Prince Rupert Building Materials Ltd. v. Guo

2022 BCSC 1662 Prince Rupert Building Materials Ltd. v. Guo

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Prince Rupert Building Materials Ltd. v. Guo, 2022 BCSC 1662 Date: 20220922 Docket: S-10270 Registry: Prince Rupert Transferred Proceeding Between: Prince Rupert Building Materials Ltd. Plaintiff And Vinson Liang Guo Defendant Before: The Honourable Justice Thompson Supplementary Reasons to Prince Rupert Building Materials Ltd. v. Guo, 2022 BCSC 1567, Prince Rupert Docket S-10270 Reasons for Judgment In Chambers Counsel for the Plaintiff: T. Maas Counsel for the Defendant: B. Loh Place and Dates of Hearing: (by videoconference) Victoria, B.C. September 20, 2022 Place and Date of Judgment: Prince Rupert, B.C. September 22, 2022 [1] On 9 August 2022, I adjourned to the trial judge the defendant's application to dismiss the action for want of prosecution. In doing so, I relied on the rationale of Lambert J.A. in a concurring judgment in Irving v. Irving (1982), 38 B.C.L.R. 318 at para. 29 (C.A.). Before entry of the order, the reasons of the Court of Appeal in Bonaparte Indian Band v. Lakeridge Contracting Ltd., 1999 BCCA 729, came to my attention. This latter decision held that it was an error of principle to adjourn a want of prosecution application to trial (para. 10). [2] In these circumstances, I asked counsel for submissions. Counsel agree that Bonaparte Indian Band does not permit the order I made, and that I ought to

exercise my inherent jurisdiction to set aside that unentered order. By consent, I do so. The parties disagree, however, on what order ought to be made in its place. [3] The defendant applicant contends, as he did at the main hearing, that the action ought to be dismissed for want of prosecution. He argues that the plaintiff has not rebutted the presumption of prejudice that arises from my finding that there has been inordinate delay. In the alternative, the defendant submits that if the action is allowed to continue then in these circumstances it is appropriate to make the order without prejudice to the defendant's right to bring another application. This latter approach is sanctioned by Busse v. Robinson Morelli Chertkow (1999), 63 B.C.L.R. (3d) 174 at para. 27 (C.A.), quoted with approval in Bonaparte Indian Band, at para.

9. The plaintiff submits that the application ought to be simply dismissed, but concedes that the circumstances in this case might support the alternative position advanced by the defendant. [4] As I said in the main reasons at para. 16, at this stage of the proceedings I have a poor vantage point to assess the degree of prejudice arising from the plaintiff's inordinate delay. For ready reference, I repeat what I said at para. 17: The evidence certainly establishes the possibility of prejudice but it is too early to tell how serious the prejudice is and whether it creates a substantial risk that a fair trial will not be possible. To dismiss the action at this stage could result in injustice; on the other hand, to dismiss the application when the amount of prejudice to the defendant is yet to be fully ascertained may end up resulting in an unfair trial and this would be an unjust result. [5] Despite my concerns about the prematurity of reaching a conclusion on the degree of prejudice, Bonaparte Indian Band dictates that a decision be made. As I indicated in my main reasons at para. 15 and 19, from this poor vantage point I acknowledge the possibility that the defendant's alleged memory loss may imperil a fair trial. However, the plaintiff has convinced me on a balance of probabilities that the risk at this time to a fair trial does not appear substantial. On what Saunders J.A.

described in Lost Lake Properties Ltd. v. Nanaimo (Regional District), 2016 BCCA 487 at para. 22, as "the real question," the plaintiff has satisfied me that it is in the interests of justice that the case be allowed to proceed. [6] It follows that the application must be dismissed, but in the circumstances I agree with the defendant's alternative position. The dismissal of the application is without prejudice to his right to make another application. [7] I turn to the matter of costs of this application. Although the application to dismiss the action failed because I have found that it is in the interests of justice to allow the action to proceed, the defendant established inordinate delay. I consider the fair order is for each party to bear their own costs. "Thompson J."