[4]         In February 1994 the plaintiff gave notice of his disability to the defendant and applied for benefits.  He received benefit payments under the policy from March 29, 1994 to January 31, 1995 when the defendant advised him that it was discontinuing the payment of benefits in reliance on the opinion of Dr. C.W. Beattie.  Dr. Beattie had examined the plaintiff in December, 1994 at the request of the Aetna Life Insurance Company (“Aetna”), another of the plaintiff’s disability insurers.

[5]         At the time the plaintiff commenced this action, he also commenced actions against his other disability insurers, Aetna and Empire Life Insurance Company (“Empire”).  His solicitors in all three actions were Singleton Urquhart.  He had previously retained Dickson Murray to represent him in an action against the doctor who performed the laser eye surgery but due to a conflict was required to retain separate counsel for his disability claims.

[6]         The steps taken in this action after issuance of the writ and statement of claim in October, 1995 and before the filing of the notice of motion to dismiss on January 20, 2002 are as follows:

(a)  statement of defence filed December 14, 1995;

(b)  lists of documents exchanged in February and March, 1996;

(c)  examination for discovery of the plaintiff commenced in August, 1996 and adjourned;

(d)  the defendant’s solicitors wrote requesting responses to the 30 outstanding requests from the plaintiff’s discovery, on February 20, 1997.

[7]         On May 12, 1997, Singleton Urquhart withdrew from the plaintiff’s disability claims files.  The plaintiff says that at the time the cost of running four actions simultaneously was proving too much for his finances.  His solicitors also cited a concern regarding recent case authority affecting the plaintiff’s ability to recover from his disability insurers. 

[8]         In January 1998 the plaintiff retained Bruce Gordon in all four actions.  Mr. Gordon delivered a notice of change of solicitor in May 1998.  On June 8, 1998 he filed a notice of intention to proceed which was served on the defendant.  The plaintiff says that Mr. Gordon’s initial strategy was to keep the malpractice action in abeyance pending a resolution of one or more of the disability claims.  This proved unworkable when, from June 1998 on, defence counsel in the malpractice action insisted on progress in that action.  The plaintiff says that he understood that Mr. Gordon would be working on the actions against the disability insurers as well.

[10]    The plaintiff says that from late 2000 onwards he made regular inquiries of Mr. Gordon as to how matters were progressing on the actions against his disability insurers.  In September 2001 he contacted Don Holubitsky, hoping to retain him in Mr. Gordon’s place.  The plaintiff sent his documents to Mr. Holubitsky for review in late November or early December 2001.

[11]    On November 21, 2001 Mr. Gordon filed and served a further notice of intention to proceed.

[12]    In December 2001 Aetna delivered an application for an order dismissing the plaintiff’s claim for want of prosecution.  Empire delivered a similar application.

[13]    On or about January 4, 2002, the defendant served this application.  On January 22, 2002, the defendant filed the application with a notice of hearing for January 24, 2002.  Mr. Gordon requested an adjournment of the defendant’s application on the basis that he needed time to obtain instructions from the plaintiff who was out of town.  The defendant’s solicitors consented to an adjournment.  On February 15 and 25, 2002 the defendant’s solicitors wrote seeking the plaintiff’s response to the motion.  On November 12, 2002 the defendant’s solicitors again wrote requesting a response to the motion.  Mr. Gordon delivered a response on November 22, 2002 opposing the relief sought. 

[14]    The plaintiff says that he understood that, although Mr. Gordon had retained Mr. Critchley on the Aetna application, Mr. Gordon was to continue to deal with this application.  Mr. Gordon says that he sought an agreement from the defendant’s solicitors to hold this application in abeyance and be bound by the result of the Aetna application.  This agreement was apparently never confirmed.  In January, 2003, Mr. Critchley was retained on this application and a date for the hearing was set.

[15]    No trial date has been set in this action.

Discussion

[16]    The first question is whether there has been inordinate delay.  Ms. Nelson for the defendant submits that the delay has been inordinate whether calculated using the date the cause of action arose or the date that the action was commenced.  The former, Ms. Nelson submits, is a delay of nine years; the latter a delay of almost eight years. 

[17]    Mr. Critchley concedes that the action was not set for trial as expeditiously as it should have been but submits that, in all the circumstances, the delay has not been inordinate.  He submits that given the applicable limitation period, the plaintiff had until February 2001 to commence his action against the defendant.  Assuming that any trial would be at least one, if not two, years after the filing of the writ, the delay experienced here cannot be viewed as inordinate.  He cites Mortel Factory Sound Enterprises Ltd. v. Able Bailiffs Ltd. et al (unreported, January 25, 1996, Victoria Registry 90/0201).

