P.E.I. Supreme Court justice cites unreasonable delay and failure to provide documents
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Supreme Court of Prince Edward Island
A judge of the P.E.I. Supreme Court has dismissed a lawsuit filed against the Prince Edward Island Protestant Children’s Trust by a former resident of the P.E.I. Protestant Children’s Orphanage.
Susan M. Marshall, a resident of the orphanage for 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, commenced an action against the trust in April of 2005.
She claimed damages for various matters alleged to have arisen while she was a resident at the orphanage. Her claims related to actions alleged to have occurred almost 50 years ago.
Supreme Court Justice Gordon Campbell cited several reasons for dismissing Marshall’s action, among them the expiration of the statute of limitations, unreasonable delay and failure to provide documents as requested under the rules of civil procedure.
Campbell noted in his decision that Marshall had concluded in 1996, or at the very latest in 1998, that she had suffered damages or injury from what she alleged happened to her while she was at the 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,” Campbell wrote.
A statement of defence filed in May of 2005 specifically pleaded the statute of limitations, suggesting the action was commenced outside of the limitation period and ought to be struck down for that reason.
Campbell agreed on that point.
Addressing the rules of civil procedure, he said the delay in moving this case forward has been unreasonable in the sense that it has been “inordinate and inexcusable.”
He said the defendants in this action have been trying to obtain specific documentary discovery for a significant period of time.
“The plaintiff (Marshall) 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.”
Campbell noted that 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.”
In the most recent instance, Feb. 13, the court received a brief note from a registered psychologist treating Marshall stating she is not psychologically nor physically strong enough to partake in court proceedings at this time.
In that note, the court was asked to ensure all proceedings in this case were delayed until further notice.
Campbell said 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.
Citing relevant case law Campbell noted that when a lawsuit is commenced there must be a demonstrable commitment on the part of the plaintiff to have the case tried.
That has not happened here, he indicated.
“The plaintiff has cited health reasons as an excuse for delaying for a number of years,” Campbell wrote. “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.”