desire to have document disclosure prior to an examination for discovery, particularly where it is possible the defendant was not insured, this is unlikely to be a document heavy case, and in fact, plaintiff's counsel did set down an examination for discovery in 2016 despite the state of document disclosure. Once the defendant obtained counsel in late 2018, his counsel did not respond to further requests for document disclosure. The defendant has not responded to date. I do not accede to the defendant's argument that a formal demand for documents was not made. The defendant and his counsel had an obligation to respond, and I find that this also contributed to delay, but this does not make the plaintiff's delay excusable for the same reasons. Plaintiff's counsel has the obligation to prosecute this action, and could have taken steps to address this. [34] In my view, while the defendant's position on examination for discovery in 2016 contributed in a small way to delay, it does not provide an excuse for the plaintiff's

delay. The defendant was correct that he was entitled to witness fees, however, given how nominal they would have been, his very late objection to the discovery on this basis, and his actual attendance at the place of the examination, in my view he took an unreasonable position. This contributed to the delay. The defendant advised he would be agreeable to attending an examination for discovery in September 2016. Despite that, plaintiff's counsel did not serve another appointment for an examination for discovery. There is no explanation why. There is then another two years of no evidence of anything having taken place on the file until late 2018, when plaintiff's counsel took steps to move the file along by arranging a CPC. Counsel for the defendant then came on record. At that time, the counsel agreed to adjourn the CPC, and to proceed to examination for discovery and potentially mediation. Plaintiff's counsel confirmed this in a letter to defendant's counsel, however, there is no evidence that plaintiff's counsel then served an appointment for an examination for discovery, or arranged a mediation date, or obtained a trial date. Counsel at HD then advised they were acting (although there was no change of counsel filed) and there is again no evidence of any activity on the file for a year and a half. [35] The delay between the end of 2021 and the end of 2022, during which time

there was confusion about whether HD was taking over conduct, only partially excuses the plaintiff's delay. HD asked that all future correspondence be directed to them, but did not file a change of lawyer. Throughout this time there was only one counsel of record, and plaintiff's counsel did not communicate with him for two and a half years until the end of 2022, after HD confirmed it was not acting. [36] The delay between 2023 and the hearing of the petition is difficult to understand. There is no excuse for the plaintiff's delay. The plaintiff's counsel sought dates for examinations for discovery and trial, but defendant's counsel did not respond. Instead, defendant's counsel filed this motion. Then it took more than two years for the application to be heard. Meanwhile, the plaintiff did not follow-up or unilaterally take out dates for an examination for discovery or trial when defendant counsel did not provide available dates. [37] In summary, the plaintiff's delay was inexcusable. The defendant and his counsel or purported counsel contributed in a small way to the delay. The plaintiff has the obligation to prosecute the action diligently. There was always a path forward for the plaintiff through remedies in the SCCR if the plaintiff was not obtaining what she needed from the defendant or his counsel, to move forward. Is it in the interests of justice for the action to proceed despite the existence of inordinate and inexcusable delay? (a) the prejudice the defendant will suffer defending the case at trial [38] In Giacomini, the Court summarized the principles applicable to assessing prejudice: [41] In assessing whether there is serious prejudice, the relevant prejudice is impairment of the defendant's ability to defend the action: 0690860 Manitoba Ltd. at para.

50. Serious prejudice may be established through such factors as failing memories, the unavailability of witnesses, and the loss or destruction of evidence: Wiegert at para. 33. [39] Prejudice will only be material to the extent that it was caused by the plaintiff's inordinate delay, not by other events: Buchan v. Moss Management Inc., 2004 BCCA 423, at paras. 4, 12. [40] The defendant submits that it is not in the interests of justice for the action to proceed, primarily because there has been a loss of evidence due to the passage of time, with the result that a fair trial not possible. The defendant identifies six areas of alleged loss of evidence. The plaintiff argues that there is not any serious prejudice and submits that any prejudice to the defendant is capable of being alleviated and is neither sufficient to justify dismissing the plaintiff's action nor attributable to any alleged delay of the plaintiff. [41] First, the defendant submits that after the incident, the plaintiff was treated by an emergency physician named Dr. Gilbert Dyck. Dr. Dyck passed away in 2014. The defendant submits that this is the loss of a "key witness" who likely would have been available to testify as to the nature and extent of the plaintiff's alleged injuries. [42] In my view, there is little if any prejudice to the defendant's case as a result of Dr. Dyck's passing. The ambulance and

