Beyond Serious Prejudice: The BCCA Establishes a New Test to Dismiss for Want of Prosecution

January 24, 2024

Written By David Gruber, Jennine Punzalan and Maruska Giacchetto

Not infrequently, a plaintiff loses interest in pursuing litigation without being willing to discontinue or settle, or starts litigation to preserve a limitation period without being committed to pursue it. Rule 22-7(7) of the B.C. Supreme Court Rules states that if it appears to the court that there is a want of prosecution in a proceeding, the court may order to dismiss the case.  This rule has been applied based on analysis using a court-established test. But defendants in British Columbia who sought to use the rule to put an end to dormant litigation have often been frustrated in their attempts.

In Giacomini Consulting Canada Inc v The Owners, Strata Plan EPS 3173, 2023 BCCA 473 [Giacomini], the Court of Appeal of British Columbia revised this existing test. The previous test required the court to determine whether the inordinate and inexcusable delay caused “serious prejudice” to the defendant. Such serious prejudice was defined as prejudice that impacts the defendant’s ability to defend the action. In Giacomini, the Court found this definition to be too limited. It prevented a full, flexible consideration of the impacts of an inordinate and inexcusable delay on the interests of justice.

The new test revised the serious prejudice analysis to a more general question: is it in the interests of justice for the action to proceed despite the existence of inordinate and inexcusable delay? The Court also listed the various factors that would be useful to examine what the interests of justice are in each case.

On balance, the new test does not provide any sort of guarantee for disgruntled defendants that delay alone can be relied upon to obtain a dismissal. However, it does considerably expand what a court considers to be in the interests of justice for both parties. The new test established in Giacomini thus provides an additional avenue to promote timely and cost-effective resolution of disputes. 

Background

The Action pertained to a construction dispute involving an HVAC system installed in a residential tower (the Residential Tower). The Plaintiff was a strata corporation (the Strata Corporation) representing several owners of the Residential Tower, namely the owners of Strata Plan EPS 3173. In August 2019, the Strata Corporation filed a civil claim at the Chilliwack Registry against numerous parties, including Giacomini Consulting Canada Inc. and Giacomini S.P.A. (collectively, Giacomini or Defendants). Giacomini were the supplier of HVAC-related components, namely radiator and fan coils, to the Residential Tower.

In February 2021, Giacomini filed an application to strike a portion of the Plaintiff’s pleading or to dismiss the claim against them for want of prosecution. In May 2021, Giacomini’s counsel proposed to adjourn the applications subject to receiving an amended notice of claim within one month from the Strata Corporation and to move three related actions from the Chilliwack’s Registry to Vancouver’s Registry. While the Plaintiff agreed to adjourn the applications, they failed to amend the pleadings until March 2023 and failed to produce a list of documents. Subsequently, Giacomini filed an application to have the Action dismissed for want of prosecution in the Supreme Court of British Columbia on January 31, 2023.

The Decision of the Supreme Court of British Columbia

In assessing whether the Action against Giacomini was to be dismissed for want of prosecution, the Chambers Judge, Madam Justice Walkem, applied the existing test, as described in Wiegert v Rogers,¹ which required the Court to assess (1) whether there has been inordinate delay, (2) if so, whether the delay is inexcusable, (3) whether the said delay caused, or is it likely to cause, serious prejudice to the defendant, and (4) if the former factors have been established, on balance, whether the interests of justice demand a dismissal of the action.²

In applying the aforementioned test, Justice Walkem found that that there was inordinate delay on the part of the Strata Corporation and that the delay was inexcusable. However, Justice Walkem rejected the argument that the delay in the litigation had caused Giacomini prejudice due to the stigma of having the litigation “hanging over their business.”³ The stigma was insufficient to establish “serious prejudice”, with the only relevant prejudice being prejudice which impacts the defendant’s ability to defend the action. Thus, Justice Walkem concluded that it was not in the interests of justice to dismiss the claim for want of prosecution.⁴

The Court of Appeal Decision

Giacomini appealed the decision of the Chambers Judge in the Court of Appeal of British Columbia and concurrently asked the Court of Appeal to revise the existing test for dismissal for want of prosecution.

The Appellate Court was formed of a five-member division which allowed the Court to consider whether the existing test for dismissal for want of prosecution should be revised.⁵ The Honourable Madam Justice Horsman, writing for the Court of Appeal, concluded that the existing test in British Columbia did not permit a full consideration of the public interest. The existing test failed to adequately account for the impact of the unreasonable delay on the interests of defendants beyond their ability to defend the action, and failed to consider broader impacts on the justice system.⁶Nevertheless, the Court of Appeal dismissed the appeal of the Chambers Judge’s decision finding that it was in the interests of justice to allow the action to proceed.

Using the revised test (as defined below), the Court of Appeal concluded that it was in the interests of justice to allow the Strata Corporation’s action against Giacomini to proceed, despite the delay. Giacomini’s claim of prejudice lacked detail, and they had made no effort to press the Strata Corporation to commit to a clearer timeline on next steps. Additionally, the Strata Corporation’s delays were justified: an ongoing investigation of the construction defects that were the basis of the claim identified additional defects.⁷

The Revised Test for Dismissal for Want of Prosecution

The Court of Appeal of British Columbia modified the test as follows:

1. Has the defendant established that the plaintiff’s delay in prosecuting the action is inordinate?
2. Is the delay inexcusable?
3. If the questions in (1) and (2), which are to be answered in accordance with the law that has developed in British Columbia under the previous test, have been answered in the affirmative, the Court then must ask if it is in the interests of justice for the action to proceed despite the existence of inordinate and inexcusable delay?⁸

The Court of Appeal explained that at the interests of justice stage “the court should look to all relevant circumstances rather than prioritizing the impact of delay on trial fairness.”⁹ Thus, citing International Capital Corporation v Robinson Twigg & Ketilson,¹⁰ the Court of Appeal stated that the following non-exhaustive factors were useful in assessing whether the interests of justice justify proceeding with the action regardless of the delay:

• 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 is 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.¹¹

The Court of Appeal added that the merits of the action should also be included to the list of relevant factors to consider under the third branch of the test. Finally, in concluding, the Court of Appeal made the following three comments:

• First, a dismissal for want of prosecution may not be excessively harsh or punitive if it can be demonstrated that it is not in the interests of justice to allow an action characterized by delay to continue;
• Second, the revised test is not an invitation to defendants to bring applications for want of prosecution as a matter of routine. As such, an application for dismissal for want of prosecution should only succeed if the court can be persuaded that the interests of justice justify depriving the plaintiff of its presumptive entitlements to an adjudication on the merits;
• Finally, there are avenues for the defendants to advance a claim facing delays. Thus, the defendant’s inaction in the face of a lengthy delay could weight against an application for dismissal for want of prosecution.¹²
  

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