





COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



Pacific
                Hunter Resources Inc. et al. v. Moss

Management
                Inc.,









2004 BCCA
            40




Date: 20040127





Docket: CA029258

Between:

Pacific
      Hunter Resources Inc., Jane Rome
in her capacity as Executrix under the last
Will and Testament of Bruce Rome (deceased)

Appellants

(
Plaintiffs
)

And

Moss Management
      Inc.

Respondent

(
Defendant
)












Before:



The Honourable
            Madam Justice Southin





The Honourable
            Madam Justice Rowles





The Honourable
            Mr. Justice Smith









A. Winstanley



Counsel for the Appellant





T. Delaney



Counsel for the Respondent





Place and
            Date of Hearing:



Vancouver, British Columbia





23 September 2003





Place and
            Date of Judgment:



Vancouver, British Columbia





27 January 2004









Written
              Reasons by
:





The Honourable
            Mr. Justice Smith





Concurred
              in by:





The Honourable
            Madam Justice Southin
The Honourable Madam Justice Rowles





Reasons for Judgment of the Honourable Mr. Justice Smith:

[1]

The
        appellants appeal an order of Madam Justice Martinson of the Supreme Court
        pronounced in Chambers on December 10, 2001, dismissing their action for
        want of prosecution pursuant to Rule 2(7) of the
Supreme Court Rules
.  As
        well, they appeal her order that they pay the respondents costs, including
        double costs by way of increased costs from June 25, 2001, the date that
        the respondent delivered a so-called Calderbank letter to the appellant
        offering to waive its costs if the appellants would consent to a dismissal
        of the action.  The judgment of the Chambers judge on costs is reported:
      see 100 B.C.L.R. (3d) 164, 16 C.P.C. (5th) 266, 2002 BCSC 396.

[2]

The
        principles relevant to the application to dismiss the action are not
      in dispute.  In
Irving v. Irving
(1982), 38 B.C.L.R. 318
      (C.A.), Seaton J.A. set them out at 321: it must be shown that there has
      been inordinate
        delay, that the inordinate delay is inexcusable, and that the delay caused
        serious prejudice or is likely to cause serious prejudice to the defendant.  Seaton
      J.A. continued, at 328:

The
        demonstration of inordinate delay, inexcusable delay and serious prejudice
        does not lead necessarily to dismissal.  Those three factors are only the
        primary considerations; all of the circumstances must be considered.  It
        is still for the courts to decide whether or not on balance justice
        demands that the action should be dismissed: Salmon L.J. in
Allen
        v. Sir Alfred McAlpine & Sons Ltd.,
supra.
All of the statements of law are
        subject to the overriding principle that essential justice must be done
.
        (See Freedman J.A. (as he then was) in
Ross. v. Crown Fuel Co.

(1962),
      41 W.W.R. 65 at 88, 37 D.L.R. (2d) 30 (Man. C.A.).)

[Emphasis added]

[3]

The
        conduct of the defendant in the face of unreasonable delay by the plaintiff
        is relevant in the assessment of where the balance of justice falls.  As
        Diplock L.J. said, in
Allen v. Sir Alfred McAlpine & Sons Ltd.
,
      [1968] 2 Q.B. 229, at 260:

Since the power to
        dismiss an action for want of prosecution is only exercisable upon the
        application of the defendant, his previous conduct in the action is always
        relevant.  So far as he himself has been responsible for any unnecessary
        delay, he obviously cannot rely upon it.  But also,
if after the plaintiff
        has been guilty of unreasonable delay the defendant so conducts himself
        as to induce the plaintiff to incur further costs in the reasonable belief
        that the defendant intends to exercise his right to proceed to trial notwithstanding
        the plaintiffs delay, he cannot obtain dismissal of the action unless
        the plaintiff has thereafter been guilty of further unreasonable delay
.
        For the reasons already mentioned, however, mere non-activity on the part
        of the defendant where no procedural step on his part is called for by
        the Rules of Court is not to be regarded as conduct capable of inducing
        the plaintiff reasonably to believe that the defendant intends to exercise
      his right to proceed to trial.

[Emphasis added]

[4]

In
        my view, the defendants conduct is the critical factor here and, for the
      reasons that follow, I would allow the appeal.

[5]

The
        action arises out of a letter signed on May 8, 1991, by Bruce Rome on
      behalf of Pacific Hunter and by Peter Richards on behalf of Moss Management.  Pacific
        Hunters position is that the letter is an enforceable agreement for the
        exploitation of some valuable tailings at an abandoned copper mine.  In
        Pacific Hunters view, it performed its obligations under the agreement
      and became entitled to a 60% interest in the tailings.

