If a claimant brings an action, but then fails to move forward with pursuing it, the defendant(s) may apply to dismiss the claim for want of prosecution.
Dismissal for want of prosecution is considered a draconian remedy that should not be ordered lightly. It should be reserved for circumstances in which inexcusable delay gives rise to a substantial risk that a fair trial of the issues in dispute will no longer be possible. There is no set amount of time that a defendant must wait before making the application. There is no set amount of delay that will be inexcusable or inordinate.
The following factors are to be considered by the judge hearing an application for dismissal for an action for want of prosecution:
- The length of the delay and whether it was inordinate;
- Any reasons for the delay either offered in evidence or inferred from the evidence, including whether the delay was intentional and tactical or whether it was the product of dilatoriness, negligence, impecuniosity, illness or some other relevant cause, the ultimate consideration being whether the delay is excusable in the circumstances;
- Whether the delay has caused serious prejudice to the defendant in presenting a defence and, if there is such prejudice, whether it creates a substantial risk that a fair trial is not possible at the earliest date by which the action could be readied for trial after its reactivation by the plaintiff; and
- whether, on balance, justice requires dismissal of the action.
The fourth factor encompasses the other three and is the most important consideration.
The onus is on the party seeking dismissal to show inordinate delay for which there is no credible excuse. Once it has been established that the delay is inordinate, a presumption of prejudice arises, and the party responding to the application has the onus of rebutting the presumption by showing that the applicant has not been prejudiced in their ability to have a fair trial.
Where it can be shown that the parties would have a fair trial notwithstanding the delay and some prejudice, the interests of justice generally require that the application for dismissal be dismissed and the claim be allowed to proceed.
Dismissal for want of prosecution was recently considered by the B.C. Supreme Court in the estate litigation context (although it started as a family law claim) in Varga v. Poole Estate 2023 BCSC 122. In Varga, the plaintiff commenced an action over seven years ago by filing a notice of family claim. The plaintiff sought a division of a 17.3-acre property near Tofino, B.C. that the defendant (who was alive at the time the action was commenced) purchased many years before meeting her. The plaintiff alleged that she was the defendant’s “spouse”. The defendant denied that he was the plaintiff’s “spouse”.
The defendant died nearly three years before the application for dismissal for want of prosecution was brought, after a long battle with cancer. The defendant’s estate continued to dispute that the plaintiff and the defendant were spouses. The defendant’s daughter (the litigation representative of the defendant’s estate) applied to dismiss the claim for want of prosecution.
The parties attended a judicial case conference in early 2017. The lawyers corresponded occasionally. The defendant filed a form F-8 financial statement (as required by the rules) but the plaintiff did not. There were intermittent and inconclusive settlement discussions, which were driven by the defendant. The defendant was never examined for discovery before his death and so his testimony was permanently lost. After the defendant’s death, the parties exchanged lists of documents, and the plaintiff unilaterally set the matter for trial. However, she did so without providing disclosure concerning the value of another property, which the defendant would have a claim to if the parties were found to be spouses.
Turning to the factors for dismissal for want of prosecution, the Court held that even though there had been some activity in the case, the passage of over seven years from the filing of the notice of family claim was inordinate delay. The Court did not accept the plaintiff’s excuses for the delay (which included that the defendant was frequently out of town and lived in Thailand for a period of time, and that the defendant changed lawyers). Although good faith attempts to negotiate a settlement may excuse delay, intermittent and fruitless discussions do not advance an action toward trial.
The Court held that the prejudice in this case was obvious and serious. The plaintiff was aware that the defendant was seriously ill with cancer even before she filed her claim. If the plaintiff had pursued her claim with reasonable diligence, she would have at least examined the defendant for discovery, and his testimony would be available and a fair and balanced trial would be possible. Instead, the plaintiff gained a significant and unfair advantage by delaying. The Court also observed the weakening of witnesses’ ability to recall long-ago events, and the loss of correspondence and documents.
The Court observed that the idea that the trial should proceed almost eight years after the claim was filed is “profoundly embarrassing”, and would make a mockery of the primary objective of the B.C. Supreme Court Family Rules, which is to secure the just, speedy, inexpensive and proportionate determination of matrimonial disputes. The B.C. Supreme Court Civil Rules have a similar objective.
The Court dismissed the plaintiff’s claim for want of prosecution.
This case serves as an important reminder that if you commence an action, you deed to pursue it with reasonable diligence, or else you risk your claim being dismissed without a determination of its merits.