Northwest Organics, Limited Partnership v. Sam

2018 BCCA 70 Northwest Organics, Limited Partnership v. Sam

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Northwest Organics, Limited Partnership v. Sam, 2018 BCCA 70 Date: 20180209 Docket: CA44604 Between: Northwest Organics, Limited Partnership and Northwest Group Properties Inc. Appellants (Plaintiffs) And Mike Sam Respondent (Defendant) Before: The Honourable Mr. Justice Groberman The Honourable Madam Justice Stromberg-Stein The Honourable Mr. Justice Savage On appeal from: An order of the Supreme Court of British Columbia, dated June 28, 2017 (Northwest Organics, Limited Partnership v. Sam, 2017 BCSC 1088, Vancouver Registry S108325). Oral Reasons for Judgment Counsel for the Appellants: R.J.C. Deane Counsel for the Respondent: O.C. Hanson Place and Date of Hearing: Vancouver, British Columbia February 9, 2018 Place and Date of Judgment: Vancouver, British Columbia February 9, 2018 Summary: Appeal from an order dismissing the underlying action in defamation, unlawful interference, and trespass for want of prosecution. The appellant submits the judge erred in finding there was inordinate and unjustified delay, or, alternatively, by dismissing the entire action and not just the defamation component to which much of the judge's analysis related. Held: appeal dismissed. The judge's decision in a want of prosecution application is entitled to deference, and the judge made no error justifying appellate intervention. The appellant did

not fully canvass its alternative position before the judge, and the judge was entitled to dismiss the entirety of the proceeding. Background [1] SAVAGE J.A.: This action arises in the context of a wider dispute between the plaintiff companies, including Northwest Organics, Limited Partnership ("Northwest"), and the Lytton First Nation regarding an organic composting facility which the plaintiffs own and operate in the Botanie Valley. Members of the First Nation and other residents have opposed the facility. [2] Northwest filed suit against Mr. Sam, a member of the Lytton First Nation, on December 20, 2010 for defamation, unlawful interference with economic interests, and trespass to land. Mr. Sam was served with the notice of civil claim on February 2, 2011. Northwest commenced two other defamation actions at a similar time, and another defamation action in 2015. The three latter actions have proceeded, and were scheduled for trial in August 2017. [3] In the notice of civil claim alleging defamatory conduct on the part of Mr. Sam, Northwest states that Mr. Sam spoke, published, or caused to be published a number of defamatory falsehoods regarding the composting facility and its operation. The defamatory words are not identified in the pleadings. The pleadings claim Mr. Sam knows the particulars of the defamation, and that he acted with malice. [4] Mr. Sam spoke with a lawyer

in February 2011. This lawyer, who was not retained by Mr. Sam, spoke with counsel for Northwest who agreed to extend the deadline for Mr. Sam to file his response to civil claim. The result of this conversation is disputed. Northwest argues that the discussions between counsel resulted in an "abeyance agreement", which Mr. Sam denies. [5] Neither party took further steps in the action until July 2016 when Northwest filed a notice of intention to proceed. Particulars were provided to Mr. Sam shortly thereafter. In September 2016, Mr. Sam filed a response to civil claim. He immediately brought the present application pursuant to Rule 22‑7 to dismiss for want of prosecution. The Decision Below [6] In reasons indexed at 2017 BCSC 1088, Mr. Justice Butler first outlined the four-part test for an application to dismiss for want of prosecution as set out in 0690860 Manitoba Ltd. v. Country West Construction Ltd., 2009 BCCA 535. Briefly, the four requirements are: (1) inordinate delay, (2) inexcusable delay, (3) prejudice, and (4) the balance of justice. No issue is taken with his articulation of the test. [7] The judge noted that the fourth factor encompasses the other three, and is the most important and decisive question. While the onus is on the applicant on the first two factors, if the applicant meets its burden, a rebuttable presumption that the delay has prejudiced the

applicant will arise. The onus then shifts to the respondent to demonstrate that the applicant has not been prejudiced by the delay: Tundra Helicopters Ltd. v. Allison Gas Turbine, 2002 BCCA 145. [8] With respect to inordinate delay, the judge emphasized that this inquiry is context-specific. When an action involves allegations against a defendant's character, there is an onus on the plaintiff to proceed in an appropriately expeditious and diligent fashion. [9] The judge noted that the delay in this case amounted to almost six‑and‑a‑half years, and no substantive steps have been taken. He found it significant that Northwest did not particularize the defamatory statements in the pleadings until recently, which means that oral testimony surrounding comments allegedly made in 2010 will be of paramount importance. [10] Here, Northwest pleaded Mr. Sam acted with malice. The judge noted that as this argument went to Mr. Sam's character, Northwest was obliged to proceed in a timely manner. [11] The judge concluded that the delay in this case was clearly inordinate, given the nature of the action. [12] With respect to inexcusable delay, the judge rejected Northwest's argument that an abeyance agreement had been reached between the parties. He held Northwest's delay was tactical in relation to their legal battle with the First Nation: Northwest only resumed the present proceeding once

