On December 18, 2023, a division of five justices of the British Columbia Court of Appeal overturned the long-standing test for dismissal of an action for want of prosecution in Giacomini Consulting Canada Inc. v. The Owners, Strata Plan EPS 3173, 2023 BCCA 473 (Giacomini).

The change in law came on the heels of several recent cases that highlighted the challenges with the former test, which effectively required a defendant to establish that their ability to defend the action had been or would likely be seriously prejudiced before the court would consider dismissing an action for inordinate and inexcusable delay. As discussed in further detail below, this test had come to represent an almost impossible bar to meet, leaving many commercial defendants frustrated with the inability to clear litigation claims from their books without risking the significant costs and potential adverse findings of a summary trial.

In Giacomini, the Court of Appeal held that the existing test for dismissing an action for want of prosecution failed to adequately account for the interests of the defendant and the public in an efficient justice system.¹ The new test established in Giacomini attempts to redress the imbalance by asking whether it is in the interest of justice to allow an action to proceed despite the existence of inordinate and inexcusable delay. Whether the delay will or is likely to cause serious prejudice to the defendant is a relevant, but no longer determinative, factor in the analysis.

Critique of the former test

The appellants in Giacomini successfully argued that the former test had created a “culture of complacency” towards delay in the civil justice system by condoning ongoing inordinate and inexcusable delay “so long as the delay does not result in the risk of serious prejudice to the defendant’s ability to defend the action.”² Although prejudice to a fair trial was not an explicit requirement of the former test, the Court of Appeal acknowledged that in practice this had become the threshold criterion in British Columbia.

Under the former test, to dismiss an action for want of prosecution, it was necessary to establish (i) that there had been inordinate and inexcusable delay; (ii) that the delay had prejudiced or would likely prejudice the defendant; and (iii) that it was in the interest of justice to dismiss the action. It was under this final stage of the test that it had become generally accepted that the interests of justice require that a proceeding continue if a fair trial was still possible despite the delay.³

The challenge with this formulation of the test was that as the average time required to bring an action to trial became incrementally longer and therefore normalized, the standard for assessing the impact of the passage of time on trial fairness also shifted. As a result, in the absence of exceptional circumstances, it has become increasingly more difficult to establish that delay will prejudice the ability of a defendant to obtain a fair trial.

The Court of Appeal acknowledged this issue in obiter in Drennan v. Smith, 2022 BCCA 86 (Drennan), a 2022 decision in which the Court allowed an appeal of a chambers decision which had dismissed an action for trespass and unjust enrichment for want of prosecution. The appeal was allowed on the basis that the chambers judge had misapprehended the evidence in finding that the defendant had been seriously prejudiced by the delay. However, in response to the plaintiff’s argument that the five-year delay at issue was not unusual in civil actions, the Court noted in obiter:

If that is an accurate depiction of civil litigation practice in British Columbia, it may be time to revisit the legal test for dismissal.⁴

Approximately a year and a half after the Court of Appeal expressed concern regarding the normalization of a 5-year delay in Drennan, the B.C. Supreme Court refused to dismiss an action that had been inactive for 14 years.

In Osprey Park Operations Mid-Island Ltd. v. British Columbia, 2023 BCSC 1811 (Osprey Park), the Province sought to dismiss an action that had been commenced in 2003, and following which no further steps had been taken. The chambers judge agreed with the Province that the 14-year delay was inordinate and inexcusable, noting that although the delay was the fault of the plaintiff’s former counsel, this “softened” but did not excuse the delay.⁵ The Court also accepted that the delay was prejudicial to the Province given the complexity of the claim, and the potential loss of witnesses and deterioration of witness memory.⁶ However, when assessing whether it was in the interests of justice to dismiss the action, the Court held that the fading of witnesses’ memory did not necessarily mean that the defendant would be deprived of a fair trial, recognizing that the “court not infrequently hears and decides cases, both civil and criminal, involving disputed events that took place long ago,” and judges routinely allow for difficulty of witness recollection.⁷

In the result, the Court held that it would be unjust to dismiss a potentially meritorious claim due to delay because the trial could still be justly decided.

Osprey Park, which was released just two days before the Giacomini appeal was argued, was cited by the Court of Appeal as an example of how the emphasis on trial fairness in the jurisprudence has permitted actions to proceed despite the existence of inordinate and inexcusable delay that is likely to cause serious prejudice to the defendant.⁸ The Court of Appeal held that this approach fails to recognize that unreasonable delay in the prosecution of an action undermines public confidence in the justice system, regardless of whether the delay affects the ability of the defendant to defend the action.⁹

The revised test

To address this imbalance, the Court of Appeal modified the existing test by removing serious prejudice to the defendant as one of the prerequisites for dismissal. Following the precedent established by the Saskatchewan Court of Appeal in International Capital Corporation v. Robinson Twigg & Ketilson, 2010 SKCA 48, the Court formulated the following new test for dismissing an action for want of prosecution:

1. Has the defendant established that the plaintiff’s delay in prosecuting the action is inordinate?
2. Is the delay inexcusable?
3. If yes to both questions 1 and 2, is it in the interests of justice for the action to proceed despite the existence of inordinate and inexcusable delay?

When assessing whether it is interests of justice to allow the action to proceed, the court may consider the following list of non-exhaustive factors:

1. the prejudice the defendant will suffer defending the case at trial;
2. the length of the delay;
3. the stage of the litigation;
4. the impact of the delay on the defendant’s professional, business, or personal interests;
5. the context in which the delay occurred, in particular whether the plaintiff delayed in the face of pressure by the defendant to proceed;
6. the reasons offered for the delay;
7. the role of counsel in causing the delay;
8. the public interest in having cases that are of genuine public importance heard on the merits; and
9. the merits of the action (i.e. if the action is bound to fail, then the interests of justice favour its dismissal).¹⁰

Implications of the new test

Although the new test established in Giacomini will likely be applauded by many litigators and litigants alike as a welcome change to the “culture of complacency” fostered by the former jurisprudence, the impact of the new formulation of the law remains to be seen.

In her concluding remarks on the new test, Justice Horsman warned against perceiving the revision of the test as “an invitation to defendants to bring applications for dismissal for want of prosecution as a matter of routine.”¹¹ The Court cautioned that the objective of the new test is to achieve a more balanced assessment of the competing interests of the defendant and the public in an efficient and cost-effective judicial system, but the onus will remain on the defendant to establish that the interests of justice justify depriving the plaintiff of their presumptive entitlement to an adjudication on the merits.

The Court also issued a reminder that defendants have other avenues available if they wish to increase the pace of litigation, such as setting timelines for pre-trial steps in a case plan order. Although the Court recognized that a defendant has no obligation to take any steps to move a plaintiff’s case forward, it was noted that inactivity on the part of a defendant during a plaintiff’s delay could weigh against dismissal at the interests of justice stage of the analysis.¹²

The Court of Appeal used the facts before it to illustrate this point. Despite agreeing with the appellants that the test for dismissal for want of prosecution needed to be revised, the Court of Appeal ultimately held that it was in the interests of justice to allow the respondent to proceed with its claim against the appellants.¹³ Among the factors that the Court considered was that counsel for the appellants had initially filed an application for dismissal for want of prosecution in February 2021, and in May 2021 proposed to adjourn the application on the condition that the respondent file an amended notice of civil claim within one month. Counsel for the respondent agreed to adjourn the application generally, and stated, “We will get back to you shortly with respect to amendments/timing.”¹⁴ However, there was no further direct exchange of correspondence between the parties until the appellants served their second application for dismissal for want of prosecution in January 2023. In concluding that it was not in the interests of justice to dismiss the action, the Court of Appeal noted, among other things, that the appellants had made no effort between May 2021 and January 2023 to press the respondent to commit to a deadline for filing an amended notice of civil claim or any other steps in the litigation.¹⁵

It is reasonable to expect that despite the Court of Appeal’s warning, many defendants will be considering whether this decision represents an opportunity to have outstanding claims against them dismissed. And although the plaintiff’s entitlement to adjudication on the merits remains the presumption, the Court of Appeal’s decisions in Drennan and Giacomini have sent an equally clear signal that delays of three to five years should no longer be considered the “norm” for civil litigation. It will be interesting to see how litigants respond to and make use of the new test going forward.

If you have questions about the implications of the new test or would like further information, please reach out to your trusted legal advisors in Dentons Canada's Construction and Litigation Dispute Resolution groups.

We would like the thank Mila Ghorayeb for her contributions to this article.

[1] Giacomini Consulting Canada Inc. v. The Owners, Strata Plan EPS 3173, 2023 BCCA 473 at paras. 54 & 56 – 57.
[2] Giacomini at paras. 52 – 53.
[3] Giacomini at para. 55 citing Ed Bulley Ventures Ltd. v. The Pantry Hospitality Corporation, 2014 BCCA 52 at para. 59.
[4] Drennan v. Smith, 2022 BCCA 86 at paras. 60 – 61.
[5] Osprey Park at para. 21.
[6] Osprey Park at paras. 26, 28, 34.
[7] Osprey Park at para. 39.
[8] Giacomini at para. 55.
[9] Giacomini at para. 56.
[10] Giacomini at paras. 66, 69 – 71.
[11] Giacomini at para. 75.
[12] Giacomini at para. 76.
[13] Giacomini at paras. 83 – 84.
[14] Giacomini at para. 11.
[15] Giacomini at paras. 82 – 83.