Commercial Litigation and Dispute Resolution Blog

The B.C. Court of Appeal recently revised the test for the dismissal of a civil claim for delay, known in legalese as “want of prosecution.” They did so by replacing the narrow requirement of proving prejudice caused by a delay with a broader inquiry into whether the continued prosecution of a long-standing claim is in the “interests of justice.”

In Giacomini Consulting Canada Inc. v. The Owners, Strata Plan EPS 3173, 2023 BCCA 473^[1], the appellants argued that the existing test was unduly narrow and prioritized a plaintiff’s interests in a trial over a broader public confidence in the administration of justice and the timely adjudication of civil disputes.  A 5-member division of the Court of Appeal agreed. 

The resulting changes to the test for dismissing a civil claim for want of prosecution are twofold.  First, prejudice to the defendant arising from delay is no longer a standalone element of the test, but rather one of several factors in a broader interests of justice inquiry. Second, the impact of delay on trial fairness or prejudice to a defendant alone will no longer be a determinative factor in dismissing a claim.  

What is a Want of Prosecution Application?

The civil rules governing lawsuits in B.C. seek to secure “the just, speedy and inexpensive determination of every proceeding on its merits.”  Where there has been inordinate and unexplained delay in advancing a claim (usually longer than about 3 or 4 years), the civil rules provide that a defendant can apply to dismiss the claim for “want of prosecution.” The delay must be such that it has negatively affected a defendant’s ability to engage in a fair trial.  

Before Giacomini, a successful want of prosecution application required the satisfaction of four elements: (i) has there been inordinate delay (ii) is the delay inexcusable; (iii) has caused serious prejudice to a defendant; and (iv) if these are established, on balance, does justice demand a dismissal of the action.

In Giacomini, the defendant applicant argued that the delay had caused them serious prejudice due to the stigma of having the litigation “hanging over their business.”  While acknowledging that evidence, the chambers judge ultimately held that the delay had not resulted in any obvious prejudice to the defendant in terms of the narrower idea of their ability to properly defend the case.

The New Test under Giacomini

Giacomini involved a construction dispute started by a strata corporation in August 2019. The strata had done nothing to advance its claim by January 2023.  As a result, the defendant sought dismissal for want of prosecution. While the chambers judge found that this 4.5 year delay was both inordinate and inexcusable, she ultimately dismissed the application, reasoning that the delay had not prejudiced the defendant’s ability to engage in a fair trial.

The appeal court began by acknowledging “an apparent pattern of delay in civil proceedings in British Columbia” which required a reconsideration of the test for dismissal for want of prosecution.  In our legal system, courts develop the common law over the course of years to address the shifting interests and priorities within society as a whole.  One of those societal concerns is the public interest in the administration of justice, including the resolution of private civil lawsuits within a reasonable time. The appeal court raised a concern that “unreasonable delays in civil proceedings cause systemic harm in undermining public confidence in the justice system and the public interest in a justice system that delivers timely and affordable justice.”  The justices noted that the present law on want of prosecution undervalued this broader public interest in favour of a narrower focus on the almost-unfettered right of plaintiffs to have cases heard “on the merits”, no matter how long it took.

In what the press and angry politicians often decry as “judge made law,” the appeal court decided to remedy this imbalance by changing the legal test for want of prosecution, a “judicial creation” itself.  They did so by altering the final elements of the existing legal test to consider “the interests of defendants, and society more generally, in the expeditious resolution of civil disputes.” The appeal court affirmed the first two elements of the test for dismissal, which are:   

(1) has the defendant established inordinate delay in the plaintiff’s prosecution of their claim; and

(2) is that delay inexcusable.

Assuming these two elements are answered affirmatively, the appeal court dispensed with the existing “presumption of prejudice” and introduced their “judicial revision” to the remainder of the analysis. They did so by removing the discrete elements of (a) “serious prejudice to the defendant arising from delay;” and (b) “the impact of the delay on trial fairness” as the overriding factor. These were replaced with a much broader consideration:

(3) Is it in the interest of justice for the claim to proceed despite the existence of inordinate and inexcusable delay?

In answering this question, many of the past considerations remain, such as: (a) the length of the delay; (c) the stage of the litigation; (d) the reasons for the delay; and (e) the prejudice to a defendant’s ability to defend the claim on the merits. 

However, the appeal court introduced an array of additional considerations as a “useful starting point” in assessing this broader interests of justice analysis. These “non-exhaustive” factors include: (a) the prejudice the defendant will suffer defending the case at trial; (b) the length of the delay; (c) the stage of the litigation; (d) the impact of the delay on the defendant’s professional, business, or personal interests; (e) the context in which the delay occurred, in particular whether the plaintiff delayed in the face of pressure by the defendant to proceed; (f) the reasons offered for the delay; (g) the role of counsel in causing the delay; and (h) the public interest in having cases that are of genuine public importance heard on their merits.

Takeaway

The two significant takeaways of the Giacomini decision are:

1. It is now no longer necessary to prove actual prejudice to a defendant’s ability to defend a claim on the merits in order to succeed on a want of prosecution application. In addition, prejudice to a defendant will not necessarily be inferred anymore.  Instead, while there is “no obligation on the defendant . . . to take any steps to move the plaintiff’s case forward,” a defendant’s failure to do so is now relevant.  As a result, a “defendant’s inaction in the face of lengthy delay by the plaintiff may weigh against dismissal of the action.”
2. As part of delay applications, the courts will now apply a far broader “interest of justice test.” One key element is the public interest in the timely resolution of civil claims because “undue litigation delay undermines public confidence in the justice system, and should not be countenanced.”  While a “plaintiff’s interests in a trial on the merits remains an important consideration,” it must be balanced against those of “the justice system as a whole.”

While the weight placed on each of these broader considerations at the interests of justice stage, and the burden to discharge it, remains to be seen, both defendants and plaintiffs must now engage with the third stage of the test. This means defendants should be mindful of their own conduct, both during and as a result of any delay in civil proceedings, if they are considering making an application to dismiss a long-standing claim against them for delay.

^{[1] Giacomini Consulting Canada Inc. v. The Owners, Strata Plan EPS 3173, 2023 BCCA 473 (CanLII), <https://canlii.ca/t/k1stv>, retrieved on 2024-01-11}