The New Test for Want of Prosecution Applications

In this article, we will review the Court’s decision and outline the new test for dismissal of an action for want of prosecution.

The Facts

The underlying action involves a construction dispute over alleged failures in a residential tower HVAC system. The action was commenced in August 2019 and the Notice of Civil Claim was served in August 2020.

In February 2021, the appellants sought to strike the claim for want of prosecution. This application was adjourned after discussion with the parties. Following this, the respondent took no other steps in the litigation.

On January 31, 2023, the appellants filed a second application to dismiss the action for want of prosecution. They alleged that the action was damaging to their reputation and business.

Supreme Court Decision

In chambers, the presiding judge applied the existing test for dismissal of the action for want of prosecution which was:

• Has there been inordinate delay?
• If there is no inordinate delay, is the delay inexcusable? (The party seeking dismissal bears the onus of showing inordinate delay with no credible excuse).
• Has the delay caused or is it likely to cause, serious prejudice to the defendant? Once a defendant establishes that delay is inordinate and inexcusable, a rebuttable presumption of prejudice arises. (Assessing prejudice to the defendant could include consideration of the length 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)).
• If the former factors have been established, on balance, the court must then ask: does justice demand a dismissal of the action?

The judge dismissed the application. Although the delay was inordinate and inexcusable, the judge was unable to conclude that the delay resulted in prejudice to the appellants respecting their ability to properly defend the case. The stigma the appellants faced having the litigation “hanging over their business” was not serious enough to establish prejudice.

This judgment was appealed on the basis that it exemplifies the flaws in the existing test for dismissal for want of prosecution. They submitted that the test is unduly narrow and prioritizes the plaintiff’s interests in a trial on the merits at the expense of other competing interests like public confidence and the administration of justice. The appellants contended that the requirement of serious prejudice to the defendant condones inordinate and inexcusable delay and creates little incentive for a plaintiff to move diligently. The appellants relied on obiter comments from Drennan v Smith[2], where the Court of Appeal suggested that it may be time to revisit the test for dismissal for want of prosecution in light of an apparent pattern of delay in civil proceedings.[3]

Court of Appeal Decision

Basis for Changing the Existing Test for Dismissal for Want of Prosecution

The five-member panel of the Court of Appeal concluded that the existing test for want of prosecution should be revised.

To begin, the Court looked at the general object of the Supreme Court Civil Rules which is “to secure the just, speedy and inexpensive determination of every proceeding on its merits.”[4] The Court noted that although the power to dismiss an action for want of prosecution deprives a plaintiff of an adjudication of their claim on the merits, the entitlement to an adjudication on the merits should not supersede the interests of the defendants and society in the expeditious resolution of civil disputes.

The Court focused on the serious prejudice requirement of the test in their decision. The Court discussed how the serious prejudice requirement prevents a court from giving appropriate weight to other factors relevant to the interests of justice, such as the public interest in an efficient and cost-effective justice system. Under the existing test, plaintiffs may not be encouraged to move forward with their case in a timely manner due to the low risk that their action will be dismissed for want of prosecution. The Court opined that the test should account for the public interest in timely and cost-effective justice. Court delays erode public perceptions of a timely and cost-effective justice system which undermines access to justice. Finally, the Court held that the test should not only focus on litigation prejudice to the defendant, but should consider the defendant’s personal, professional, or business interests more broadly as ongoing litigation can impact these.

The Revised Test for Dismissal for Want of Prosecution

The Court removed serious prejudice to the defendant as a pre-requisite to dismissing an action for want of prosecution in the new test. The Court relied on the decision International Capital Corporation v Robson Twigg & Ketilson[5] (“International Capital Corp”) in which the Saskatchewan Court of Appeal revised the same test that currently applies in British Columbia. In this decision, the Saskatchewan Court of Appeal changed the third prong of the test to consider whether it is in the interests of justice for the case to proceed to trial notwithstanding the existence of inordinate and inexcusable delay. Under this new test, serious prejudice to the defendant arising from the delay is not a discrete element of the test that must be met. Rather, prejudice should be considered in the interests of justice assessment. Further, the Saskatchewan Court of Appeal held that the impact of the delay on trial fairness should not be the overriding factor in the interest of justice analysis.[6]

The new test for dismissal for want of prosecution is as follows:

• Has the defendant established the plaintiff’s delay in prosecuting the action is inordinate?
• Is the delay inexcusable?

