Prejudice No Longer a Requirement in Test for Dismissal for Want of Prosecution

In Giacomini Consulting Canada Inc. v The Owners, Strata Plan EPS 3173, 2023 BCCA 473, a five-member panel of the BC Court of Appeal revised the longstanding test for the dismissal of an action for want of prosecution. This change in the law could make it easier for defendants to succeed in their applications to dismiss an action where the plaintiff has been slow in moving their claim forward.

Giacomini involved a construction dispute regarding alleged defects in the HVAC system in a real estate development. The respondent strata corporation commenced the underlying action in August 2019, alleging that the appellant suppliers had breached an express warranty that certain HVAC components would perform to proper standards. The respondent served its notice of civil claim one year after filing it, in August 2020. The appellants filed a response to civil claim on September 29, 2020.

The appellants filed their first application to dismiss the action for want of prosecution in February 2021. However, they agreed to adjourn the application when the respondent agreed to file an amended notice of civil claim within one month and to consider moving the action from Chilliwack to Vancouver. However, months passed and the respondent took neither of these steps.

On January 31, 2023, the appellants again applied to dismiss the action for want of prosecution, claiming that the ongoing litigation was causing prejudice by damaging the appellants’ reputation. In its response, the respondent provided explanations for the delays including the COVID-19 pandemic and the need for ongoing investigation of the alleged defects.

The chambers judge dismissed the appellants’ application, applying the old test for dismissal for want of prosecution:

a. Has there been inordinate delay?

b. If there has been inordinate delay, is the delay inexcusable?

c. Has the delay caused, or is it likely to cause, serious prejudice to the defendant?

d. If these factors are established, does justice demand the dismissal of the action.

The chambers judge found that given that the respondent had taken no steps to advance the litigation for a period of 21 months, the delay was inordinate. Further, she found that the delay was unreasonable and, therefore, inexcusable. However, she found that the delay had not caused the appellants serious prejudice because, while they may have experienced stigma due to the ongoing action, the delay did not impact their ability to defend the action.

On appeal, the BCCA ultimately agreed with the result of the chambers judge’s decision. It found that the appellants could have done more to press the respondent to amend its pleading and take other substantive steps, and that the respondent, rather than allowing the action to lie dormant, had indeed been conducting further investigations while the litigation was ongoing. Therefore, the BCCA decided against dismissing the action.

More significantly, however, the Court overhauled the test for want of prosecution by removing the requirement of litigation prejudice. The Court noted that delay in the context of civil proceedings has the effect of decreasing public confidence in the justice system. It held that the existing test did not fully account for the harm caused by such delay. The fact that the test set such a high bar had created a “culture of complacency” toward delay in the litigation process.

The revised test for dismissal of an action for want of prosecution is as follows:

a. Has the defendant established that the plaintiff’s delay in prosecuting the action is inordinate?

b. Is the delay inexcusable?

c. If the first two questions are answered in the affirmative, is it in the interests of justice for the action to proceed despite the existence of inordinate and inexcusable delay?

Thus, the first two elements of the test are unchanged, but the third element supplants the need for serious prejudice with a broader focus on the interests of justice. Prejudice will still be a factor to be considered under the third branch of this test, but it will no longer be the deciding factor.

This important decision provides a more flexible framework for approaching applications to dismiss an action for want of prosecution by no longer requiring that the applicant demonstrate that their ability to defend the claim has been seriously prejudiced by the plaintiff’s delay. This will likely make it easier for defendants to dismiss actions which have been languishing due to excessive delay.