Court Delay & Dismissal Want of Prosecution

Many court actions, including estate litigation  are commenced and then just ” sit there” often for years  such that  inordinate delay can occur.

After certain criteria are met, typically the defendant will apply to the court for dismissal of the plaintiff’s court action for want of prosecution.

In Drennan v. Smith, 2022 BCCA 86  the Court of Appeal summarized principles to be considered on an application for dismissal for want of prosecution at para. 16 as follows:

Relevant factors for consideration are summarized in Wiegert v. Rogers, 2019 BCCA 334:

On an application to dismiss for want of prosecution, it must be shown that

1)there has been inordinate delay,

2)that the inordinate delay is inexcusable,

3) and that the delay has caused, or is likely to cause, serious prejudice to the defendant.

4) In addition, the final and decisive question, which encompasses the other three, is whether, on balance, justice requires a dismissal of the action: Azeri v. Esmati-Seifabad, 2009 BCCA 133 at para. 9; 0690860 Manitoba Ltd. v. Country West Construction Ltd., 2009 BCCA 535 at paras. 27-28.

Inordinate delay is defined in Drennan at para. 16 (citing para. 32 of Wiegert v. Rogers, 2019 BCCA 334 [Wiegert]) as follows:

…Inordinate delay is delay that is immoderate, uncontrolled, excessive and out of proportion to the matters in question: Azeri at para. 8; Sahyoun v. Ho, 2015 BCSC 392 at para. 17. As Justice Saunders explained in Sun Wave Forest Products Ltd. v. Xu, 2018 BCCA 63 at para. 25, the concept is relative: some cases are naturally susceptible of fast carriage or call for more expeditious prosecution than others. Although there is no universal rule as to when time starts to run, the date of commencement of the action is typically identified as the point from which delay is measured. The delay should be analysed holistically, not in a piece-meal fashion, and the extent to which it may be excusable is highly fact-dependent: Ed Bulley Ventures Ltd. v. The Pantry Hospitality Corporation, 2014 BCCA 52 at para. 38; 0690860 at para. 29.

The plaintiff’s diligence and dispatch in advancing the action is relevant to whether a delay is inordinate. Plaintiffs have a particular onus to move expeditiously when a case involves serious allegations that go to a defendant’s character and credit, see Extra Gift Exchange Inc. v. Accurate Effective Bailiffs Ltd., 2015 BCSC 915 [Extra Gift Exchange Inc.].
In considering the issue of whether there has been inordinate and inexcusable delay, the court is entitled to consider the conduct of the defence contributing to that delay, see Tundra Helicopters Ltd. v. Allison Gas Turbine, 2002 BCCA 145 at para. 21 [Tundra].

The burden is on the applicant to establish that there has been inordinate and inexcusable delay. Once the applicant has established inordinate and inexcusable delay, a rebuttable presumption of prejudice arises:

Once a defendant establishes that delay is inordinate and inexcusable, a rebuttable presumption of prejudice arises: Busse v. Chertkow, 1999 BCCA 313 at para. 18. The concern is with the prejudice that a defendant will suffer in mounting and presenting a defence if the matter goes to trial: 0690860 at para. 27. Relevant matters could include failing memories, unavailable witnesses and the loss or destruction of physical evidence.

Drennan at para. 16 (citing para. 33 of Wiegert).

The final and overriding question is whether the interests of justice require dismissal of the action, see Drennan para. 16 (citing para. 33 of Wiegert):

…As to the final consideration — whether, on balance, justice requires dismissal of the action — again, the determination is highly fact-dependent. Relevant matters could include the length of and reasons for the delay, the stage of the litigation, the context in which the delay occurred and the role of counsel in causing the delay (although negligence on the part of a plaintiff’s lawyer may not always amount to an excuse): International Capital Corporation v. Robinson Twigg & Ketilson, 2010 SKCA 48 at para. 45; 0690860 at para. 29.

Four questions are to be addressed in an application to dismiss for want of prosecution:

1. Has there been inordinate delay on the part of the plaintiff in pursuing its claim?
2. Has the delay been inexcusable?
3. Has the delay caused serious prejudice, or is it likely to cause serious prejudice to the defendants?
4. Does the balance of justice require an order dismissing the plaintiff’s claim?
Extra Gift Exchange Inc., at para. 41.

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