Dismissal For Delay (Want of Prosecution)

Dismissal For Delay (Want of Prosecution)

PMC Builders & Developers Ltd v Country West Construction Ltd 2009 BCCA 535 is one of the leading cases in BC for dismissal of a court action for delay, also known as want of prosecution.

It was recently followed in an estate case Re Strom estate 2017 BCSC 824 where the court declined to dismiss the case for delay in proceeding with the case to resolution.

It is a fact that a certain number of court cases are commenced and then never set for trial and sit for literally years without being resolved. It is open to the opposing party to apply to dismiss such an  action for delay. The courts will not dismiss an action for delay lightly and will review a number of criteria, especially any prejudice caused to the opposing party by the delay.

The test essentially is on balance is it in the interest of justice to dismiss the case for delay.

Dismissal For Delay: The Law

Lengthy delay by a plaintiff in bringing a claim to trial must be carefully considered in the context of evidence presented by both sides as to actual prejudice to the defendant in presenting its case at trial. Any prejudice will only be material to the extent that it was caused by the plaintiff’s inordinate delay, not by other events.

20      As Esson J.A. said in Tundra Helicopters Ltd. v. Allison Gas Turbine, 2002 BCCA 145, 98 B.C.L.R. (3d) 238 (B.C. C.A.), at para. 37: “It is no light matter to dismiss an action for want of prosecution.” He continued:
As Diplock L.J. said in Allen v. Sir Alfred McAlpine & Sons Ltd., [[1968] 2 Q.B. 229 (C.A.)] at p. 259:
The application is not usually made until the period of limitation for the plaintiff’s cause of action has expired. It is then a Draconian order and will not be lightly made. It should not in any event be exercised without giving the plaintiff an opportunity to remedy his default, unless the court is satisfied either that the default has been intentional and contumelious, or that the inexcusable delay for which the plaintiff or his lawyers have been responsible has been such as to give rise to a substantial risk that a fair trial of the issues in the litigation will not be possible at the earliest date at which, as a result of the delay, the action would come to trial if it were allowed to continue.
21      Country West brought its motion in the present case well before expiration of the applicable limitation period in contract. I will return later to this aspect of the matter.
22      The appellant offered no explanation for the delay in prosecuting its claims and, as I have said, conceded before the chambers judge that the delay was inordinate and not excusable. I would not say, however, that the appellant’s conduct was contumelious. The appellant was merely
23      In addition to Tundra Helicopters , the leading cases in this court on R. 2(7) are Irving v. Irving (1982), 38 B.C.L.R. 318 (B.C. C.A.) and Busse v. Robinson Morelli Chertkow (1999), 63 B.C.L.R. (3d) 174 (B.C. C.A.).
24      In Irving, the action was brought by a wife against her husband for an interest in her husband’s business. The action was founded in partnership and quantum meruit. It remained dormant for ten years until the husband sought dismissal for want of prosecution. This was denied by a chambers judge but granted on appeal. The evidence was that the delay was a deliberate tactic in the hope that the law would change. Eventually the law did change in the case of Becker v. Pettkus, [1980] 2 S.C.R. 834 (S.C.C.), and the wife sought an amendment in her action to plead a constructive trust remedy. This court emphasized that the delay was deliberate and tactical as opposed to being negligent or caused by illness or impecuniosity. In addition, the court found that there was a direct conflict in the evidence of the husband and the wife as to the involvement of the latter in the business and that the husband was denied the testimony of several independent witnesses who had died and who would likely have been able to give material evidence in the area of conflict. There was a finding of specific prejudice.
25      In Irving, the court adopted the principles governing an application for dismissal for want of prosecution – delay and prejudice – as discussed in the Allen v. Sir Alfred McAlpine & Sons Ltd. [[1968] 2 Q.B. 229 (Eng. C.A.)] case in the passage I have already set out. At p. 328, Seaton J.A. said this:
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. All of the statements of law are subject to the overriding principle that essential justice must be done. (See Freeman J.A., as he then was, in Ross and Ross v. Crown Fuel Co. Ltd. et al (1962), 41 W.W.R. 65 at 88, 37 D.L.R. (2d) 30 (Man.C.A.).)
26      In Busse, the action was framed in misrepresentation, breach of trust and breach of fiduciary duty against several defendants. The events giving rise to the litigation occurred in the early- to mid-1980s. The action was commenced in 1991 and more than six years later the defendants brought motions to dismiss for want of prosecution. The chambers judge adjourned the applications for consideration by the trial judge. In so doing, he applied obiter dictum given by Lambert J. A. in concurring reasons in Irving. On appeal, this court applied the statement of the law given by Seaton J. A. in Irving with reference to what was said in Allen. The delay was inordinate and inexcusable. It was intentional and for tactical purposes. There was “a strong likelihood of actual prejudice” to the defendants in presenting their cases at trial. The action was dismissed.
27      These cases suggest to me that a chambers judge charged with the hearing of an application for dismissal of an action for want of prosecution is bound to consider the following:
(1) the length of the delay and whether it was inordinate;
(2) any reasons for the delay either offered in evidence or inferred from the evidence, including whether the delay was intentional and tactical or whether it was the product of dilatoriness, negligence, impecuniosity, illness or some other relevant cause, the ultimate consideration being whether the delay is excusable in the circumstances;
(3) whether the delay has caused serious prejudice to the defendant in presenting a defence and, if there is such prejudice, whether it creates a substantial risk that a fair trial is not possible at the earliest date by which the action could be readied for trial after its reactivation by the plaintiff; and
(4) whether, on balance, justice requires dismissal of the action.
28      I consider the fourth question to encompass the other three and to be the most important and decisive question.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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