hospital records of the emergency visit have been produced. Those records show, consistent with the plaintiff's statement made a few days later, that she presented primarily with some pain, and scrapes to her limbs. Further, the detailed physician assessment notes were actually written by a medical student intern (the "MSI"), and there is no evidence that person is no longer available. Finally, the records are presumably business records, and provided that foundation is proved, may be tendered pursuant to s. 42 of the Evidence Act, R.S.B.C. 1996, c. 124, for the purposes explained in Seaman v. Crooks, 2003 BCSC 464 at para. 14. [43] Other evidence is available to assess the plaintiff's injuries. The plaintiff's family physician since 2004 saw her three days later and continued to see her until 2020. The plaintiff has produced photographs of her injuries taken approximately one-month post-incident. The black and white photocopies in the application record are poor, but plaintiff's counsel advises that colour copies are available. In August 2009, the plaintiff's employer advised the plaintiff missed 30 work days. In December 2009, the plaintiff's family doctor produced a CL-19 Medical Report documenting the plaintiff's injuries. He stated that her disability ended May 25, 2009 and she was working full time. [44] Considering all of the above, in my view, Dr. Dyck who saw the

plaintiff one time in the emergency room, is not a key witness. There is ample other evidence to assess the plaintiff's injuries. [45] Second, the defendant submits that in August of 2010, plaintiff's counsel made a request for the plaintiff's medical services plan ("MSP") history report from April 1, 2009 to August 13, 2010. Those were produced, but Health Insurance BC advised that it only keeps records for seven years. The defendant argues that it is no longer possible for him to request the MSP history prior to the accident date, and this "makes it impossible" to determine if the plaintiff had pre-existing conditions. [46] I disagree. In the plaintiff's May 2009 statement, she states that she was in good health, had never had an ICBC claim before, and had never had any injuries to the areas hurt in the accident. The CL-19 medical report completed by the family physician states that prior to the accident the plaintiff had not reported symptoms or received treatments for the areas injured. In Kaladjian v. Jose, 2012 BCSC 357 at para. 70, the Court commented that a mere pleading of a pre-existing condition by a defendant is not sufficient without more to require disclosure of MSP records. However, the plaintiff is prepared to consent to disclosure of her family physician's medical records for the two years preceding the accident, subject to redactions for relevance and privacy.

The defendant will have the ability to ascertain the plaintiff's medical condition before and following the accident. [47] Third, the defendant argues that the ambulance record from the incident specifies that "witnesses state it DID NOT have wheels going". These witnesses are now impossible to find as the list of parents whose children attended the daycare, and their contact information were destroyed after 10 years. [48] To the extent the defendant implies these are important witnesses because they have apparently reported something different than the plaintiff as to how the accident took place (i.e. that the defendant's vehicle did not move), the quotation cited by the defendant is not complete. When the quotation is read in its entirety, it appears to say something different. The way I read the report is "Pt. states car going over them however witnesses states it DID NOT have wheels going over them. They [notes continue at bottom of page] were under the rear section of car." The defendant does not refer to the italicized portions above. The nursing triage notes, under History of Presenting Complaint state: "Walking on side walk - Hummer backed out of driveway; pt was bent down at the time and got hit by bumper in the lower back - fell face forward ". The MSI's notes under History of Chief Complaint are to a similar effect that the plaintiff was knocked by the back bumper

and not run over by a wheel. [49] As for other witnesses, the police report provides the names of two witnesses to the accident with redacted contact information. There is no evidence from the defendant or plaintiff that there were other witnesses. The police file has been destroyed. The plaintiff's counsel retained a private investigator in 2023 who interviewed one of the witnesses, Jerush Chung. Mr. Chung's statement was produced. He states that the defendant backed up his vehicle into the plaintiff and her child. He states the other witness is Gladys Lee. Her child also attended the daycare, but Mr. Chung has lost contact with her. There is no evidence as to what steps have been taken to find Ms. Lee, by either party. A third person who was at the scene, the manager of the daycare, was also interviewed by the private investigator, however, that person did not witness the accident. The defendant's counsel points out that this witness has a poor memory, but that does not prejudice either party if that witness did not observe the accident. [50] The plaintiff has produced her statement as to the circumstances of the accident taken approximately one-month post-accident. There is no evidence of whether or not the defendant provided a statement to ICBC or his possible insurers in the U.S.A. The defendant personally prepared the response to civil claim that pleads the circumstances

of the accident from his perspective. The defendant repeated some of that evidence in the preliminary discussions that took place at the failed attempt at an examination for discovery in 2016. There is no suggestion by the defendant that he cannot remember the accident. [51] Fourth, the defendant submits that the manager of the childcare facility confirmed that the childcare facility does not have any security footage or lists of parents and their contact information from 2009, because records are destroyed after 10 years. The defendant submits that loss of security footage makes it impossible to determine if the vehicle struck the plaintiff. [52] This argument reads into the email from the manager something which cannot be reasonably inferred. In an email in January 2023, defendant's counsel wrote to the daycare asking if it retained a list of parents of children attending the daycare in 2009, and if it had any security footage of the parking lot area from 2009. Counsel stated he was not asking the daycare to provide that information at this point in time, and only if those records were destroyed. The response was: We do not have any security footage, or the list of parents from 2009. Records are destroyed after 10 years. [53] I do not read this as stating that the daycare ever had security footage, and if it did, whether it covered the area where the accident took place. I