[6]

Mr.
        Richards took a different view of the effect of the letter.  As a result
        of a discussion they had in July 1991, Mr. Rome advised Mr. Richards
      that he intended to commence an action.

[7]

Shortly
        thereafter, Moss Management, through Mr. Richards, entered into an agreement
      with an Alberta public company granting it the right to exploit the tailings.

[8]

There
        was sporadic communication between Mr. Rome and Mr. Richards over the
      next two years in regard to their dispute and, in 1993, Mr. Rome hired
      a solicitor,
      Mr. Howell, to deal with the matter.

[9]

Following
        some further preliminary communications, on February 15, 1994, Mr. Howell
        commenced the action that underlies this appeal.  The statement of claim,
        filed on April 24, 1994, pleads the letter agreement and performance by
        Pacific Hunter of its contractual obligations.  It alleges that Moss Management
        repudiated the agreement by selling the right to exploit the tailings to
        the Alberta company.  As well, it alleges that Moss Management wrongfully
        appropriated the plaintiffs camp and equipment left on the site and that
        it wrongfully used the plaintiffs samples and geological data to facilitate
        the sale to the Alberta Company.  It seeks damages for breach of contract
        and reimbursement for expenses incurred in reliance on the alleged agreement,
      or specific performance of the alleged agreement.

[10]

On
        March 31, 1995, some eleven months later, Moss Management filed its statement
        of defence through its solicitor, Mr. Delaney.  The statement of defence
        denies that an enforceable agreement came into being between the parties.  Alternatively,
        it alleges that Pacific Hunter did not perform its obligations under the
        agreement and that performance was a condition precedent to Moss Managements
        liability.  As well, it denies that Moss Management appropriated Pacific
      Hunters property.  It seeks dismissal of the action.

[11]

In
        September and October, 1995, the parties commenced oral and documentary
        discovery processes.  Mr. Howell examined Mr. Wolrige, the president of
        Moss Management, for discovery and Mr. Delaney examined Mr. Rome.  Thereafter,
        by letter of November 7, 1995, to Mr. Howell, Mr. Delaney set out at length
        a number of requests for information and for documents arising out of his
        examination of Mr. Rome.  Mr. Delaney wished to examine Pacific Hunters
        solicitors file and asked, as well, whether privilege would be waived
      or whether he would have to make an application for production.

[12]

The
        next steps in the action occurred on July 29 and July 30, 1996, when
      Mr. Howell filed applications relating to documentary discovery and Mr.
      Delaney
        countered with applications for further documentary discovery and further
        examination of Mr. Rome for discovery.  Within a couple of days, counsel
        agreed to adjourn their respective applications on terms that included
        the provision of further documentary discovery by Pacific Hunter within
      two weeks.

[13]

There
        the matter sat until January 2001, when Mr. Winstanley was hired by Mr.
      Rome to replace Mr. Howell as counsel for the plaintiff.

[14]

The
        status of matters at this point in time was as follows.  Pleadings were
        closed.  Examinations of Mr. Rome and Mr. Wolrige had been conducted.  The
        plaintiffs had delivered a list of documents.  As well, they had agreed
        to produce further documents, to provide certain information requested
        on Mr. Romes examination for discovery, and to deliver certain particulars
        requested, all by August 16, 1996.  As well, the plaintiffs were either
        to deliver their solicitors file or to advise Mr. Delaney that an application
        for production would be required.  Further, Mr. Delaney was to be at liberty
        to examine Mr. Rome further for discovery upon receipt of the information
        and documents agreed upon.  On the other hand, the defendant had not delivered
        a list of documents.  Cross-applications concerning documentary discovery
      stood adjourned generally by agreement of counsel.

[15]

I
        will next canvass the reasons for the hiatus of three and one-half years
      from mid-1996 to the end of 2000.

