CI 94-01-79802




BETWEEN:                                                                )    

                                                                        )     Mr. G. Derwin

                                                                        )     for the Applicant

ROMA ELIZABETH HART,                                     )

                                                                        )     Ms. N. Watson

                                                Applicant,     )    for the Respondent

- and -                                                                 )



COLIN ROSS,                                                        )

                                                                        )     Judgment delivered

                                               Respondent.     )    March 8, 2005



SINCLAIR, J. (Orally)

This is an appeal by the applicant of a Master's decision whereby the Master dismissed the applicant's application under the Limitation of Actions Act to be allowed to bring an application for leave to commence an action against the defendant, the respondent in this case.

The background to the action and all the relevant materials are adequately set-out in the Master's reasons and I will not repeat them here.

For the reasons that follow, I have decided that the appeal of the Master's decision will be dismissed and that the decision of the Master will be allowed to stand, dismissing the application for want of prosecution. 

In my view, the reasons of the Master are very thorough and although this is a hearing de novo and the court must exercise its own discretion based upon the nature of the litigation in this case as well as the case law, the court should take into account the reasons of the Master, particularly where no further additional material is filed.

An application under section 14 of the Limitation of Actions Act is inherently a time sensitive application as set out in the Thorogood case.  For that reason, any application brought forward to set aside a limitation period or to be granted leave to commence an action outside of the limitation period must be proceeded with as expeditiously as possible. 

In my view the apparent delay with respect to proceeding with this matter is therefore unreasonable.

The affidavit material filed on behalf of the respondent shows not only apparent and inherent, but real, prejudice to the parties, not only the respondent but also to the applicant.

The documentation shows that there has been a loss of a witness, at least one, loss of memory on the part of those witnesses who are available and also more seriously, loss of documentation necessary for the litigation ultimately at hand to be allowed to proceed properly.

The explanation provided for the delay is not entirely satisfactory.  Surely when faced with a lawyer who does not respond to communications, there must be an onus in an application such as this for counsel to be replaced at an earlier point in time than was done.

In addition, the degree to which the applicant's mental health problems may have stood in the way of her being able to take action in the period up to November 2003 is not clear to me from the material filed.

Therefore, the appeal from the Master will be dismissed.  The Master's order will be allowed to stand. 

On the question of costs, counsel have both spoken to that issue.  The respondent has asked that costs be allowed.  The applicant asks that no costs be ordered.  Normally in a situation like this costs would follow the successful party. 

I take into account the difficulties faced by the applicant throughout the period of time related to her mental health.  I am advised that she has few of any resources and I also take into account that much of the delay appears to have been the fault of her counsel at the time, not Mr. Derwin I point out.

Therefore, I am going to exercise my discretion and not award any costs with respect to this matter.  In doing so, I do want it clear that I am not attributing any fault whatsoever to the respondent, but I am exercising my discretion on the basis that the applicant does not have very much in the way of resources, in addition to her mental health difficulties, and the fact that the delay in my view is attributable to her counsel.

That is my decision with regard to the matter this morning. 

Thank you, counsel.