Case citation: Giacomini Consulting Canada Inc. v. The Owners, Strata Plan EPS 3173, 2023 BCCA 473

Rule 22-7(7) of the Supreme Court Civil Rules permit parties to apply for dismissal of a proceeding for want of prosecution. A five-member panel of the BCCA has revised the test for want of prosecution. Prejudice, which used to be a threshold issue, is now one of a number of factors to be considered in the context of the larger test of whether the continuation of the action is in the interests of justice. 

Background

The underlying action involves a construction dispute filed in 2019. By January 2023, the respondent had not yet taken steps to produce documents, schedule examinations for discovery or set a trial date. Despite this inordinate and inexcusable delay, the Supreme Court application for dismissal of the action for want of prosecution was dismissed because the delay had not resulted in prejudice of the appellants’ ability to defend the action.  

On appeal, the appellants asked the Court to revise the existing test for dismissal of an action for want of prosecution. The test was revised so that prejudice is no longer a stand-alone requirement for dismissal.

Critique of the current test 

The focus on appeal was whether the current test adequately balanced the range of interests at stake where litigation delay is concerned. The appellants argued a Plaintiff’s interest in an adjudication on the merits should not have overriding force as litigation delay also impacts the public interest in a justice system that promotes timely and cost-effective resolution. 

The appellants further argued, under the existing test, ongoing inordinate and inexcusable delay is condoned so long as the delay does not result in the risk of serious prejudice to the Defendant’s ability to defend the action and this creates an insufficient incentive for a Plaintiff to move forward with any sense of urgency.

The Court of Appeal recognized that Defendants have an interest in expeditious resolution of claims against them that goes beyond their ability to defend themselves in the litigation. The existing test fails to adequately account for such interests and is unduly focused on litigation prejudice to the Defendant, at the expense of consideration of the broader impacts of delay on Defendants and the justice system more broadly.  

In response to these concerns, the Court of Appeal revised the test in two respects: (1) serious prejudice to the Defendant arising from delay is not a discrete element of the test, but rather a factor to consider at the interests of justice stage of the analysis; and (2) the impact of the delay on trial fairness is not, invariably, the overriding factor in considering whether it is in the interest of justice to permit a claim to continue.  

The revised test

For applications to dismiss an action for want of prosecution in BC, the first two questions are: 

1. Has the Defendant established that the Plaintiff’s delay in prosecuting the action is inordinate? 
2. Is the delay inexcusable? 

If both questions are answered in the affirmative, the court should move to the third and final question:

3. Is it in the interests of justice for the action to proceed despite the existence of inordinate and inexcusable delay? 

A non-exhaustive list of factors that are relevant in the assessment of the interests of justice are: 

1. the prejudice the defendant will suffer defending the case at trial;
2. the length of the delay;
3. the stage of the litigation;
4. the impact of the delay on the defendant’s professional, business, or personal interests;
5. the context in which the delay occurred, in particular whether the plaintiff delayed in the face of pressure by the defendant to proceed;
6. the reasons offered for the delay;
7. the role of counsel in causing the delay;
8. the public interest in having cases that are of genuine public importance heard on their merits; and
9. the merits of the action.

Takeaway

The Court of Appeal cautioned that this revised test is not an invitation to Defendants to bring applications for dismissal for want of prosecution as a matter of routine. Defendants should be cautious to ensure that the interests of justice lay in their favour before making such applications. The Supreme Court Civil Rules also provide other avenues to Defendants concerned about the pace of litigation, including setting timelines for pre-trial steps through the terms of a case plan order (SCCR 5-3). 

Questions?

If you have any questions with respect to this bulletin, please contact Amrit Kalra at akalra@brownleelaw.com.