SUPREME COURT OF PRINCE EDWARD ISLAND

Transcription

1 SUPREME COURT OF PRINCE EDWARD ISLAND Citation: PEI Protestant Children s Trust and Province of PEI and S. Marshall 2014 PESC 6 Date: Docket: S1-GS Registry: Charlottetown Between: And: And: Prince Edward Island Protestant Children s Trust Province of Prince Edward Island Ms. Susan M. Marshall Defendant (Moving Party) Defendant Plaintiff (Respondent) Before: The Honourable Justice Gordon L. Campbell Appearances: David W. Hooley, Q.C. - solicitor for Moving Party (Defendant) Place and date of hearing Charlottetown, Prince Edward Island February 24, 2014 Place and date of judgment Charlottetown, Prince Edward Island February 25, 2014

2 Page: 2 Practice - Summary Judgment - Statute of Limitations - Expiration of limitation period - unreasonable delay - Failure to provide documents as required by Rule 30 - Prejudice to defendant - Striking out action STATUTES REFERRED TO: Statute of Limitations, RSPEI 1988, Cap. S-7. CASES CONSIDERED: Oliver v. Severance, 2005 PESCTD 7; Johnson v. Charlottetown Area Development Corp PESCTD 40; Connick v. Ramsay et ors., 2008 PESCTD 42. RULES REFERRED TO: Prince Edward Island Rules of Civil Procedure, Rule 24.01; Rule 30; Rule 30.03(1); Rule 30.02; Rule (2). Campbell J. Introduction [1] The plaintiff, Susan Marshall, was a resident of the Prince Edward Island Protestant Children's Orphanage for approximately four months in the first year of her life and then again for a period of two years between the ages of five and seven. Ms. Marshall commenced an action against the Prince Edward Island Protestant Children's Trust on April 5, 2005, claiming damages for various matters alleged to have arisen while she was a resident at the orphanage. Her claims relate to actions allegedly occurring almost 50 years ago. [2] The defendant Trust sought to have the plaintiff's action consolidated with another similar action brought by multiple parties whose claims arose out of the same set of facts. The plaintiff opposed such a consolidation. The action against the Trust has continued on its own, with very limited progress. [3] The defendant Trust has made a motion for summary judgment based on three grounds, namely, (i) the discoverability rule, (ii) delay, and (iii) the failure of the plaintiff to produce documents pertinent to the matter. The "discoverability" rule [4] The plaintiff had concluded in 1996, or at the latest, in 1998, that she had suffered damages or injury from what she alleged happened to her while she was at the Mount Herbert Orphanage. However, she did not issue a statement of claim until April 5, 2005, more than six-years after any cause of action would have arisen, meaning the action would be statute barred.

3 Page: 3 [5] Ms. Marshall was featured in an article published in the Charlottetown Guardian newspaper on March 16, 1996 relating to issues surrounding the treatment of former residents of the Mount Herbert Orphanage. Further, on October 10, 1998, Ms. Marshall wrote to the Prince Edward Island Protestant Children's Trust Fund regarding various issues and in that correspondence she stated: For the past several years I have been in therapy to work through the loses [sic] and crisis situations and while working through them is when I discovered that I had issues surrounding my child-hood [sic] experiences while placed in Mount Herbert Orphanage. Many of the events that took place while placed under the care of the government have indeed done a great deal of damage to my well-being and normal development.... Many of the events that occurred in the orphanage caused such emotional abuse I'm now just beginning to live the life that I was robbed of. [6] The Statement of Defence filed on May 11, 2005, specifically pleaded the Statute of Limitations, RSPEI 1988, Cap. S-7. Whether the action falls under s. 2. (1) (d), a two-year limitation period), or s. 2. (1)(g), (a 6 year limitation period), the action was commenced outside of the limitation period and ought to be struck for that reason alone. [7] Jenkins J., as he then was, reviewed the matter of summary judgment and limitation periods in his decision in Oliver v. Severance, 2005 PESCTD 7, at paras (rev'd on other grounds). He concluded, "A plaintiff has the burden of proving that the cause of action arose within the limitation period." In Johnson v. Charlottetown Area Development Corp., 2005 PESCTD 40, Taylor, J., concluded that an action could be dismissed on a summary judgment application when it is shown the action was commenced beyond the limitation notwithstanding there may be other issues, because the failure to commence an action within the limitation period is conclusive of the entire action. The facts of this case clearly demonstrate the cause of action was known, at the latest, October 10, The action was not commenced until April 5, [8] I am satisfied that the action was commenced after the expiration of the limitation period set out in the Statute of Limitations, and on that basis I do hereby strike the plaintiff's statement of claim.

