In most Canadian jurisdictions, a plaintiff’s claim can be dismissed for delay. Lord Salmon, in Fitzpatrick v. Batger & Co., [1967] 2 All E.R. 657, articulated the problem of dormant claims, as follows:
[The defendants] no doubt, however, were relying on the maxim that it is wise to let sleeping dogs lie. They had good reason to suppose that a dog which had remained unconscious for such long periods as this one, if left alone, might well die a natural death at no expense to themselves; whereas, if they were to take out a summons to dismiss the action, they would merely be waking the dog up for the purpose of killing it at great expense which they would have no chance of recovering.
In Alberta, the rules governing dismissal for delay have been in flux since the new Rules of Court1 were introduced in 2010. The Rules are now settled, and a body of jurisprudence is evolving.
There are two grounds for dismissal of a claim for delay: (1) a mandatory “drop dead” rule, and (2) a discretionary rule.
Under the “drop dead” rule, a claim must be dismissed if there has been no “significant advance” in an action in three years (absent the presence of a tolling agreement or court order). As well, a courtesy extension of time for filing a defence to a claim is not accounted for in the three year period. The three-year clock is reset every time a qualifying step occurs.
As one would expect, the legal arguments on applications to dismiss are focused on what is a “significant advance” in a claim. The only events that can advance an action are steps that are contemplated by the Rules, which lead towards trial. