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Dismissing a claim for “want of prosecution” is a tall order

Defendants are sometimes faced with plaintiffs who file claims and then do nothing or very little to advance their claims. There is always the question of what do to with these claims. There are a few different strategies that a defendant can take.

One strategy is for the defendant to engage in the lawsuit, bring applications, conduct discoveries, and so on. If the plaintiff has no real interest in advancing the claim, this can become evident quite quickly. The plaintiff fails to attend discoveries or Court applications, or fails to follow Court orders that require the plaintiff to take various steps in the litigation. Over time, these delinquencies can give grounds to dismiss a plaintiff’s case, for not following the rules or Court orders.

Another strategy is to let sleeping dogs lie. In the Supreme Court of British Columbia, the parties drive the litigation. If the plaintiff does nothing, and the defendant does nothing, the claim sits. If this continues for a long enough period of time, the defendant can eventually apply to dismiss the plaintiff’s claim for “want of prosecution.” While this strategy is an attractive one – as it requires the defendant to do nothing – it does not easily lead to a dismissal, as the defendant in Pardy v. Levant, 2015 BCSC 130 learned.

In Pardy the plaintiff sued the defendant for defamation arising out of defamatory statements made in a blog, a book, a newspaper and a television program between June 2008 and April 2011. The lawsuit was filed in June 23, 2010 and served on June 14, 2011. Lists of documents were exchanged by February 24, 2012. The plaintiff then took no formal steps in the lawsuit until two years and eight months later when she filed a notice that she intended to proceed.

In some jurisdictions, such as Alberta, there are “drop-dead” rules that automatically dismiss a plaintiff’s claim if no formal steps have been taken within a certain period of time (in Alberta it is two years). There are no “drop-dead” rules in British Columbia. As the Court set out in Pardy, the questions on an application to dismiss the claim for want of prosecution are 1) whether there was a delay, 2) whether there was an excuse for the delay, and 3) whether the defendant was prejudiced by the delay.

When there have been no formal steps taken in a lawsuit in several years, the Court is usually pretty quick to declare that there was delay and there was no excuse, as occurred in Pardy. The outcome then turns on the concept of prejudice: did the delay harm the defendant’s ability to defend the lawsuit?

As the defendant in Pardy learned, it can be very difficult to establish prejudice. Part of the problem is that lawsuits take such a long time to get to trial anyway, that it is often difficult to articulate why the plaintiff’s particular delay has made it is more difficult to mount a defence. If a defendant can usually expect a trial about four years after an incident, as in most cases, then why is six or seven years worse? A four year old memory may be better than a six year old memory – but by how much? Documents don’t change over time. In Pardy, many of the potential witnesses had also given evidence in a separate human rights case earlier, essentially preserving their recollection at an earlier time.

So while there is a temptation to let sleeping dogs lie in cases where plaintiffs are slow to advance their claims, employing this strategy to build toward an application to dismiss for want of prosecution can be a very tall order. The strategy can also be scuttled at the whim of the plaintiff. That does not mean this strategy is never effective: some sleeping dogs never wake up at all. If they do, however, it is tough to put them back down.

Christopher_McDougall2Christopher McDougall