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“The Dog Ate My Trial Brief” – Why Stricter Timelines May Be Necessary in Civil Lawsuits

By Erin Reimer and Linette Lubke - April 1, 2022

In 2016 the Supreme Court of Canada in R v. Jordan established stricter timelines for criminal trials, stating that “Canadians … rightly expect a system that can deliver quality justice in a reasonably efficient and timely manner.” The decision improved delays in the criminal justice system, but corresponding changes in the civil system have yet to be adopted. Recent commentary from the BC Court of Appeal suggests that it may be time to implement similar rules for civil trials in British Columbia.

Unreasonable Delay

A delay of five years is not unusual in civil actions, heard the BC Court of Appeal in Drennan v. Smith (“Drennan”) this February. Justice DeWitt-Van Oosten stated that if that was the case, “it may be time to revisit the legal test for dismissal,” as a response in her writings for the court.

Originally, the underlying action in Drennan was dismissed by the BC Supreme Court (“BCSC”) for want of prosecution – in other words, for failure to pursue the litigation in a timely manner. Under Rule 22-7(7) of the Supreme Court Civil Rules (the “Rules”), claims can be dismissed for want of prosecution if the following criteria are met:

  1. there has been an inordinate delay;
  2. the delay is inexcusable;
  3. the delay has caused, or is likely to cause, serious prejudice to the defendant; and
  4. on balance, justice requires a dismissal of the action.

These criteria make up the test for dismissal for want of prosecution, which is not codified in the Rules but established by the Court of Appeal in previous decisions.

Dismissal orders are made only in rare instances however the BCSC found that these conditions were met because (i) it took the plaintiff four years to attempt to reserve a trial date without having a good reason to do so; and (ii) by the time the plaintiff pursued a trial date, a key witness had passed away, and memories had faded, depriving the defendant of “the best evidence available,” and causing “irreparable prejudice,” (CA at para. 21). The BCSC concluded that due to the plaintiff’s inexplicable delay it would be “impossible” for the defendant to have a fair trial, and justice required a dismissal.

The Court of Appeal overturned the dismissal order, finding that the BCSC erred in finding that the threshold of “serious prejudice” had been met. Specifically, the trial judge had misjudged the value of the evidence lost by the passing of the witness, and inferences made about “faded memories” were not supported by the record. However, Justice DeWitt-Van Oosten acknowledged that the trial judge’s comments about the delays in the litigation were not unwarranted.

Just and Speedy Determinations

At the end of her reasons, Justice DeWitt-Van Oosten suggested it may be time to reformulate the legal test for dismissal to accord with the objective of the Rules. DeWitt-Van Oosten stated, “securing the just, speedy and inexpensive determination of every proceeding on its merits,” (R. 1-3) specifically, the requirement that parties demonstrate a likelihood of “serious prejudice”. “Serious prejudice” is a high threshold, making it difficult for parties to secure a dismissal order for want of prosecution.

After noting that the Court of Appeal had not been asked to reconsider the test for dismissal and was thus incapable of doing so on this appeal, Justice DeWitt-Van Oosten opined that a reimagined test may incentivize parties to resolve civil claims more efficiently and consequently improve public confidence in the justice system.

Can we expect changes to the test for dismissal for want of prosecution soon? It is difficult to say, but Drennan certainly appears to represent the Court of Appeal’s endorsement of such.

Want More? 

If you have any questions or comments relating to what we discussed above or a civil claim, feel free to reach out to Erin Reimer or Linette Lubke from our Litigation Group.



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