[16]

In
        1996, Mr Howell developed a painful and debilitating arthritic disease
        that ultimately required two hip replacement surgeries, one in the fall
        of 1996 and the second in October 1997.  For several months while he was
        recovering from these surgeries he was unable to carry on his practice.  As
        a result, his attention to this litigation waned.  Mr. Rome and Mr. Howell
        were good friends, and Mr. Romes evidence was that he awaited Mr. Howells
        recovery during the period from 1996 to 1998.  He deposes that Mr. Howell
        had acted for him in a number of matters and he did not want to sever their
        professional relationship.  He says further that, beginning in the summer
        of 1998 and throughout the next year, he telephoned Mr. Howell from his
        home in Kamloops almost monthly and that Mr. Howell assured him that
        he would get on with this matter.  While the Chambers judge expressed some
        doubt about the frequency with which Mr. Rome communicated with Mr. Howell,
        she accepted that several months of the delay were the result of Mr.
        Howells medical condition.  I take it that she meant that the delay
        from the fall of 1996 until the early part of 1998 was, at least in part,
        as
      a result of Mr. Howells inability to attend to the litigation.

[17]

The
        Chambers judge found that the rest of the delay was due to the inaction
        of Mr. Rome.  He did not obtain the documents that he was required to produce.  She
      concluded:

[36]  ...In any event,
        Mr. Rome knew by the summer of 1999 that he needed new counsel.  He knew
        Mr. Winstanley could not act, but did nothing, without explanation, for
        at least another year.  The delay was substantially caused by Mr. Rome.  It
      is inexcusable.

[18]

The
        reference to Mr. Winstanleys initial inability to act for Mr. Rome requires
        comment.  Mr. Rome sought to retain Mr. Winstanley in late 1999 but Mr.
        Winstanley refused on the basis that he had a conflict of interest.  Mr.
        Winstanley was representing Tom Buchan, a former principal of Prospectors
        Airways Consolidated Co. Ltd., concerning a prospective claim in respect
        of the tailings on behalf of Prospectors Airways against Mr. Richards,
        Mr. Wolrige, and Moss Management.  The factual underpinning of that matter
        is outlined in an affidavit sworn by Mr. Buchan in this action in support
        of Pacific Hunters position on the proposed summary trial to the effect
        that Moss Management was a trustee of the tailings in question for Prospectors
        Airways and that Messrs. Richards and Wolrige were trustees, not beneficial
        owners, of their shares in Moss Management.  Mr. Buchan says that he is
        one of four trustee-managers, including Richards and Wolrige, of Prospectors
        Airways assets and that he has a veto over any dealings with those assets.  There
        appears to be documentary support for these allegations.  Mr. Buchan
        deposes further that he understood that Moss Management was dealing with
        Pacific
        Hunter in its capacity as trustee of the tailings; that, in 1995, Mr.
        Richards acquired control of Prospectors Airways and, in effect, squeezed
        him out;
        and that Moss Managements disposition of the tailings to the Alberta
        company was made without his knowledge or consent in violation of the
      trust agreement.

[19]

Mr.
        Romes evidence is that, after he was turned down by Mr. Winstanley,
      he continued to contact Mr. Howell from time to time but that Mr. Howell
      did
        nothing to advance the litigation.  Finally, Mr. Rome says, in September
        2000 he spoke with Mr. Buchan who agreed to instruct Mr. Winstanley to
        take over this litigation for Mr. Rome.  Mr. Winstanley agreed to do so
        in late 2000 and filed a notice of change of solicitor in January 2001.  Since
      then, Mr. Winstanley has pursued the action diligently.

[20]

It
        is noteworthy that when Mr. Winstanley became involved, Mr. Delaney did
        not complain of delay or of prejudice to his client.  Rather, he insisted
        that Mr. Winstanley must file a notice of intention to proceed before taking
        further steps.  Mr. Winstanley acknowledged this suggestion in his letter
      to Mr. Delaney of January 18, 2001, which said:

Enclosed herewith
      for delivery please find filed Notice of Change of Solicitor in this matter.

You mentioned in our
        telephone conversation that a Notice of Intention to Proceed would be
      in order.  From my review of the file, plaintiff prepared and delivered
      a List of Documents dated May 15, 2000, which would be a step taken within
      the last year, and obviate the need for notice.

At present, I am reviewing the file with a view to possibly amending
        the Statement of Claim.  Until that is done, it is probably premature to
        bring to your attention that the Defendant has not provided its List of
        Documents in response to a Demand dated October 25, 1995.  Once the pleadings
        are clarified, I will, however, be expecting your client's prompt compliance
      with this Demand.

[21]

By
      letter of January 22, 2001, Mr. Delaney responded as follows:

We are in receipt
        of your letter of January 18, 2001, together with your Notice of Change
      of Solicitor.

You have stated that
        the Plaintiff prepared and delivered a List of Documents dated May 15,
        2000 in this matter.  We understand that there may have been several different
        pieces of litigation and perhaps you have seen a List of Documents in one
        of the other actions.  We have no record of having received a List of Documents
        anywhere close to May, 2000.  If we are mistaken in that regard and you
        have an acknowledgement of delivery signed by the writer, we would be
      pleased to view it.