accept that records of parents from 2009 have been destroyed, but there is no evidence that there were any witnesses other than what is in the police report. However, the entire police file has been destroyed, so there is only the information on the first page of the police accident report. It is possible there were other witnesses. The lack of security footage, does not make it "impossible" to determine if the Hummer struck the plaintiff. The plaintiff, Mr. Chung, and the defendant can provide evidence. [54] Fifth, the defendant submits that the parking lot and entrance to the parking garage for the childcare facility where the alleged incident took place were "renovated, levelled and redesigned in 2015 and again in 2021". The plaintiff submits that through Google Maps Street View, the parties are able to have a near contemporaneous view of the incident's location through various points in time, from May 2009 up to October 2020. These pictures are appended to an affidavit. [55] Reviewing those pictures, I am satisfied that there are no significant changes, and in any event, there is no explanation of how any changes impact the major issue of whether the defendant backed up into the plaintiff. [56] Sixth, the defendant submits that memories fade, the limitation period has passed several times over, and there is a presumption of prejudice. In Giacomini, the Court explained that the presumption of prejudice after inordinate, inexcusable delay is not a presumption of law, but a presumption of fact "in the sense that the circumstances may be such that a factual inference of prejudice should, but need not, be logically drawn": at para.

45. The Court concluded: [46] Accordingly, it does not matter who puts forward the evidence of prejudice. The question remains whether, on a balance of probabilities, the absence of prejudice has been established: Tundra Helicopters at para.

37. On the facts of Tundra Helicopters, the evidence put forward by the defendants to show actual prejudice was so weak that it was found to support the plaintiff's assertion that there was no prejudice: Tundra Helicopters at para. 30. [48] As is evident from Tundra Helicopters and the cases that followed, the force of the presumption of prejudice will vary with the circumstances. The presumption is only a factual inference that could, but not necessarily will, be logically drawn from the existence of inordinate and inexcusable delay. The strength of the inference may, depending on the facts, be limited. A plaintiff may rebut the presumption without tendering any evidence of prejudice at all. Further, as in Tundra Helicopters, the defendant's evidence of prejudice--to the extent that it lacks persuasive force--may itself assist the plaintiff in rebutting the presumption. [57] The plaintiff submits that although memories fade with time, individuals do not lose all memories of events, particularly significant events. Further, to the extent there may be any prejudice from lost evidence or faded memories, the defendant had ample opportunity to obtain and preserve that evidence himself. [58] In my view, the defendant must have known from the date of incident that there was a possibility a claim would be brought against him. He knew from January 2010 that he was being sued. He could

have taken steps to investigate the claim, and apparently did take steps, by writing to the hospital, the plaintiff's employer, and an insurer after the incident. Once he was sued, while he does not have an obligation to move the plaintiff's case forward, nothing has stopped him from preparing his own defence. [59] Considering all of the above, in my view, on a balance of probabilities, the absence of serious prejudice has been established. However, that does not mean there is no prejudice. I find that there is some prejudice. As noted above, memories do fade, the limitation period has expired several times over, and it is possible that Ms. Lee will not be located. There is no evidence that the plaintiff has found her to date. I assume if counsel had found Ms. Lee, there would be evidence of that. It is also possible there were other witnesses to the accident that would have been revealed in the police file. (b) the length of the delay [60] As discussed above, the plaintiff's delay has been inordinate. The defendant or his counsel have contributed to the delay in a small way. (c) the stage of the litigation [61] This case has not moved past the discovery stage of the litigation. However, the resolution of this case is unlikely to require significant time. It is a straightforward case. (d) the impact of the delay on the defendant's professional, business, or personal

interests [62] The defendant did not provide evidence that the delay had an impact on his professional, business or personal interests, although naturally, being an uninsured defendant would be worrisome. (e) the context in which the delay occurred, in particular whether the plaintiff delayed in the face of pressure by the defendant to proceed [63] There is no evidence of the defendant or his counsel notifying or putting pressure on plaintiff's counsel to proceed. The first time that the defendant raised an issue regarding delay was in January 2023, when defendant's counsel advised he would be bringing this application. This was after plaintiff's counsel had asked him to respond by December 15, 2022 as to whether he was acting for the defendant. It is not clear why it took more than two years for this application to proceed. In Giacomini, the Court commented: [76] it should not be forgotten that there are avenues available to defendants concerned about the pace of litigation, including setting timelines for pre-trial steps through the terms of a case plan order. Put simply, the plaintiff's delay does not tie the hands of a defendant who is motivated to bring the case to its conclusion. There is, of course, no obligation on the defendant, who has involuntarily been brought into a lawsuit, to take any steps to move the plaintiff's case forward. However, the defendant's inaction

