Dismissal for Want of Prosecution: Inordinate and Inexcusable Delay Not Enough

In Smith v. Madigan, 2023 BCSC 620, defendants were again reminded of the significant hurdles faced in seeking to have a claim dismissed for want of prosecution despite a plaintiff’s inordinate and inexcusable delay.

In Smith, the self-represented plaintiff had commenced an action in September of 2017 as against the defendants. Following service of the notice of civil claim, about eight months after it had been filed, the plaintiff did not initiate any of the further basic steps typical of similar litigation. He had conducted no examinations for discovery and no trial date had been set. One of the defendants had conducted an examination for discovery of the plaintiff in January and May of 2022.

Both defendants brought simultaneous applications to dismiss for want of prosecution in January of 2023. On hearing the defendants’ respective applications to dismiss for want of prosecution, the Court reviewed Rule 22-7(7):

(7) If, on application by a party, it appears to the court that there is want of prosecution in a proceeding, the court may order that the proceeding be dismissed.

In reviewing Rule 22-7(7), the Court noted that “[t]he core purpose of the Rule is to end litigation that has not been prosecuted for so long that there is a substantial risk that a fair trial will no longer be possible”.

On the evidence presented, the Court found that the plaintiff’s delay in prosecuting his action was “inordinate and inexcusable”. However, the Court also found that the defendants had not established that the plaintiff’s delay in prosecuting the action was tactical. Instead, it appeared to have been dilatory. The Court noted that while the plaintiff’s delay in getting the case to trail might result in prejudice to some or all parties because witness memories may fade, the defendants had not established that a crucial component of the evidence was no longer available because of the delay.

As a result, the Court found that the evidence on the applications did not go so far as to identify specific prejudice that would prevent a fair trial on the merits if the trial was set for the earliest possible date on which the parties would be ready to proceed. As such, the Court held that the interests of justice did not require dismissal of this action at the time of hearing the applications.

The Takeaway

When considering an application to dismiss a claim for want of prosecution, defendants should consider that simply relying on the passage of time, even if it has been many years, is likely not enough in and of itself to secure a dismissal. The crucial component needed is to show specific prejudice that would prevent a fair trial on the merits. This likely means pointing to some kind of evidence that is no longer available because of the plaintiff’s delay.