Otherwise,
we remain
          of the view that your client must deliver a Notice of Intention to Proceed
        before any further steps may be taken
.

A review of our file
        indicates that the Plaintiff's List of Documents was dated May 17, 1994.  We
        have no record of having received a Demand for Discovery of Documents from
        your client.  Moreover, we made a Demand for Particulars on September 7,
        1995.  Our last note of any correspondence from the Plaintiff in this matter
        is a letter from Mr. Howell to the writer dated August 1, 1996.  At that
        time, we had filed a motion requiring Mr. Rome to attend a further discovery
        and to produce various documents.  The correspondence with Mr. Howell indicates
        that the parties had agreed to adjourn the motion generally.  We have
        received no correspondence from Mr. Howell or your client since that
      time.

[Emphasis
      added]

[22]

Mr.
        Winstanley acceded to Mr. Delaneys position and, on January 29, 2001,
      he wrote:

Enclosed herewith
      for delivery please find the following:

(1)   Notice of Intention
      to Proceed,

(2)   Demand for Discovery
      of Documents, and

(3)   Notice to Produce
      Documents.

As promised, I have
        also enclosed for your review a draft of a proposed Amended Statement
      of Claim.  Once we are outside the 28 days, my clients will be bringing
      on an application both to amend and to add Mr. Richards as a defendant.

In the meantime, my
        office is working on a proper List of Documents.  As you may imagine, we
        are being slowed down by the detail of the documents showing the expenses
        occurred on the Tailings.  Nonetheless, I would expect to have a comprehensive
      List to you by next week.

Awaiting your response to the proposed amendments, I remain...

[23]

The
        amendments proposed by Mr. Winstanley would have added Mr. Richards and
        Mr. Wolrige as defendants and would have made claims against them and Moss
        Management on the basis of fraudulent or negligent misrepresentation concerning
        their right to deal with the tailings and, as well, claims that they benefited
        personally from the sale of the tailings to the Alberta company, presumably
      in breach of trust.

[24]

Mr.
        Delaney responded on February 5, 2001, mentioning the delay for the first
      time.  His letter reads as follows:

We are in receipt
      of your letter of January 29, 2001.

We do not intend
          to provide you with a response to the proposed amendments until we have
          actually seen your motion materials for the application to add Mr. Richards
          and amend the Statement of Claim
.  Presumably
          your motion materials will explain the inordinate delay with respect
          to both the prosecution of this matter, and the reasons for not adding
        these causes of action and Mr. Richards as a party at the outset.

Finally,
it is
          our view of the law that our client need not respond to the demand for
          documents until 49 days have expired
.  In other words, the demand
          does not start to run until the expiration of 28 days from delivery of
          the Notice of Intention to Proceed.  In fact,
strictly speaking, it
          is our position that your client is not entitled to deliver a Demand
          for Discovery of Documents and to otherwise proceed with the litigation
          until after 28 days have expired from delivery of the Notice of Intention
        to Proceed
.

[Emphasis added]

[25]

Thus,
        even at this point Mr. Delaney was not treating delay as dispositive
      but was expecting Mr. Winstanley to account for the delay.  It does not appear
        that Mr. Delaney was contemplating an application to dismiss the action
        for want of prosecution.  By his words and his conduct, he clearly encouraged
      Mr. Winstanley to continue in his attempts to move the action forward.

[26]

On
        March 13, 2001, Mr. Winstanley delivered a notice of motion for orders
        adding Mr. Richards and Mr. Wolrige as defendants and amending the statement
        of claim, his outline of argument on the motions, and a supporting affidavit
      of Mr. Rome sworn in March 2001.

[27]

Mr.
        Delaney responded with a lengthy letter dated April 6, 2001.  The letter
      begins:

We are in receipt of your letter of April 5, 2001.  We have been working
        on a response and, subject to what will be set out below, we could provide
      you with materials next week.

The letter of April 5, 2001, which is referred to in
        this passage, was not marked in evidence and it is not clear what it was
        that Mr. Delaney was working on or what materials he expected to be able
      to provide to Mr. Winstanley.

