Dismissal of a Court Action
The relevant principles were summarized and restated in 0690860 Manitoba Ltd. v. Country West Construction Ltd., 2009 BCCA 535 at paras. 27 – 29, as follows:
[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.
[29] I would not attempt to state what reasons for the delay might serve as an excuse for the plaintiff. In some cases, for example, negligence of the plaintiff’s lawyer might amount to an excuse, in others it might not. Whether the reason for the delay amounts to an excuse will depend on the circumstances of the particular case.
