by Christine Stewart, August 2011
In a recent decision, the BC Supreme Court dismissed the plaintiff’s claim for want of prosecution emphasizing the object of the Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits. In the case of Rangi v. Lloyd’s Underwriters, 2011 BCSC 1150, the court found that the plaintiff’s delay of almost 10 years resulted in the development of obstacles to a fair trial.
The decision provides a thorough summary of the case law that establishes the four part test for want of prosecution applications. The test comes essentially from two BC Court of Appeal decisions, Irving v. Irving, [1982] B.C.J. No. 970 and Busse v. Robinson Morelli Chertkow, 1999 BCCA 313, but can be summed up in these few points:
(1) has there been an inordinate delay;
(2) if so, was the inordinate delay excusable;
(3) did the inordinate delay cause, or is it likely to cause serious prejudice to the applicant; and
(4) do the interests of justice demand that the action be dismissed.
Over the nine year period since the action was commenced, the only steps taken in the litigation by the plaintiff were due to the efforts of the defendant in its attempts to push the matter along. This included an application to have the action dismissed in November 2005, at which time the presiding Master gave orders to ensure that the examination for discovery of the plaintiff would occur. Following that examination in January 2006, no further steps were taken by the plaintiff until the spring of 2011 – after the application for dismissal had been brought again.
In dismissing the claim, the court found no difficulty in concluding there was inordinate delay over the almost 10 years since the date of loss. The plaintiff attempted to excuse his delay by asserting that he had serious health issues that prevented him from prosecuting this action. This was contradicted by evidence of the plaintiff’s active involvement in numerous other actions during the same timeframe.
Having found the delay both inordinate and inexcusable, the case law confirms that prejudice to the defendant can be presumed. In addition, there was evidence of actual prejudice with the death of a material witness since the date of loss and evidence of the plaintiff’s own memory loss.
Finally, the court considered in whose favour the balance of the interests of justice lay. In concluding that there was a substantial risk that a fair trial was no longer possible, as a direct result of the plaintiff’s delay, the court held that the balance of interests of justice favoured a dismissal of the plaintiff’s action.
Christine Stewart
Associate Lawyer, Insurance Law and Litigation
Lindsay Kenney LLP – Vancouver Office