A visiting Yukon Supreme Court judge has dismissed two applications to throw out two lawsuits involving a fire at the local Saan clothing store more than 15 years ago.

Justice Dennis O'Connor handed down his 10-page decision from the July 31 hearing last week.

The matter involves two lawsuits. One is between Saan Stores Ltd. and defendants 328995 Alberta Ltd., Antler Construction Ltd. and McLean's Electrical with a number of third parties.

The other is between Rick Holdings and 328995 Alberta Ltd. and defendants Antler Construction Ltd., McLean's Electric Ltd., Dan Wolfrom, Underhill & Underhill Professional Land Surveyors and Engineers, Underhill Engineering Ltd., Mike Frasher, Philip Brown, Jeff Kuzyk and Jerry Carter. There's also a number of third parties listed on the second lawsuit as well.

In this case, applicants McLean's Electric, Brown, Kuzyk and Carter were asking that the lawsuits be dismissed because they haven't been moving forward diligently.

'The lawsuits relate to a Saan clothing store in Whitehorse, which was destroyed by fire over 15 years ago,' the judgment states. 'The plaintiffs in both actions allege that the defendants were negligent during construction of the store, some 20 years ago.'

In an April 5 order, Yukon Supreme Court Justice Leigh Gower directed the applications for both dismissals be heard together.

In reviewing the facts of the case, O'Connor noted that in 1986, the numbered Alberta company which owns the property hired a number of contractors, including the applicants in the case, to build a Saan store where the current store is on Second Avenue. Construction wrapped up around the end of the year.

A fire then destroyed the store in -40 temperatures on Jan. 2, 1991. It was about five years later, in 1996, that the two lawsuits were filed: one by Saan and the other by the property owner.

The defendants are all companies or people involved in building the store and, in particular, installing electrical equipment in 1986.

As the matters were taken to court, pleadings were done by July 1997, but further court dates on the matter set for July 1998 were cancelled until about two years later, the judgment reads.

'In August and September of 1999, an officer of Saan Stores and the applicants were examined for discover. The officer for Saan Stores undertook to provide answers to 85 questions that were left unanswered at the examination. Approximately 70 of those undertakings were answered in July 2001,' the judgment reads.

In February 2003, the sides met to review expert reports.

'There is little in the record to explain the lack of activity during the period leading up to that meeting,' O'Connor stated, adding there was a change in lawyers twice for the applicants and Saan also changed its lawyer once.

'It seems logical that the changes in counsel would cause some delay,' the judgment reads.

Although there was mediation following the February discussions, one defendant refused to take part in it and there was no resolution.

There were also offers to settle the matter between the parties between 2003 and late last year.

It was in January that the applicants applied to the court to dismiss the matters.

'There is little in the record to suggest that prior to the February 2003 meeting any of the defendants suggested that the action should proceed more quickly,' reads the decision. 'Indeed, as I mentioned above, the applicants changed counsel on more than one occasion.'

To dismiss a matter due to it not moving along quickly enough, O'Connor noted, it has to be determined there's been an inordinate delay, that the delay is inexcusable, that it's caused serious prejudice or would likely cause serious prejudice to the defendants and even if those requirements are met the court must still determine that the balance of justice demands the action be dismissed.

'I have concluded that even if the first three requirements are met, the balance of justice does not require that these actions be dismissed,' O'Connor wrote.

The plaintiffs, he noted, should have an opportunity to fix the situation by proceeding in an expedited way.

The judge then ordered that by Aug. 22, the plaintiffs have to apply to have the case overseen by Justice Ron Veale.

Leaving it to Veale to set the schedule for the matter, O'Connor suggested that the remaining matters to be dealt with before trial be finished within six months.

The visiting judge also ruled that the applicants can continue to bring forward similar applications for dismissal in the future, if there is reason.

Finally, the plaintiffs were ordered to pay the costs of the application for dismissal.

'Normally, costs follow the event,' wrote the judge. 'However, I have found that the plaintiffs were responsible for some inexcusable delay. The applicants were entirely justified in bringing these applications.'

Had the application not come forward, O'Connor stated, the issue would have likely continued to go on longer.