A B.C. judge has dismissed an Alberta lawyer’s lawsuit against Air Canada that claimed the crew of a plane falsely imprisoned him and erroneously accused him of urinating all over the aircraft’s washroom.
Supreme Court of British Columbia Justice Hope Hyslop threw out lawyer Sergei Scurfield’s claim for delay, as it had dragged on for more than six years with no credible excuse for the holdup.
Hyslop found that Scurfield had taken few steps to pursue the claim in the years since he had filed it.
“The only apparent reason for the delay is the inability of the plaintiff’s lawyer to obtain instructions from his client,” she wrote in Scurfield v. Air Canada.
“The applicants submit that this cannot possibility [sic] be considered a credible excuse (particularly where the client is a lawyer himself). The delay is therefore inexcusable.”
Scurfield’s claim revolved around a 2008 incident in which he alleged that the crew of a Jazz Air flight had “arbitrarily detained and falsely imprisoned” him when he was flying from Calgary to Kamloops, B.C. He claimed the crew had “erroneously determined that he had vandalized the plane’s washroom by urinating all over it,” and that security personnel had assaulted him by trying to stop him from getting off the plane.
During the incident, the RCMP arrested Scurfield and put him in the “drunk tank” for seven hours. He claimed he was falsely imprisoned, physically injured when handcuffed and was not given access to the lawyer of his choice, which he says was a breach of his Charter rights.
He brought his claim against Air Canada, the Kamloops Airport and the B.C. minister of public safety in 2011. He sought damages for pain and suffering and expenses, as well as a loss of vacation and business opportunities.
Since then, Scurfield failed to proceed with the action, as the only step he took was to amend the claim to change an incorrectly named defendant, the decision said.
Government lawyers even took the unusual step of trying to contact Scurfield directly when they heard his lawyer, James Murphy, had lost contact with him.
When the defendants each brought an application to dismiss Scurfield’s action for delay, the plaintiff sought an adjournment by telephone. Neither Scurfield nor Murphy had filed any written material opposing the applications.
On July 26, a few days before the application was set to be heard, Murphy requested a two-week adjournment, as he believed Scurfield had evidence that would explain the delay, but he had not received instructions from him.
The judge granted Scurfield’s request to speak to the court by telephone to seek an adjournment of the defendants’ applications to dismiss. Scurfield claimed he was not aware of the applications.
He added that had dismissed Murphy on July 28 and was seeking new counsel.
Hyslop refused the adjournment request and concluded that Scurfield likely avoided giving Murphy instructions.
“The solution in obtaining an adjournment by Mr. Scurfield was to discharge his counsel at the last minute,” Hyslop said.
Hyslop found that the lengthy delay in the prosecution of the action was solely attributable to Scurfield.
“No steps have been taken since the filing of the Amended Notice of Civil Claim more than six years ago,” she said. “This is clearly inordinate delay.”
Hyslop found that the delay caused a prejudice in itself, as the memories of the witnesses that the defendants intended to call would be at least nine years old if a trial proceeded. And this was a case that would depend heavily on the evidence and memory of witnesses, she said.
The judge found the delay had created a substantial risk that a fair trial was no longer possible, and awarded costs of both the application and the original action to all three defendants.
The federal Ministry of Justice handled the case on behalf of the B.C. minister of public safety and referred all questions to the RCMP’s B.C. division, which did not respond to a request for comment.
Sean Taylor, the lawyer who represented the Kamloops Airport, declined comment and Michael Dery, who acted on behalf of Air Canada, was not available.
Scurfield could not be reached, and Murphy did not respond to a request for comment.