[28]

Thereafter
        in the letter, Mr. Delaney demanded particulars of the proposed amendments;
        expounded at length on the law governing repudiation of contracts; objected
        that the information supporting the proposed amendments was privileged
        and inadmissible; asked if Mr. Winstanley would consent to his cross-examining
        himself and Mr. Rome on his supporting affidavit in order to avoid an application
        for orders for that purpose; and asked to be advised as to the state of
        progress in providing responses to his demand for discovery of documents
        and to his requests for information at Mr. Romes examination for discovery,
      on which he knew Mr. Winstanley was working.

[29]

As
        a result of Mr. Delaneys position in respect of the information supporting
        the application to amend, Mr. Winstanley attempted to persuade the solicitor
        for Prospectors Airways, in whom the privilege allegedly resided, to
      consent to his use of the information.  Failing in that attempt, he filed and delivered,
        on June 21, 2001, a statement of claim amended pursuant to Rule 24(1)(a)
        alleging misrepresentation against Moss Management only.  In this way,
        he hoped to obtain discovery of the allegedly privileged documents through
        Moss Management and to add Mr. Richards and Mr. Wolrige as defendants thereafter.  Accordingly,
        he delivered with the amended statement of claim another demand for discovery
      of documents.

[30]

Mr.
        Delaney responded that Moss Management would not disclose documents relevant
        to the amended claim until his motion to strike out the amendments could
        be heard.  He filed and delivered, on June 27, 2001, notices of applications
        to strike out the amendments, for a summary trial of the action pursuant
        to Rule 18A, and to strike out the action for want of prosecution.  In
      his covering letter, Mr. Delaney said, among other things:

As you will be able
        to see from our motion, we are seeking a dismissal of your clients claim
        or, in the alternative, that the new amendments be struck out.  It is
        our position that our client should not have to produce documents in
        relation
        to the new amendments until our application has been heard, as the amendments
      may not stand.

It is not clear to us, in light of the amendments, whether or not your
        clients intend to proceed with the motion to amend the Statement of Claim.  At
        this point, we would assume that the motion would just be to add the two
        new parties and consequential amendments.  However, should you wish to
        proceed with your motion, we will also take the position that the motion
        should not be allowed in light of Rule 19(7).  In particular, your clients
        have now pleaded that Moss Management made the representations in question
        and thereby induced the Plaintiffs to enter into the contractual arrangements.  It
        is our position that it would be inconsistent to then claim that Richards
      and Wolrige were acting in a personal capacity when they made the representations.

[31]

A
        consideration of the exchanges between Mr. Delaney and Mr. Winstanley to
        this point might suggest that the motion to strike out the action for want
        of prosecution was activated less by any prejudice that might have resulted
        from the plaintiffs delay than by the imminent prospect that Mr. Richards
        and Mr. Wolrige might be joined in the action as personal defendants and
        that allegations of misrepresentation, fraud, and breach of trust might
      be made against them.

[32]

In
        any event, in his response to Mr. Delaneys outline, which he filed on
        July 13, 2001, Mr. Winstanley took the position that he did not oppose
        a summary trial of the liability issues and that he opposed the applications
        to strike out the amendments and to dismiss the action for want of prosecution.  He
        filed the affidavits of Mr. Howell, Mr. Buchan, Mr. Rome, and himself,
        all sworn in July 2001, and excerpts from the examination for discovery
      of Mr. Richards conducted on October 26, 1995, in support of his position.

[33]

The
        applications were heard by the Chambers judge commencing on October 17,
        2001.  In her reasons, pronounced on December 10, 2001, she dealt only
      with the application to dismiss the action for want of prosecution.

[34]

The
        appellants allege a number of errors in the reasoning of the Chambers
      judge.  They
        may be reduced to three questions, in my view.  First, whether the Chambers
        judge erred in the exercise of her discretion to dismiss the action for
        want of prosecution; second, whether she erred in concluding that the
        issues were not suitable for summary trial under Rule 18A; and third,
        whether
      she erred in awarding the respondent double costs as increased costs.

[35]

I
        am satisfied that the learned Chambers judge erred in exercising her
      discretion to dismiss the action for want of prosecution.

[36]

First,
        she erred in considering the relevant period of delay to be ten years,
        measured from the date that the cause of action arose.  An application
        to dismiss an action for want of prosecution relates to the proceeding
        itself, not to the underlying cause of action; its goal is the effective
        and efficient administration of justice, not the dismissal of stale claims:
        see the concurring reasons of Lambert J.A. in
Rhyolite Resources
        Inc. v. CanQuest Resource Corp.
(1999), 64 B.C.L.R. (3d) 80,
      1999 BCCA 36 at ¶ 30.

