Written by: Kelty McKerracher with contributions by Shannon Faleiro

As a lawyer, maybe you have had that case hanging off the side of your desk – and weighing on your client’s mind – that just won’t go away. It’s the one where the plaintiff has done nothing for years and your client is apprehensive to poke the proverbial bear. The reason that case has been so difficult to get rid of is the rigorous test for dismissing dormant litigation files, also known as the want of prosecution test.

In the recent case of Giacomini Consulting Canada Inc. v. The Owners, Strata Plan EPS 3173, 2023 BCCA 473 (“Giacomini”), the Court of Appeal for BC refined the test, making it easier for a defendant to have an inactive case dismissed when it is in the interests of justice to do so. The Court has put plaintiffs on notice that they should prosecute their actions with a “sense of urgency”.

The updated test signals the Court’s concern with ensuring access to justice and judicial fairness, as well as bolstering public trust in the court system.

Background

In August 2019, the respondent (plaintiff) filed a notice of civil claim against the appellants (defendants) for breach of warranty for a building HVAC system. One year later, in August 2020, the respondent served their claim and the appellants filed their response, and then…nothing. Six months later, the appellants filed their first application seeking to strike the action for want of prosecution. This prompted some activity, however, no further litigation steps were taken until January 2023, 21 months later, when the appellants filed a second want of prosecution application.

At the application, the judge applied the former long-standing want of prosecution test, which required applicants to show:

1)  there had been “inordinate and inexcusable delay in the prosecution of the action”;

2)  the delay had caused, or was likely to cause, “serious prejudice to the defendant”; and,

3)  that it was “in the interests of justice to dismiss the action”.

The judge found that the failure of the respondent to take active steps in the litigation for nearly two years was both inordinate and inexcusable. Moving to the second branch, the appellants presented evidence that the on-going litigation was damaging to their reputation and impeding their “business, marketing, sales and service”. However, the judge rejected the argument that serious prejudice had resulted from the litigation “hanging over their business” and found that the only relevant prejudice is “that which impacts the defendant’s ability to defend the action”. The judge dismissed the application.

Appeal

At the Court of Appeal, the Court acknowledged the impact of increasing delay and expense in civil cases on public confidence in the justice system, which the Supreme Court of Canada has described as an access to justice issue. The delivery of timely justice has been a hot topic in Canadian courts over the past years. In the landmark case of R. v. Jordan, 2016 SCC 27, the SCC found that a “culture of delay and complacency” in the criminal law context was resulting in infringements of s. 11(b) of the Canadian Charter of Rights and Freedoms, which guarantees the right of an accused to be tried within a reasonable time. In Drennan v. Smith, 2022 BCCA 86, our Court of Appeal extended Jordan to the civil law context, observing that, while delay in criminal justice proceedings take on special significance, the same policy concerns apply.

In the present case, the Court of Appeal noted that there had been an inflexible application of the “serious prejudice” portion of the want of prosecution test in BC, and that defendants have other interests in the timely resolution of claims against them besides litigation prejudice, such as personal, professional, or business interests. In addition, society as a whole has an interest in the timely and cost-effective resolution of claims as an access to justice issue.

The Court of Appeal concluded that the existing test failed to adequately account for such interests, instead condoning inordinate and inexcusable delay. Echoing Jordan and Drennan, Horsman J.A. found the submissions before the Court underlined the “culture of complacency” that had developed in the civil justice system.

The Revised Test

To address the issues of complacency, the Court revised the test by taking out “serious prejudice to the defendant” as a stand-alone step. The new test in BC for dismissal for want of prosecution is as follows:

1. Has the defendant established that the plaintiff’s delay in prosecuting the action is inordinate?
2. Is the delay inexcusable?
3. Is it in the interests of justice for the action to proceed despite the existence of inordinate and inexcusable delay?

Whether the delay has resulted in prejudice is now simply one factor in the balance for the judge to consider at the interests of justice stage. Further, “prejudice” is no longer limited to prejudice impacting the fairness of an eventual trial, but may include prejudice to personal, professional, and other interests that result from litigation lingering over a defendant unnecessarily.

However, the Court in Giacomini found the appellant had not provided concrete evidence of prejudice: there was no prejudice to the defendant’s ability to defend the action, no evidence of business-related prejudice, and no evidence that the defendant faced any prejudice that was outside the norm of any defendant facing a similar claim in negligence or breach of contract. Ultimately, the Court of Appeal revised the test but dismissed the appeal.

Takeaways

For defendants stuck in litigation with no movement, the revised test brings new hope for the dismissal of inactive lawsuits. The revised test should make it more accessible for a defendant in BC to show that delay in litigation is harming them as well as public confidence in the justice system, and that the action should be dismissed. As Horsman J.A. stated, “A plaintiff who has filed a civil claim should be expected to get on with it”.

For the BC legal system, Giacomini may result in legislative amendments in BC similar to those in other provinces, which have put in place “hard cap” rules automatically dismissing civil cases if they have not proceeded to trial within a set time.

While the full implications of the revised test will take years to unfold, litigants should be encouraged that the BC Courts are moving towards a more equitable balance of justice between plaintiffs and defendants, as well as society as a whole.

Want More?

If you have any questions or comments relating to what we discussed above, feel free to reach out to our Litigation + Dispute Resolution Group.