Executive Summary: Key Legal and Evidentiary Issues

• The appellants’ claim was struck under Rule 4-44(a) for inordinate and inexcusable delay in prosecution.

• Delay continued for over seven years, including nearly five years without document disclosure.

• The Chambers judge applied the full International Capital Corporation (ICC) test and concluded the interests of justice no longer supported continuing the claim.

• Arguments that procedural fairness was breached due to lack of evidence filing were rejected by the Court of Appeal.

• Prejudice was inferred from delay's impact on evidence gathering and the defendant’s reputation.

• The appeal was dismissed with costs awarded to the respondent.

Facts of the case and procedural background

In 2016, Eddy Mosiuk and Patricia Skrapek hired Brent Black to custom seed farmland. When the crops allegedly failed to grow properly, the plaintiffs commenced legal proceedings in 2018. The statement of defence was filed in October 2020, after the plaintiffs were ordered to provide particulars. Following that, the plaintiffs took minimal steps to advance the litigation.

The defendant first applied to strike the claim for delay in February 2022. Justice Clackson heard the application and found the delay to be both inordinate and inexcusable but concluded it was still in the interests of justice to allow the claim to proceed. He relied in part on Mr. Mosiuk’s assurance that he was ready and anxious to move forward. The application was dismissed.

Despite this, progress stalled. A mediation was held in September 2022 but was unsuccessful. The defendant’s counsel continued to request disclosure in October, December, and January 2023, but received no meaningful response. In October 2023, a second application to strike for delay was filed. On the initial hearing date, the appellants and their counsel did not appear. The matter was adjourned to November 14, 2023. On that date, both parties attended and presented their arguments.

Chambers decision to dismiss the claim

Justice Layh delivered his decision on November 27, 2023. He held that the delay remained inordinate and inexcusable. He noted the plaintiffs failed to fulfill their stated commitment to move forward and had shown “remarkable disregard” for the litigation. He applied the three-part test from International Capital Corporation v. Robinson Twigg & Ketilson (2010 SKCA 48). Although the first judge previously declined to strike the claim, Justice Layh considered developments since that ruling, including continued inactivity and non-disclosure. He found it was no longer in the interests of justice to permit the matter to proceed. He also found the delay had caused prejudice to the respondent due to difficulties in evidence-gathering and ongoing reputational harm.

Appeal and decision by the Court of Appeal

The appellants appealed, arguing three grounds: (1) procedural unfairness due to the hearing proceeding without filed evidence, (2) the Chambers judge misapprehended or overruled the first judge’s findings, and (3) error in assessing whether the interests of justice supported dismissal.

The Saskatchewan Court of Appeal rejected all arguments. It held that there was no procedural unfairness, as the appellants had notice of the hearing, failed to file evidence, and did not request an adjournment. The Court found no error in how the Chambers judge considered the findings from the earlier decision. It emphasized that the entire delay period must be considered and that Justice Layh appropriately reviewed the record in full. It also upheld his findings on prejudice, including inferred reputational harm, and concluded his decision was consistent with the ICC framework.

Outcome

The appeal was dismissed. The Court of Appeal awarded costs to the respondent for the appeal and the application to perfect the appeal, calculated in the usual manner. The plaintiffs’ action was permanently dismissed due to prolonged and unjustified delay.