in the face of lengthy delay by the plaintiff may weigh against dismissal of the action at the interests of justice stage of the analysis. [64] I have taken the defendant's inaction into account in assessing this case, but I have also considered that he was self-represented for years prior to his counsel being retained, and is possibly uninsured. He has no obligation to move the case forward. However, I cannot conclude from the history of events that the defendant acquiesced in the delay. There is no evidence that the defendant or his counsel indicated to plaintiff's counsel that they were content to let the action sit. (f) the reasons offered for the delay [65] The reasons for the delay were discussed above. In summary, the plaintiff's delay is inexcusable, but the delay was contributed to in a small way by the defendant. (g) the role of counsel in causing the delay [66] There was no evidence from the plaintiff, or her counsel who had conduct of her file at the relevant times, as to why there was delay. Plaintiff's counsel took few substantive steps to move this matter forward, and they were sporadic, interspersed by years, and counsel did not follow-up or pursue steps that were always open to the plaintiff under the SCCR to move the action forward. [67] In the absence of any evidence from the plaintiff or her counsel who had conduct of the file, I cannot assume what

discussions and decisions had taken place between them. The approach to this file could have been a tactical decision that the matter was not worth pursuing given what appear to be modest injuries and a likely uninsured defendant, or it could have been the plaintiff failing to provide instructions to pursue the action, or it could have been lack of diligence and inattention by her counsel. The delay remains unexplained. (h) the public interest in having cases that are of genuine public importance heard on their merits [68] Inordinate and inexcusable delay such as this negatively impacts the administration of justice and the public's perception of the administration of justice. It should not take 15 years for a simple case such as this to be resolved or heard at trial. (i) the merits of the action [69] There is no suggestion that the plaintiff's action is bound to fail. The evidence of the one independent witness appears to support the plaintiff's version of events. The defendant's response to civil claim admits of the possibility that his car moved "not more than a foot". Whether it is a foot or a car length, if the Hummer moved and hit the plaintiff, an accident took place. (j) other considerations [70] Other than one chambers day where the parties were unable to be heard due to lack of judicial resources, there is an unexplained delay of why it took more than two years for

the defendant to have this application heard once it was filed. In the interim, had the defendant's counsel responded to plaintiff's counsel proposal for examination for discovery and trial dates, or if the plaintiff had unilaterally set down and taken out those dates, this matter could have gone to trial in the interim. It is difficult to understand why plaintiff's counsel did not take these steps. [71] The plaintiff referred to a number of cases where there were delays of over ten years and up to 25 years and the court did not dismiss the action on a want of prosecution application. There are also cases where applications have been granted with lesser delays. I have reviewed all of the cases cited by counsel, but do not find it useful to review them here as want of prosecution cases are highly fact specific, and all of these cases were decided before Giacomini. Conclusion [72] I am satisfied that the delay has not caused the defendant to suffer any serious prejudice to his defence, but I find that there has been some prejudice. The police file has been destroyed, and only one witness has been located. If Ms. Lee had been located, I expect evidence of that would have been tendered. There is also a general prejudice due to the passage of time, such as loss of memory, which in my view is less significant. Any general prejudice as a result of the passage of time will equally

apply to the plaintiff who has the burden of proof. [73] On the other hand, the delay is inordinate and inexcusable. It has been more than 15 years since this action was commenced and very little has been accomplished in terms of moving it forward. The lack of any explanation from the plaintiff and her counsel who had conduct of the file, of the sporadic attempts interspersed by years to move the litigation forward, the lack of follow-up and the failure to avail themselves of remedies under the SCCR, and in the circumstances of what appears to be a modest claim against an uninsured defendant, is concerning and weighs heavily in the balance. Unexplained and inexcusable delays such as this negatively impact the administration of justice and the perception of the administration of justice. [74] The plaintiff has a presumptive entitlement to an adjudication of her claim on its merits, but she also has an obligation to pursue that diligently. She has not done so. Whether that was a tactical decision by her and her counsel, a failure by her to provide instructions, or a lack of diligence by her counsel, or some other reason, I cannot say, but it has gone on too long. The plaintiff has failed to provide any reasonable excuse for almost all of the delay. [75] Weighing all of the above factors, I find that it is in the interests of justice to dismiss the action. "Norell J."