consultation with the First Nation broke down. Accordingly, no credible excuse for the delay had been offered. [13] In regard to prejudice, because Mr. Sam had discharged his onus on the first two factors, the rebuttable presumption that the delay led to prejudice arose, and Northwest therefore had the onus to rebut the presumption on a balance of probabilities. The judge noted that, in the context of serious defamation actions where delay has extended beyond the limitation period, courts have tended to give the presumption significant weight. [14] The presence of fading memory may also contribute to a finding of prejudice. The judge held that, in the context of this case, fading memory issues do contribute to specific prejudice. The particulars of the defamation claim were, Northwest submitted, the unique knowledge of Mr. Sam. Mr. Sam produced evidence relating to his own fading memory. The particulars provided to Mr. Sam in 2016 came too late to mitigate this prejudice. [15] As specific prejudice was apparent, and the presumption was strong in the case, the judge concluded Northwest had failed to rebut the presumption of prejudice. [16] Finally, in considering the balance of justice, the judge found that justice required the case be dismissed. Northwest held allegations against Mr. Sam for over six years. These allegations were not particularized until 2016. Northwest acted

to gain tactical advantage in their dispute with the First Nation. No credible excuse for the delay was proffered. Viewed holistically, the approach taken by Northwest made it unlikely that there could be a fair trial on the merits. [17] Accordingly, the judge granted Mr. Sam's application and dismissed the action. Because he dismissed the action for want of prosecution, the judge did not consider Mr. Sam's application pursuant to Rule 9‑5, or his request for further particulars. Issues [18] Northwest argues the judge erred by finding any delay in prosecuting the action was inordinate and unjustified. Alternatively, Northwest submits the judge erred by striking the entire action rather than only the defamation claim to which the alleged prejudice related. Standard of Review [19] The decision to strike a claim for want of prosecution is discretionary and is therefore entitled to a high degree of deference on appeal. This Court will only interfere with the judge's determination if it finds the judge acted on incorrect legal principles, made palpable and overriding errors, or made a decision which amounted to an injustice: Ed Bulley Ventures Ltd. v. The Pantry Hospitality Corporation, 2014 BCCA 52 at para. 30, citing Brenner v. Brenner, 2010 BCCA 553 at para. 8. [20] It is not the role of this Court to reweigh the evidence in respect of the inference-drawing process. As set out in

Nelson (City) v. Mowatt, 2017 SCC 8 at para. 38: It is certainly possible to weigh parts of the evidence differently than the chambers judge did. The possibility of alternative findings based on different ascriptions of weight is, however, not unusual, and presents no basis for overturning the findings of a fact-finder. It is not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence. Absent palpable and overriding error -- that is, absent an error that is "plainly seen" and has affected the result -- an appellate court may not upset a factfinder's findings of fact (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 6 and 10; see also H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 55). The standard of palpable and overriding error applies with respect to the underlying facts relied upon by the Trial Judge to draw an inference, and to the inference-drawing process itself (Housen, at para. 23). [Emphasis added.] Analysis [21] Northwest alleges the judge erred in concluding its delay in prosecuting the action was inordinate and unjustified. Northwest specifically argues the judge mischaracterized the nature of the alleged abeyance agreement. Such agreement, Northwest submits, was not for tactical purposes, but rather contingent on Mr. Sam ceasing his wrongful conduct. Alternatively,

Northwest asks this Court to recognize that fostering good relations with the First Nation provided justification for any delay in prosecution. [22] I see no merit in these arguments. The judge's determinations impugned by Northwest are inherently discretionary decisions and are entitled to deference on appeal absent errors in principle, palpable and overriding errors, or injustice. Northwest has not persuaded me that the judge made any such errors. [23] The judge thoroughly canvassed the evidence before him, and provided detailed reasons for his determination that the delay was inordinate and unjustified. He rejected the argument that there was an abeyance agreement reached between the then counsel for Mr. McCrae (the Chairman and CEO of the plaintiff companies), who did not give evidence, and a lawyer not yet retained by Mr. Sam. He found the reasons for the delay were tactical. [24] In my view, his recitation and application of the test for want of prosecution contain no errors. It was certainly possible to weigh parts of the evidence differently and draw different inferences; however, the standard of palpable and overriding error applies both with respect to the underlying facts and the inference drawing process itself: Housen, at para. 23, quoted above. [25] Likewise, I would not accede to Northwest's submission that the judge erred by striking the entire action, rather

than only the alleged defamation component of the claim. Northwest did not canvass this argument before the judge, despite the judge asking the appellant whether it was possible to strike individual causes of action (i.e., only the defamation) for want of prosecution. Northwest only particularized its arguments with respect to Mr. Sam's Rule 9‑5 application. [26] In any event, even if this Court exercised its discretion to entertain this argument for the first time on appeal, I am not of the view that it would impact the judge's disposition. I am satisfied that the judge considered all of the arguments that were made before him in deciding to dismiss the entirety of Northwest's claim. In my view, he was entitled to dismiss the entire proceeding for want of prosecution on the evidence before him. Conclusion [27] In the result, for these reasons, and for substantially the reasons of the chambers judge, I would dismiss the appeal. [28] GROBERMAN J.A.: I agree. [29] STROMBERG-STEIN J.A.: I agree. [30] GROBERMAN J.A.: The appeal is dismissed. "The Honourable Mr. Justice Savage"