



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



Marcangelo
                de Cotiis v. Viam Holdings Ltd.,









2005 BCCA
            57




Date: 20050124




Docket: CA032391

Between:

Marcangelo
      de Cotiis and Donato de Cotiis

Respondents

(
Plaintiffs
)

And

Viam Holdings
      Ltd., Newcorp Properties Ltd.,

Newcorp
      Properties Partnership, Viam Properties Ltd.,

and Viam
      Properties Partnership

Appellants

(
Defendants
)











Before:



The Honourable
            Mr. Justice Lowry





(In Chambers)




Oral Reasons for Judgment




D.P. Church

I.G. Schidt



Counsel for the Appellant





D.J. Barker



Counsel for the Respondent





Place and
            Date:



Vancouver, British Columbia





24 January 2005




(leave to appeal, stay; costs; application
      for fresh evidence)


[1]

LOWRY
        J.A.
:  Application is made by the defendants
        in this action for leave to appeal an order of Madam Justice Ballance
        made 8 October 2004, dismissing their application for a dismissal of
        the action for want of prosecution.

[2]

The
      action was commenced in November 1997 and no steps were taken thereafter,
      until a notice of intention to proceed was served in August 2003.  The
      judge found that there had been an inordinate, inexcusable delay but that
      the delay did not prejudice the defence of the action.

[3]

The
      applicants contend that the judge erred in two respects.  It is said she
      first failed to properly apply the rebuttable presumption of prejudice
      that arises, and then erred in concluding that the health of a particular
      witness would not preclude him from testifying at the trial.  In the event
      the application is granted, the applicants seek a stay of proceedings in
      a related action pending the hearing of the appeal.

[4]

The
      considerations that govern an application for leave to appeal from an interlocutory
      order are recognised to be the apparent merits of the proposed appeal,
      the significance, if any, of the point to be raised on the appeal to the
      practice or the public, the significance of the point in the action, and
      whether the appeal will unduly hinder the action.  The granting of leave
      is not dictated by any one of these considerations, an over-all assessment
      is required.
Coast Hotels Ltd. v. Northwest Hotels Inc.
,
      [2001] B.C.J. No. 1578, 2001 BCCA 481.

[5]

The
      action arises out of the business dealings of members of the de Cotiis
      family as between themselves.  The family real estate development business
      was operated as a partnership for many years by four brothers, who in the
      proceedings are referred to as Amalio, Inno, Michael and Marc.  Marcs
      sons Donato and Nick have also participated.  A falling out between Marc
      and his son Donato, the plaintiffs in this action, and the other three
      brothers led to litigation in what is referred to as the Partnership Action.  That
      action was tried, and judgment was rendered in 1995, although some matters
      remained outstanding.

[6]

One
      issue that remained outstanding gave rise to the present action commenced
      two years later.  It has to do with an agreement, said to have been made
      in the mid-1980s between Mark and his brothers, that the partnership would
      acquire a warehouse for him and his sons, or extend to them a comparable
      benefit, as is said it did for each of Amalio and Inno.  The agreement
      is said to have been made orally, it was not documented.  The action is
      referred to as the Warehouse Action.

[7]

It
      goes without saying that the proposed appeal is significant to the action,
      and it would not delay its prosecution unduly.  But it appears clear that
      the proposed appeal raises no point that could be said to be of any significance
      to the practice or the public.

[8]

With
      respect to the merits of the proposed appeal, it must be recognised that
      the order the applicants wish to appeal is a discretionary one.  This Court
      would generally not interfere with an interlocutory order made in the exercise
      of discretion unless the discretion was not exercised judicially, or was
      exercised on a wrong principle,
Yang v. Yang,
2000 BCCA 486.

[9]

The
      applicants say that the judge erred in principle when, having recognised
      that a rebuttable presumption of prejudice arises, she failed to give effect
      to it.  They say the respondents advanced nothing to rebut the presumption,
      such that it was not rebutted.  But that does not necessarily follow.  The
      effect of the rebuttable presumption is to reverse the onus that would
      otherwise be borne by the party applying for an order to dismiss an application
      for want of prosecution.

[10]

It
      is for the judge to determine whether, on a consideration of all the evidence
      that has been adduced, it can be said that there is no prejudice to the
      defence that would preclude a fair trial.  The applicant need not prove
      prejudice; a judge must be able to find that there will be no prejudice.  If
      that finding cannot be made, the onus borne by the respondent will not
      have been discharged, and the application may well then succeed.  But where
      a finding that there is no prejudice can be made, the onus is discharged.

[11]

The
      applicants maintain that the case will turn largely on the testimony of
      the individuals who were said to have been involved at the material time,
      extending to more than 15 years ago.  They say the memories will have faded
      with the passage of time, and that the respondents have not established
      that the defence is not jeopardized in the result.

