Executive Summary: Key Legal and Evidentiary Issues

• Plaintiff Donald Bugden alleged a 2001 workplace assault caused PTSD, leading to claims of failure to accommodate and constructive dismissal filed in 2005.

• No procedural steps were taken to advance the claim between 2015 and 2024, resulting in a cumulative delay far exceeding the five-year common law benchmark for inordinate delay.

• Former counsel's disbarment in 2024 for misleading clients lent credibility to the Plaintiff's explanation but did not legally excuse the delay, as misfeasance by counsel only "softens but does not excuse" inaction.

• Neither the City nor the Union established direct prejudice despite citing witness deaths and retirements, as no affidavit evidence demonstrated the materiality of lost testimony.

• Prejudice to the Defendants was instead inferred from the extreme passage of time — nearly 25 years since the incident and 20 years since the claim was filed — given the fact-driven nature of the evidence.

• The Court applied the Allen test while acknowledging evolving common law trends favoring broader multi-factor analyses and fixed benchmarks for dismissal.

The workplace incident and the origins of the claim

Donald Bugden was a firefighter with the St. John's Regional Fire Department. He claims that in March 2001, he was assaulted by a co-worker, which caused him to suffer from post-traumatic stress disorder. This incident necessitated him taking an extended leave of absence from work. On his return, he asserts that the accommodation provided by the City of St. John's was unsuccessful. Despite the difficulties at work, he was promoted to Fire Lieutenant in 2004 and retired on 31 January 2005.

Filing of the statement of claim and early proceedings

On 14 July 2005, Mr. Bugden's lawyer filed a statement of claim against the City, alleging amongst other things, that it negligently subjected him to an unsafe work environment, recklessly inflicted mental suffering and constructively dismissed him. He also claimed that the Second Defendant, the International Association of Firefighters Local 1075 (the "Union"), failed to meet its duty of fair representation. The litigation progressed slowly from the outset. Three witnesses were discovered in February 2012, and in January 2015 Mr. Bugden's former lawyer filed a Notice of Intention to Proceed and served a Supplementary List of Documents containing a medical report. After that, nothing happened until new counsel was appointed in 2024.

The role of former counsel's misconduct

Between 2015 and 2019, Mr. Bugden had frequent contact with his former lawyer, and he was repeatedly reassured that his matter was progressing. Due to illness in Mr. Bugden's family and the COVID-19 pandemic, Mr. Bugden had less contact with his lawyer after 2019. At some point after 2022, his lawyer suggested that he retain new counsel. On 14 March 2024, the former lawyer was disbarred. The Law Society Disciplinary Tribunal found that the lawyer misled clients about the progress of their claims and had engaged in a "web of willful deceit" to conceal his failings. Mr. Bugden retained new counsel, John F.E. Drover, in January 2024, who attempted to revive the claim by filing the Trial Record and sending the Defendants a Certificate of Readiness in April 2024. No application was filed to set the matter down for trial.

The applications to dismiss for want of prosecution

On 26 November 2024, the City filed an application to dismiss Mr. Bugden's claim for want of prosecution, and the Union did the same on 3 January 2025. The hearing took place on 12 December 2025 before Justice Justin S.C. Mellor. The application was brought under Rule 40.11 of the Rules of the Supreme Court, 1986.

The legal framework: the Allen test and evolving standards

The Court applied the three-part Allen test, the leading authority in this province as adopted in Penney v. Lush (1996). Under this test, a party must show an inordinate delay, that the inordinate delay is inexcusable, and that the defendant will be seriously prejudiced if the matter proceeds. Justice Mellor acknowledged extensive criticism of the Allen test across common law jurisdictions and noted evolving approaches in British Columbia, Ontario, Saskatchewan, and Ireland that either broaden the test to account for the public interest or impose fixed benchmarks for delay. While Allen remains the law in this province, the Court applied it considering some of the recent common law developments.

Finding of inordinate delay

Drawing on Chief Justice Hickman's decision in Dawe v. Brown (1994), the Court affirmed that a cumulative delay of five years is inordinate. Mr. Bugden's claim was filed on 14 July 2005 and, using Dawe as the common law five-year benchmark, should have been set down for trial before 2010. Instead, no procedural action was taken between 2015 and 2024. Mr. Bugden's counsel conceded that the delay in his client's case is inordinate, however, he asserted that it was excusable due to the circumstances of the case.

The delay deemed inexcusable

The primary excuse for the delay was the professional misconduct by Mr. Bugden's former lawyer. The Court found that the fact the lawyer was disbarred for treating other clients in a similar manner makes Mr. Bugden's explanation of the delay highly credible. However, it is well established that misfeasance by counsel only "softens but does not excuse the delay." The Court reasoned that plaintiffs select and instruct their counsel, and if a lawyer fails to move matters forward expeditiously, the litigant should bear the burden of his or her choice of counsel and should not expect to have that burden shifted wholly to a defendant who played no role in retaining or instructing the lawyer. The Court noted that Mr. Bugden was not a novice to the world of litigation, having commenced actions in the past, and that a reasonable person would not have tolerated multi-decade delays in resolving a claim. It was certainly within his power to replace his counsel at an earlier date, but he did not.

Prejudice: direct evidence rejected, but inferred from passage of time

Neither the City nor the Union proved direct prejudice. Both cited the deaths of two witnesses, Guy Annable and Elizabeth Rideout, but no affidavit evidence was presented indicating the precise roles that these individuals played in the events or the nature and relevance of their testimony to issues at trial. The City also pointed out that some witnesses had retired, but the Court held that the retirement of a witness does not automatically amount to prejudice, and there was no affidavit evidence indicating that the City had tried unsuccessfully to locate these witnesses. However, the Court found it appropriate to infer prejudice given the extreme passage of time. With almost 25 years having passed since the incident giving rise to the action occurred, and 20 years since the filing of the claim, and the fact-driven nature of the evidence relying on witnesses recalling events from 25 years ago, the Court was prepared to infer prejudice from the passage of time.

The ruling and outcome

Justice Mellor dismissed Mr. Bugden's claim for want of prosecution. The City of St. John's and the International Association of Firefighters Local 1075 were the successful parties. The City and the Union shall have their costs in this application in accordance with Column 3 of the Scale of Costs in the Appendix of Rule 55 of the Rules. No exact monetary amount of damages was determined, as the claim was dismissed on procedural grounds before reaching the merits, and costs were to be calculated according to the applicable tariff scale.