Introduction
The British Columbia Court of Appeal (BCCA) recently made a precedent-setting decision on dismissal of civil action for want of prosecution in Giacomini Consulting Canada Inc. v. The Owners, Strata Plan EPS 3173, 2023 BCCA 473 [Giacomini]. The decision is of interest to those involved in construction litigation, which is well known for being lengthy and expensive. The new test for dismissal of civil action for want of prosecution may help alleviate this problem; at the very least, it gives defendants a broader ability to take action against inordinate and inexcusable delay. However, as discussed below, it is unlikely to cause a radical change in the length and expense of complex multi-party construction disputes.
Key Takeaways
- The BCCA has revised the test for dismissal of civil action for want of prosecution in British Columbia. The test is now:
a) Has the defendant established that the plaintiff’s delay in prosecuting the action is inordinate?
b) Is the delay inexcusable?
c) If the above 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? - The question of prejudice is no longer a stand-alone criterion. Instead, it is to be considered among all other relevant circumstances when determining whether it is in the interests of justice for the case to proceed despite the existence of inordinate and inexcusable delay.
- The revised test lowers the threshold for defendants to successfully apply for dismissal of civil action for want of prosecution, including in the construction context. However, the Court acknowledged that construction litigation is often complex and requires significant time for investigation, making lengthy litigation justifiable in many cases.
Background
In Giacomini, Giacomini Consulting Canada Inc. (the “Appellant”) supplied HVAC-related components to the relevant project. The strata corporation (the “Respondent”) initiated an action claiming alleged failures in the HVAC system constituting a breach of warranty. The Appellant was one of several defendants in the action.
The Respondent commenced the action in August 2019. By January 2023, when the Appellant filed their application to dismiss the action for want of prosecution, the Respondent had taken no steps to list and produce documents, set examinations for discovery, or schedule a trial date.
The chambers judge, applying the long-standing test for dismissal of civil action for want of prosecution, found that the delay in this case was inordinate and inexcusable, satisfying the first two stages of the test. At the third stage, which asks whether the defendant has suffered serious prejudice, the judge held that no such prejudice was caused by the delay. She found that the prejudice must affect the defendant’s ability to defend the action to satisfy the third stage, which was not the case in Giacomini.
The Appellant argued that the judgment highlighted flaws in the long-standing test. They focused their critique on the third part of the test, claiming it overemphasized the Respondent’s interest in a trial on the merits at the expense of other crucial interests, such as public confidence in the administration of justice.
The Revised Test
It was common ground on the appeal that undue delay undermines public confidence in the administration of justice. A unanimous decision authored by Madam Justice Horsman, held that the former test did not adequately address this issue.
Justice Horsman emphasized that defendants have an interest in the expeditious resolution of legal disputes that goes beyond their ability to defend themselves. The stand-alone criterion requiring prejudice to a defendant’s ability to defend an action prevented courts from giving adequate weight to other factors relevant to the interests of justice. Therefore, the Court removed the stand-alone criterion of litigation prejudice, modifying the test for dismissal of civil action for want of prosecution to a three-part inquiry. The first two parts remain the same, and the new third part is as follows: Is it in the interests of justice for the action to proceed despite the existence of inordinate and inexcusable delay?
Under this modified test, prejudice is considered as a factor in assessing whether it is in the interests of justice for the action to proceed, but it is not the sole factor. The Court endorsed the non-exhaustive list of factors set out by the Saskatchewan Court of Appeal in International Capital Corp. v. Robinson Twigg & Ketilson, 2010 SKCA 48 at para 45. Justice Horsman added an additional factor to the non-exhaustive list: the merits of the action.
Justice Horsman concluded by qualifying the Court’s decision, cautioning that the test should not be seen as an invitation for defendants to routinely file applications for dismissal for want of prosecution. She also emphasized that adjudication of cases on their merits remains an important consideration.
Application to the Case at Bar
Unfortunately for the Appellant, while they successfully argued that the test for dismissal of civil action for want of prosecution required modification, it did not change the outcome of their application. Given the context of a complex multi-party action involving defects that required time to investigate, the lack of litigation prejudice, the lack of definitive evidence of prejudice to the Appellant’s business interests, and the Appellant’s inaction between May 2021 and January 2023, the Court held that the interests of justice allowed the claim to proceed to trial.
Implications of the New Test
The impact of the Giacomini decision on applications for dismissal of civil action for want of prosecution will become clearer as more decisions applying the test are issued. However, some decisions from the Supreme Court of British Columbia have already applied the new test.
There have been at least three cases where application of the new test resulted in successful applications for dismissal of civil action for want of prosecution: Ramirez Carabantes v. Ivanhoe Cambridge Inc./Ivanhoe Cambridge I Inc., 2024 BCSC 520, Kyle v. Zimmer, 2024 BCSC 500 [Kyle], and Domirti v. Crescenzo, 2024 BCSC 422. Notably, in Kyle, Justice S. Wilson granted the application despite there being no evidence to suggest that the defendants would suffer prejudice in their ability to defend the action. Therefore, it appears that the new test has succeeded in preventing litigation prejudice from being the dominating factor in the analysis.
On the other hand, the new test only goes so far. Considering Justice Horsman’s acknowledgment that the nature of some actions will necessitate lengthy litigation, it appears that in certain contexts, including complex construction disputes, lengthy and expensive litigation will remain the norm in British Columbia. For example, in Ghag v. Ghag, 2024 BCSC 400, Justice D.K. Hori dismissed the application despite the plaintiff taking no steps to advance the action for over five years, citing the minimal prejudice to the defendant as a result of the delay as tipping the balance towards allowing the action to proceed.
Conclusion
In conclusion, the BCCA’s decision in Giacomini has made it easier for defendants to successfully apply for dismissal of civil action for want of prosecution. The stand-alone requirement of prejudice to a defendant’s ability to defend the action has been removed in favor of a comprehensive analysis of all relevant circumstances. As a result, defendants can achieve dismissal even in cases where the delay has had minimal to no impact on trial fairness. While this is a positive step toward addressing the problem of lengthy and expensive litigation in British Columbia, it is unlikely to bring about radical change, especially in the context of complex disputes such as construction litigation involving multiple parties and significant investigatory requirements.
For more information, please contact a member of Whitelaw Twining’s Construction Group.
Written by Nabeel Moallem and Jamie Cooper, with contribution from summer student, Ezra Saul.