Prosecute or Get off the Pot: Dismissing for Want of Prosecution

When a party commences litigation, the courts and rules of court provide plaintiffs a fair amount of latitude to control the pace of their case and to determine how and when the matter proceeds to the next steps in litigation. This discretion allows the plaintiff the time necessary to obtain proper counsel if they so choose and to have meaningful settlement discussions and prepare evidence prior to trial. However, the control given to plaintiffs can also be a source of frustration to defendants who are anxious to proceed to trial when they expect to be exonerated.

As is illustrated in the recent decision of Scurfield v Air Canada, 2017 BCSC 1437 (CanLII) there is a limit to how much the courts will countenance a plaintiff taking the time with their case.

In 2008 Mr. Scurfield was practicing as a lawyer in Alberta. He alleged that in March of that year on a Jazz Air flight from Calgary to Kamloops he was falsely accused of vandalizing a washroom on a plane by urinating all over it. He further alleged that the cascade of events which followed this false allegation included Mr. Scurfield being wrongly detained and assaulted by flight crew, the RCMP being provided false information about his activities and the RCMP falsely arresting and imprisoning him as well as causing injury during the arrest.

Mr. Scurfield commenced his claim one day before the expiration of the applicable limitation period naming the airline, the RCMP and others as defendants. 11 months later Mr. Scurfield served his list of documents. He did not respond to a request for particulars and was not diligent in providing copies of his listed documents. He made no apparent attempts to put any parties under oath and conduct an examination for discovery.

There were several cautions by the defendants about the inordinate delay in Mr. Scurfield prosecuting his case that apparently fell on deaf ears. Finally, the defendants made a settlement offer advising that the offer would be brought to the attention of the court in the event that Mr. Scurfield rejected the offer and opposed an application for want of prosecution.

The court noted that Rule 22-7(7) of the Supreme Court Civil Rules provided authority to dismiss a claim for want of prosecution and that the well-established test for applying this rule was affirmed in 0690860 Manitoba Ltd. v. Country West Construction Ltd., 2009 BCCA 535 (CanLII) and includes consideration of the following factors:

  • the length of the delay and whether it is inordinate;
  • the reasons for the delay and whether the delay is excusable;
  • 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 and after its reactivation by the plaintiff; and
  • whether on balance, justice requires dismissal of the action.

The court concluded at para. 22 that “…there has been a lengthy delay, it is inordinate and no excuse has been offered and the delay has caused prejudice, creating a substantial risk that a fair trial is not possible.”

Mr. Scurfield attempted to stave off the application by firing his counsel immediately before the hearing of the application. He also filed a Notice of Intention to Proceed (required when there has been no steps in litigation for a year), but did nothing thereafter. These were not considered meaningful attempts at prosecuting the claim nor excused Mr. Scurfield’s failure to do so and, as such, the Court dismissed the action for want of prosecution and awarded costs of the application and litigation to the defendants.

It should be noted that courts will not generally entertain an application for dismissal for want of prosecution where the applicable limitation period has not expired. It should also be noted that the determination of whether to dismiss for want of prosecution is expired is a fact-driven exercise which might consider a myriad of facts.

All that said, Mr. Scurfield’s case is illustrative of the fact that plaintiffs are under an obligation to pursue their claim with or without counsel. Defendants have a right to defend themselves and that right must be respected by the claim proceeding in a manner that preserves the evidence and witnesses that defendants and justice might require.

If you have commenced a claim and are having difficulties in pushing the matter forward, it may make sense to obtain proper legal advice on how to prosecute your claim or even to represent your interests in a dispute before facing an application for dismissal for want of prosecution. Conversely, if you have been named in a claim which seems to be going nowhere, it might be in your interests to obtain proper legal advice respecting or to retain counsel to evaluate the chances of success and seek an application to dismiss the claim for want of prosecution.

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