Executive Summary: Key Legal and Evidentiary Issues

• Defendants successfully applied to dismiss the personal injury action for want of prosecution under Rule 40.11 of the Rules of the Supreme Court.

• Court found the plaintiff’s delay of over nine years since filing and eleven years since the accident was inordinate.

• Plaintiff failed to provide any excuse for the delay, making it inexcusable under the legal framework.

• Prejudice to the defendants was inferred due to the extensive passage of time affecting witness memory and trial fairness.

• Defendants demonstrated actual prejudice due to difficulties locating a key witness and fading recollections.

• Plaintiff’s action was dismissed with costs awarded to the defendants under Column 3 of the Scale of Costs.

Facts of the case

Gerard Jody Collier filed a negligence action against Nova Fish Farms Inc. and Cold Water Fisheries Inc. following a snowmobile accident on February 1, 2014. He alleged that his snowmobile collided with abandoned aquaculture pens left frozen into the ice at Bay d’Espoir, Newfoundland and Labrador. The plaintiff claimed the pens lacked markings or warnings and that he suffered a fractured leg as a result of the collision. The defendants denied liability, ownership, and any connection to the incident, and further alleged contributory negligence by Mr. Collier for operating his snowmobile recklessly.

The Statement of Claim was issued in January 2016, but over the following nine years, minimal progress was made. While document exchange and a discovery were conducted by mid-2017, and a pre-trial conference occurred in late 2019, the plaintiff took no substantive steps thereafter. The defendants delivered interrogatories in 2020, and although the plaintiff eventually responded, there were no further actions to move the case forward. By 2024, the defendants filed a motion to dismiss the action for want of prosecution due to prolonged inactivity.

Outcome of the case

The Newfoundland and Labrador Supreme Court granted the defendants’ application to dismiss the case for want of prosecution under Rule 40.11. Justice O’Leary found that the delay in prosecuting the action was inordinate, spanning over nine years since filing and eleven years since the accident. The plaintiff provided no explanation or affidavit evidence excusing the delay, and had remained entirely inactive despite extensions and court opportunities to proceed.

The Court inferred serious prejudice to the defendants from the passage of time, noting the risk of faded memories and difficulty locating key witnesses, including the defendants' principal witness. The Court further confirmed that no obligation rested on the defendants to preserve their own witnesses’ evidence where the plaintiff’s inactivity caused the delay. Finding that the three-part test for dismissal for want of prosecution was met — inordinate delay, no excuse, and prejudice — the Court dismissed Mr. Collier’s action and awarded the defendants their costs on Column 3 of the Scale of Costs.