[18]    Assuming that the relevant limitation period is six years, it is true that the plaintiff could have waited until February 2001 to commence the action.  However, he did not.  He commenced his action soon after the cause of action arose.  Litigation, once commenced, is governed by the Rules of Court, one object of which is to secure the “just, speedy and inexpensive determination of every proceeding on its merits”: Rule 1(5).  A plaintiff is obliged to proceed with reasonable dispatch: Dressew Supply Ltd. v. Laurentian Pacific Insurance Co., [1993] B.C.J. 411 (B.C.S.C.) at para. 14.  In my view, it would not be open to a plaintiff to commence an action and then do nothing for the remainder of the limitation period.

[19]    Here the pleadings were closed in December 1995.  There has been no substantive activity on the file since August 1996 when the plaintiff was examined for discovery.  This is a delay of more than six years.  The only thing that the plaintiff has done is to obtain reports from Dr. Findlay and Dr. Beattie.  In my view, it is fair to characterize the delay as inordinate. 

[20]    Is the delay excusable?  The plaintiff attributes the delay to a number of things:  from 1997-98, the cost of running four actions simultaneously; from 1997-2000, his inability to obtain medical evidence in his favour because of the malpractice action; and from 1998 to present, the failure of his solicitors to advance the action despite the plaintiff’s frequent inquiries as to progress.

[21]    Ms. Nelson for counsel for the defendant submits that the plaintiff chose delay when he was unable to obtain medical opinions to support his claim and when he was advised by counsel that his case might be impeded by recent case law.  She submits that the plaintiff’s difficulties with timely action by his counsel are a consistent pattern throughout the conduct of this action.

[22]    Mr. Critchley submits that the delay was caused by the negligence of the plaintiff’s solicitors and impecuniosity and should not be viewed in the same way as a delay to obtain tactical advantage: Irving v. Irving (1982), 38 B.C.L.R. 318 at 323 (C.A.), at para. 11. 

[23]    There is no objective evidence of the plaintiff’s inability to finance the litigation, simply his statement that in 1997 he had reached a point where he was no longer able to incur the expense of running four actions simultaneously.  I note that three of these actions were against his disability insurers and involved the same facts.  As to the failure of his solicitors to move the action along, it appears that from 1998 to September 2000, Mr. Gordon’s inaction in this matter resulted from focussing on the malpractice action.  No explanation is given for his inaction following the consent dismissal in September 2000.  The plaintiff says that he contacted Mr. Gordon every week or so and was advised by Mr. Gordon that he was busy and that he ultimately would get to dealing with the plaintiff’s matters.  I accept the defendant’s submission that the plaintiff must have been aware that the action was not progressing.  However the plaintiff seems to have accepted Mr. Gordon’s assurances at least for a period.  In late 2001 the plaintiff decided to retain another lawyer.  Shortly after that, Aetna, followed by Empire and the defendant, served their applications to dismiss for want of prosecution.  Further delay followed with Mr. Gordon seeking concessions from the defendant, ending with new counsel being retained on behalf of the plaintiff to deal with this application.

[24]    Mr. Critchley submits that, in determining whether the delay is excusable, the court can take into account the nature of the case and the nature of the defendant.  He submits that the defendant is “highly sophisticated with respect to litigation of this kind, so much so that it is part of their ordinary business”, and accordingly, the delay may be excusable given that the risk of prejudice was negligible:  Tundra, supra, paras. 26 and 29.  Here the prejudice alleged by the defendant is “prejudice at large” (Irving, supra, para. 16), including the passage of time and its effect on the evidence and the defendant’s ability to evaluate the plaintiff’s claim of disability.  There is no evidence of specific prejudice put forward by the defendant. 

[25]    I conclude that while the plaintiff’s focus on the malpractice action may not excuse the delay until 2000, the plaintiff did make efforts to move this action along following the dismissal of his malpractice claim by obtaining medical reports on his condition.  It appears that unfortunately he did not obtain timely, or indeed any, assistance from his solicitors.  In all the circumstances, I conclude that the delay, while inordinate, is excusable. 

[26]    It follows that the defendant’s application should be dismissed.  I will say that even if I had found the delay to be inexcusable, I would have dismissed the defendant’s application.  In my view, this is not a situation where the delay has resulted in prejudice to the defendant such that there is a risk that a fair trial of the issue will not be possible.  I conclude that any presumption of prejudice was rebutted by the plaintiff in reliance on the overall circumstances of this action.

[27]    The defendant’s application is dismissed.  Costs to the plaintiff in the cause.

“Master S. Scarth”