[12]

In
      furtherance of their contention, the evidence that was once available will
      no longer be available at trial.  The applicants say that two key witnesses
      are not available to testify.  The first is Marc, one of the plaintiffs,
      who the applicants asserted before Madam Justice Ballance, was by far the
      more critical for their purpose of the two.  But Marc has long suffered
      from a debilitating mental disease that rendered him unable to testify
      in court proceedings before the Warehouse Action was commenced.  He was
      not able to testify at the trial of the Partnership Action.  As the judge
      concluded, the loss of any evidence attributable to Marcs inability to
      testify in support of his case is not attributable to the delay in the
      prosecution of the action.

[13]

The
      second witness who the applicants say is not now able to testify is Amalio.  The
      evidence establishes that his health has, for a long time, been compromised.  He
      suffers in particular from heart and related problems.  He testified at
      the trial of the Partnership Action and it is said that his condition has
      since then deteriorated, to the point where his ability to testify is now
      doubtful.

[14]

Before
      Madam Justice Ballance the appellants adduced evidence of an incident in
      November 2003 when Amalio suffered a serious infection in his back that
      required emergency surgery. The judge did not, however, consider the evidence
      about his medical condition established that he would be unable to testify.  She
      said:

[48] . . . I would expect that if Amalios health had continued to be
      compromised since December 2003, the defendants would have said so directly
      but they gave no evidence about Amalios present mental status.

[15]

The
      evidence about Amalios medical condition was in some conflict.  The judge
      concluded:

[50]      In weighing the evidence I am not persuaded that Amalios heart
      ailment or any other medical condition would prevent him from testifying
      in the Warehouse Action.  Nor does the evidence indicate that his ailments
      are any more debilitating today in terms of his capacity to give evidence
      than they would have been had the action been pursued diligently.

[16]

If
      leave to appeal is granted, the applicants now propose to seek leave to
      adduce fresh evidence, to the effect that in August 2004 Amalio was hospitalised
      for four weeks for treatment, and he has since had to return to the hospital
      for treatment on a weekly basis.  They would seek to adduce medical evidence
      to the effect that Amalios condition is exacerbated by stress, and an
      opinion to the effect that he should avoid participating in litigation
      proceedings because they could further compromise his medical condition.

[17]

The
      respondents would then seek to adduce evidence to the contrary, first with
      respect to Amalios activities, and then medical evidence to the effect
      that the kind of stress associated with being examined under oath would
      not normally compromise the health of a person with Amalios condition.

[18]

It
      should be noted that while Amalios admission to hospital occurred in August
      2004 after the application before Madam Justice Ballance was argued on
      February 27, May 6 and 7, it occurred before judgement was rendered in
      October 2004 and leave might have been sought to advance further evidence
      then, but no steps were taken to do so.

[19]

With
      respect to the prejudice associated with memories fading over time, Madam
      Justice Ballance said:

[51]      The authorities
      repeatedly make the obvious point that a plaintiffs delay may be detrimental
      to the defence because over time memories fade and relevant evidence can
      be lost.  Even so, however, as noted by Mr. Justice Esson in
Tundra

Helicopters
      Ltd. v. Allison Gas Turbine
, in assessing prejudice the court must
      recognize that in most lawsuits there will be a passage of time and with
      it, the erosion of witnesses memories.

[52]      In this case, there is no evidence as to the identity of any
      potential witnesses for the defence who may have disappeared or are otherwise
      unavailable to give evidence due to the plaintiffs delay.

Madam Justice Ballance concluded:

[59]      I conclude that there is an absence of serious prejudice or
      likelihood of it, to the defendants stemming from the plaintiffs delay
      in pressing this litigation forward.

[20]

I
      see little merit in the proposed appeal.  There does not appear to me,
      to be any basis on which it can be said that the judge erred in principle
      on applying the presumption of prejudice.  She recognized that it applied
      and made a clear finding of fact on the evidence before her that there
      was, in the circumstances, no prejudice to the defence that would justify
      the action being dismissed.  It was open to her to do so in the exercise
      of her discretion.  She neither overlooked nor misunderstood any evidence,
      and her decision cannot be said to have been made on some wrong basis.

[21]

For
      my part, I have difficulty seeing how it can be said in this case, that
      given the lapse of more than 15 years since the material events are said
      to have occurred, the last six years should make any critical difference
      in what any witness may remember.

[22]

I
      do not consider that if it were to be admitted, the proposed fresh evidence
      concerning Amalios ability to testify, being in conflict as it clearly
      is, renders the appeal any more
meritorious
.  The evidence in that
      regard, was in conflict before the judge, and it would remain in conflict.

[23]

In
      an application to dismiss an action for want of prosecution, evidence of
      that kind is, of course, best considered by a judge of the trial court.  It
      is conceded that the application could be renewed if, in fact, there were
      to be compelling evidence that was not available when the application was
      heard.  Indeed, the applicants have pleaded the action should be dismissed
      for want of prosecution, and I do not see any reason, in this case, why
      a further application, based on fresh evidence, could not be heard by the
      trial judge who might well be in the best disposition to assess the significance
      of evidence said to be unavailable by virtue of the passage of time.

[24]

Given
      that there appears to be little merit in the proposed appeal, and that
      it gives rise to no point of general interest to the practice or the public,
      I consider that the application for leave to appeal should be dismissed,
      and there will be an order accordingly.



The Honourable Mr. Justice Lowry


