Long Delayed Court Action Justified

Long Delayed Court Action Justified

An application for dismissal of the court action for want of prosecution was dismissed when the court found that the reasons for the 13 year delay of the court action was justified.

The law relating to dismissal for want of prosecution was recently summarized in Eastman v. Eastman Estate 2016 BC SC 209.


In 2003 a widow commenced court action to vary her late husband’s will on the basis that she was not adequately provided for.

The widow and the three children of the deceased subsequently entered into a temporary standstill agreement and never filed a statement of defense to the court action, and no further steps whatever taken in the proceedings.

The widow continued to live in the matrimonial home for the remaining 13 years until she died at age 90.

After her death her estate  issued a notice of intention to proceed with the court action under the wills variation, and the defendants applied to strike out the claim  for want of prosecution.

The court dismissed the application and found that the widow was justified in allowing the court action to sit idle for 13 years .


36      However, the wording of Rule 22-7 does not prevent a party in default from bringing an application to dismiss for want of prosecution. The court’s focus is on the length of the delay, the reason for it, and any resulting prejudice. Ultimately, dismissing an action for want of prosecution involves an exercise of discretion to be exercised in the interests of justice. It is not an order that is made lightly.

37      The considerations on an application for dismissal for want of prosecution are well-settled, having been established in a number of cases. They are derived from the reasons for judgment of Lord Justice Salmon in Allen v. Sir Alfred McAlpine & Sons Ltd., [1968] 2 Q.B. 229 (Eng. C.A.), at pp. 268-269. The parties agree that those considerations were summarized in March v. Tam, 2002 BCSC 1125 (B.C. S.C. [In Chambers]):

… The defendants must establish that there has been inordinate delay and that this delay is inexcusable. If those two factors are established a rebuttable presumption of prejudice arises and the onus shifts to the plaintiff to prove on a balance of probabilities that the defendants have not suffered prejudice or that on balance justice demands that the action not be dismissed. [para. 25]

[Emphasis in original]

38      As a result, in this case, I will consider:

(a) the length of the delay and whether it was inordinate;

(b) 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;

(c) whether the delay has caused serious prejudice to the defendants 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

(d) whether, on balance, justice requires dismissal of the action.

39      In this case, the delay in proceeding with the action has been almost thirteen years which, all parties agree, is inordinate. Such a delay cannot meet the object of the Rules which is to secure the just, speedy and inexpensive determination of every proceeding in its merits (Rule 1-3).

40      I also accept, on the evidence, that the defendants have suffered not just rebuttable prejudice but actual prejudice. Buela is now deceased and no steps were taken by the Executors to secure any evidence from her while she was still competent or before her death. Carole says that while the estate has kept records for estate purposes, they have not secured financial and other documentation pre-dating Donald’s death for litigation purposes. Further, some of Buela’s and Donald’s friends are now deceased.

41      The real argument between these parties is whether the delay was justified.

42      For the reasons which follow, I have concluded that Buela had justification for her delay.

43      First, when the standstill agreement was entered into, it was at the defendants’ request and it was the defendants who were to take the next step. The defendants were seeking an indulgence from Buela. Because of their conflict of interest as Executors, and as personal defendants to the Wills Variation Act claim, they would have been required to renounce their executorship or forego any interest in the residue of the Estate following Buela’s death. As a result of the standstill agreement they were not required to defend the action or to elect.

44      Although the standstill agreement was intended to be temporary, at any time either party could have ended it by delivering notice. Neither did.

45      Second, although Carole, on behalf of the Executors says that she believed that a resolution had been reached with Buela, the Executors never formally sought a release of the CPL or a dismissal of the action. Throughout, they were aware that the CPL remained on title and the action remained extant. No release and dismissal of the action was ever finalized.

46      Third, both Carole and Darlene acknowledge that Buela and Donald’s family valued their ongoing relationship. Darlene says that Buela did not want to upset that relationship by aggressively pursuing her Wills Variation Act claim. I accept that the delay in this case is not through inadvertence or due to negligence on the part of solicitors, however, unlike the situation in Irving v. Irving (1982), 38 B.C.L.R. 318 (B.C. C.A.), where the delay was deliberate in the hope that the law might change in the future, this is not a case in which Buela sought some tactical legal advantage by laying in the weeds. Rather, she sought family peace and, according to Darlene’s affidavit, left the litigation for after her death.

47      All parties benefited from the standstill agreement. Buela maintained family peace and all parties benefitted from the continuation of the relationship they had established during the 18 years Donald and Buela were married. Further, the Executors were not required to elect to remain as Executors or forego any interest they had in the residue of the Estate after Buela’s death. The Estate which was not large, would have been depleted by legal fees to the detriment of all parties.

48      Fourth, while Carole says that the Executors acted on their understanding that there had been agreement, exhausting the estate’s liquid assets to have Buela remain in the Home to the potential detriment of their interest as residual beneficiaries, in my view that issue is best assessed when considering their obligations under the Will in the context of Buela’s claim to a variation of it. It may ultimately be determined that the Executors did no more than was required of them under the Will.

49      Finally, I am satisfied that the steps taken by the Executors in furtherance of what they believed to be was an agreement with Buela, can be taken into account by the court when assessing the merits of Buela’s Wills Variation Act claim. The court will be able to assess whether, in light of all the circumstances and the benefits she received over the years since Donald’s death, Buela is entitled to anything further from the Estate.

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