[37]

Next,
        in presuming prejudice to Moss Management arising out of the delay, she
        overlooked the important fact that Moss Management set the action down
        for summary trial and proffered its evidence and submissions on the merits
        of the claim.  This conduct suggests strongly that the delay did not
      prejudice Moss Management in its defence of the action.

[38]

Finally,
        and most importantly, she failed to take into consideration the conduct
        of Moss Management after Mr. Winstanley was engaged.  She overlooked
        the principle evinced by Lord Diplock in
Allen v. Sir Alfred McAlpine & Sons
      Ltd.
,
supra
, which I will reproduce for convenience:

... if after the plaintiff has been guilty of unreasonable delay the
        defendant so conducts himself as to induce the plaintiff to incur further
        costs in the reasonable belief that the defendant intends to exercise his
        right to proceed to trial notwithstanding the plaintiffs delay, he cannot
        obtain dismissal of the action unless the plaintiff has thereafter been
      guilty of further unreasonable delay.

[39]

If
        there was inordinate and inexcusable delay in this case, it occurred
      before Mr. Winstanley was retained.  As I have observed, he proceeded diligently
        with the action and there can be no suggestion of unreasonable delay
      since he took conduct of the file.

[40]

Further,
        until receipt of Mr. Delaneys letter of June 27, 2001, in which Mr. Delaney
        stated for the first time that he intended to rely on delay as the basis
        for an application to dismiss the action, it was reasonable for Mr. Winstanley
        to believe that antecedent delay was not a concern and that Mr. Delaney
      intended to proceed to trial.

[41]

Moreover,
        the whole tenor of Mr. Delaneys correspondence and conduct after Mr.
      Winstanleys engagement was calculated to and did induce Mr. Winstanley
      to take steps
        to move the action forward.  When Mr. Winstanley went on record as solicitor
        for the appellant, Mr. Delaney insisted that he file a notice of intention
        to proceed.  Thereafter, he encouraged Mr. Winstanley to press on with
        the documentary discovery and he forced Mr. Winstanley to take steps to
        effect amendments to the statement of claim.  Then, on June 27, 2001, he
        served on Mr. Winstanley applications for an order striking out the amendments
        and for a summary trial of the action on the merits.  Mr. Winstanley was
        required to prepare for these applications and he did so.  In particular,
        he prepared and presented his case on the summary trial.  To fail to
        do so could have resulted in his clients case being dismissed on its
      merits.

[42]

The
        Chambers judge overlooked this critical consideration in her assessment
        of the interests of justice.  In effect, she dismissed the action for want
        of prosecution after the parties had led their evidence at trial and made
      their closing submissions.  I think she erred in doing so.

[43]

For
        those reasons, I would allow the appeal, set aside the judgment dismissing
      the action, and remit the matter to the Supreme Court.

[44]

It
      is necessary to say something about the other grounds of appeal.

[45]

The
        appellants assertion as a ground of appeal that the Chambers judge erred
        in concluding that the action was not suitable for summary trial is misconceived.  It
        is true that the Chambers judge made a comment to that effect, but she
        did so in the course of her discussion of prejudice in relation to the
        motion to dismiss the action.  She did not adjudicate the application for
        summary trial and, consequently, she made no order that the action is not
        suitable for summary trial.  No appeal lies from an observation contained
      in her reasons for judgment.

[46]

It
        is unfortunate for the appellants that Mr. Rome is now deceased.  However,
        there is an extensive record of his relevant evidence in his affidavits
        and in his examination for discovery.  Moreover, the appellants case is
        not entirely dependent upon Mr. Romes evidence.  It may be that his death
        is not a barrier to a summary trial of this action or to a conventional
        trial using the record of his evidence.  However, those are matters to
      be considered in the Supreme Court.

[47]

Finally,
        as I would allow the appeal and set aside the judgment below, there is
        no longer any foundation for the order for costs made by the Chambers
      judge.  Thus,
        it is not necessary to consider the question raised on the appeal of
      the order for costs, which is whether the Chambers judge erred in dismissing
        as anomalous or as
obiter dicta
the majority reasoning in
Brown
        v. Lowe
, 2002 BCCA 7 on the question of the effect of a Calderbank
        letter on costs and in purporting to follow the dissenting reasons on that
      point as the proper approach.

[48]

In
        summary, I would allow the appeal, set aside the order dismissing the action
      for want of prosecution, and remit the matter to the Supreme Court.

The Honourable Mr. Justice
      Smith

I agree:

The Honourable Madam Justice Southin

I agree:

The Honourable Madam Justice
      Rowles