4 Page: 4 [9] The defendant also moves to dismiss the plaintiff s action on the grounds of delay and the failure to produce documents. While it is not strictly necessary to review those arguments, given my decision to strike out the statement of claim on the first ground, I will proceed to consider the other arguments in the alternative. Delay [10] The defendant moves to dismiss the plaintiff's action for delay pursuant to Rule of the Rules of Civil Procedure, which states as follows: A defendant who is not in default under the rules or an order of the court may move to have an action dismissed for delay where the plaintiff has failed,... (c) to set down the action for trial within six months after the close of pleadings; [11] The pleadings in this matter closed on May 11, [12] The delay in moving this case forward has been unreasonable in the sense that it has been inordinate and inexcusable. A complete analysis of the question of dismissing an action for delay was undertaken by Cheverie, J. in Connick v. Ramsay et ors., 2008 PESCTD 42, and I adapt the reasoning employed therein. [13] The defendant has been trying to obtain specific documentary discovery for a significant period of time. The plaintiff has not complied with those requests in any meaningful way and the defendant has been unable to complete its documentary review or to proceed to oral examination of discovery. The matter has gone on for a very long period of time and has advanced very little. [14] On several occasions over the past four years on the eve of a court proceeding, including an intended oral discovery, the matter has been delayed virtually by the unilateral declaration of either a registered nurse, a medical doctor, or a registered psychologist, depending on the occasion. On each occasion the medical note has expressed no certainty with respect to when the plaintiff would be able to proceed with the litigation. [15] In December 2010, it was indicated by her treatment provider that the question of her ability to attend discoveries would be reassessed three months following that

5 Page: 5 date. In March 2011, a follow-up report by a different practitioner stated, "Ms. Marshall remains unable to attend any legal proceedings due to her medical conditions. At this time, I am unable to provide you with information as to when Ms. Marshall may be able to present to your court. It will be necessary for Ms. Marshall to undergo a psychiatric evaluation." That evaluation was scheduled for June 14, [16] In September 2011, a psychiatrist treating Ms. Marshall suggested a four-month delay would be in order but went on to state, "Concerning her psychiatric problems, these may introduce difficulty no matter how long the delay, seeing that there is not likely to be any significant change for a long time. Thus, her emotional reactions to the examination for discovery, such as anger or crying, might be excessive for the situation." [17] Finally, on February 13, 2014, the court received a brief note from a registered psychologist treating Ms. Marshall stating, "It is my opinion that she is not psychologically nor physically strong enough to partake in court proceedings at this time. Please ensure that all proceedings in this case are delayed until further notice from Ms. Marshall in care of me." [18] It has been impossible for the defence in this case to assess the issues raised or the complexity of those issues because of the lack of documentary disclosure by the plaintiff and lack of opportunity to discover the plaintiff. When an action is commenced, as Cheverie J., stated in Connick, supra, the "lawsuit requires a demonstrable commitment on the part of the plaintiff to have the case tried."... "The plaintiff is obliged to prosecute that action with due diligence. The plaintiff cannot simply sit on its hands and state he is waiting for some event to occur while time passes, memories fade, and documents are lost. Rather the plaintiff must take all reasonable steps to move the action to a conclusion." [19] The plaintiff has cited health reasons as an excuse for delaying for a number of years. There has been no demonstrated effort to respond to the repeated requests for the completion of the exchange of documents or to proceed to oral discovery. For example, medical records or other documents relating to the plaintiff s care and upbringing since leaving the orphanage at seven years of age have not been provided. Are those documents being preserved? Have they already been lost? In addition to the issue of fading memories and the potential for loss of documents, as time passes, potential witnesses will be either losing their capacity to testify, or will die, creating substantial prejudice for the defendant. The plaintiff delayed beyond the limitation period in commencing her action and has delayed since then in bringing her action to trial. While Ms. Marshall periodically corresponds with defense counsel, she has demonstrated no willingness or ability to prosecute her claim.

6 Page: 6 [20] I am satisfied that the plaintiff's statement of claim ought to be struck out for delay pursuant to Rule 24.01, based on the plaintiff s inactivity and the increasing prejudice to the defendant. Failure to produce documents - Rule 30 [21] The Rules of Civil Procedure provide that an affidavit of documents shall be served on every other party within ten days of the close of pleadings (Rule 30.03(1)). The content of the affidavit of documents is governed by Rule and in particular provides that every document relating to any matter in the possession, control or power of a party to an action be produced for inspection upon request as provided in the Rules. [22] The defendant has repeatedly asked for specific documents or types of documents and they have not been forthcoming and no sincere effort to obtain those documents has been demonstrated. The plaintiff has not been responsive and has acted in a manner that reflects a disregard for court procedures and the litigation process. While the plaintiff periodically sends a cursory medical note, there has been no effort in the interim periods to address the outstanding litigation issues, which leaves the defendant in a position of uncertainty with respect to the case it must meet and allows the passage of time to erode the defendant's ability to mount a proper defense. [23] Rule (2) provides that where a party fails to serve an affidavit of documents for inspection in compliance with the Rules, the court may dismiss the action. In the circumstances of this case the defendant has been prevented from moving forward in an orderly manner with respect to either mounting a full defense or, alternatively, moving on with its other intended activities. The plaintiff's failure to actively prosecute her own claim, or to find some method to respond to the process set out in the Rules, is, in and of itself, prejudicial to the defendant and should not be allowed to continue. I am satisfied the plaintiff's claim ought to be dismissed pursuant to Rule (2) of the Rules of Civil Procedure. [24] For all of the foregoing reasons, I do hereby dismiss the claim of Susan Marshall against the Prince Edward Island Protestant Children s Trust, set out in her statement of claim dated April 5, February 25, 2014 Campbell J.