If the first two questions are answered in the affirmative, then:

• Is it in the interests of justice for the action to proceed despite the existence of inordinate and inexcusable delay?

The Court adopted the non-exhaustive list of factors set out in International Capital Corp. to assess the interests of justice. These factors are:

• The prejudice the defendant will suffer defending the case at trial;
• The length of the delay;
• The stage of the litigation;
• The impact of the delay on the defendant’s professional, business, or personal interests;
• The context in which the delay occurred, in particular whether the plaintiff delayed in the face of pressure by the defendant to proceed;
• The reasons offered for the delay;
• The role of counsel in causing the delay; and
• The public interest in having cases that are of genuine public importance heard on their merits.[7]

Further, the Court added one final factor to be considered: the merits of the action. While the Court cautioned about engaging in any searching examination of the merits, if the action is bound to fail, the interests of justice favour its dismissal.

The Court made three final comments regarding this new test. Firstly, the remedy of dismissal for want of prosecution should not be labelled as “draconian” as this implies the remedy is excessively harsh or punitive. The dismissal of a claim for want of prosecution is justified if it is not in the interests of justice to allow an action to proceed with such inordinate and inexcusable delay. Secondly, the revised test is not an invitation to bring applications for want of prosecution as a matter of routine. Thirdly, defendants worried about the pace of litigation have other options to move the matter forward. While a defendant has no obligation to move a plaintiff’s case forward, their inaction in the matter may weigh against dismissal of the action at the interests of justice stage of the analysis.

Despite the new test, the Court declined to dismiss the respondent’s action for want of prosecution. In its decision, the Court considered the complex nature of the claim, the respondent’s ongoing investigations into the issue, the lack of prejudice on the appellants to defend the action, the business-related prejudice, the time since the commencement of the action, the appellants lack of effort to move the matter forward, and the merits of the claim.

Final Thoughts

The Court has removed the necessity to prove actual prejudice to a defendant’s ability to defend a claim on the merits in order to succeed on a want of prosecution application. Moreover, prejudice to a defendant will no longer be inferred. While there is no obligation on the defendant to take any steps to move the plaintiff’s case forward, a defendant’s failure to do so is relevant.  As a result, a defendant’s inaction in the face of lengthy delay by the plaintiff may weigh against the dismissal of the action.

The Courts will apply a broader interest of justice analysis at the third stage of the test guided by a non-exhaustive list of factors and considerations. The public interest will be important with respect to the timely resolution of civil claims as undue litigation delay undermines public confidence in the justice system. The Courts will consider the public interest in having cases that are of genuine public importance heard on their merits.

It will be interesting to see how the Courts analyze the broader considerations at the interests of justice stage considering that both defendants and plaintiffs are subject to the third stage of the test. Plaintiffs and defendants should be mindful of their own conduct with respect to lengthy delays in civil proceedings when considering an application to dismiss a claim for want of prosecution.

If you are seeking legal services or you have questions regarding the content of this article, please do not hesitate to contact Michael Furyk or Dessa Booth.

[1] Giacomini Consulting Canada Inc v The Owners, Strata Plan EPS 3173, 2023 BCCA 473.

[2] Drennan v Smith, 2022 BCCA 86

[3] Ibid, at paras 59-63.

[4] Supreme Court Civil Rules, BC Reg 168/2009, s 1-3(1).

[5] International Capital Corporation v Robson Twigg & Ketilson, 2010 SKCA 48

[6] International Capital Corporation v Robson Twigg & Ketilson, 2010 SKCA 48, at para 45.

[7] Ibid.