A lawsuit involving the third in a series of fires that destroyed Bridgeview's Mackenzie Sawmill will go to a 10-day trial in June after a B.C. Supreme Court judge in Vancouver denied an application by defendants Scorpio Security Inc., Sukhdev Mann and Noni Hara to have the case dismissed for want of prosecution.
"Having balanced the relevant considerations, I find that it is in the interest of justice to permit this matter to proceed to trial," Justice Judith Hoffman decided.
The plaintiffs are a numbered company that owned the mill 鈥� 0761979 B.C. Ltd. 鈥� and MacKenzie Sawmill Ltd., which owned equipment and property destroyed or damaged in a third fire. The large mill, in the 11700-block of 130th Street in Surrey, went up in flames three times, taking 120 jobs with it. MacKenzie Sawmill Ltd.鈥檚 insurer paid out $20.2 million for the fire losses.
The sawmill was built in 1938. The first fire was on Nov. 12, 2010, the second on Jan. 25, 2011, and the third on Oct. 31, 2014.
Sparks from a welder's torch started a fire in a chip truck full of sawdust on Nov. 12, 2010, shutting down the mill. The owners were apparently getting ready to reopen it when the second fire struck roughly 10 weeks later.
The lawsuit before the court concerns the third fire. At the time of that fire, Hoffman noted in her Feb. 5 , Scorpio was providing nighttime security patrol services to the plaintiffs "pursuant to a verbal contract. It is alleged that, as Scorpio鈥檚 owner, Mr. Hara entered into the verbal contract on the company鈥檚 behalf."
Mann, a Scorpio employee, was on duty on the night of the third fire and CCTV footage presented in court was used by the plaintiffs as the basis for their allegation that Mann "failed to detect the Fire in a timely way and that, once detected, he delayed reporting the Fire to 911." The defendants in turn allege that various contractors named as third parties who were working on the premises that day started the third fire.
The plaintiffs in 2015 filed a notice of civil claim for damaged and Scorpio filed its response in 2016.
Determining if there was "inordinate delay" in this case, Hoffman noted the time that has elapsed since the claim was filed "is substantial.
"The fire occurred over 10 years ago and the claim was filed 9.5 years ago. It is apparent from an examination of the litigation record that the conduct of both parties has contributed to the lengthy period of time this matter has occupied," the judge noted. "There have been periods of both substantial activity and inactivity on the part of both parties. For example, during one notable nine-month period between June 11, 2020 and February 12, 2021, no steps were taken by either party. This period coincides with the first year of the COVID-19 pandemic."
Hoffman found without a doubt that while the defendants "will suffer some prejudice" should the lawsuit proceed to trial, the plaintiffs are in that same boat.
As for the defendants, she noted, "at the very least, their witnesses鈥� memories will have deteriorated given the 10 years that have passed since the fire.
"However, the same is true for the plaintiffs鈥� witnesses, and it is the plaintiffs who bear the burden of proof. This prejudice cannot be said to uniquely deny the defendants their right to a fair trial. Moreover, a significant portion of the evidence relevant to the negligence claim has been preserved via the CCTV footage from the night of the fire, as well as in the investigations that were done following the fire. For these reasons, I am not satisfied that proceeding to trial will result in significant prejudice to the defendants鈥� right to a fair trial."
Hoffman decided that even if the delays "could be said to be inexcusable," it is her view that because the litigation is at an advanced stage, this "weighs against dismissal of the action. Expert reports are expected to be exchanged in a few weeks, and the trial is scheduled to start in June. In my view, it is not in the interests of justice to dismiss the plaintiffs鈥� claim based on a lack of diligence on the part of counsel between 2021 and 2023."
