Carfra Lawton LLP | Victoria BC

Action Survives Despite Inordinate and Inexcusable Delay

The British Columbia Supreme Court in 0768184 B.C. Ltd. v. Dass, 2016 BCSC 2293 confirmed how difficult it can be for a defendant to have an action dismissed for want of prosecution. In this case the plaintiffs sued their realtor alleging fraudulent and negligent misrepresentation, breach of fiduciary duty, and conspiracy to injure.

The action was filed in September 2010. The plaintiffs also made a complaint to the Real Estate Council of B.C. That process was resolved in January 2013. By March 2016, despite numerous requests, the plaintiffs had yet to deliver a list of documents. Only after being served with an unfiled dismissal application did the plaintiffs deliver a list of documents, schedule a discovery, deliver a notice to mediate and set a trial for April 2018.

In determining whether the action should be dismissed, the court considered whether the delay was inordinate, inexcusable, whether it has or is likely to cause serious prejudice and whether on balance justice required dismissal of the action.

Although the court found there to be inordinate delay, given it would be almost 10 years between the material event underlying the claim and the time of trial, and the delay to be inexcusable, the court ultimately held that, given the plaintiff’s lack of sophistication and finances, the interests of justice did not demand dismissal of the action.

Case summary by Caroline Alexander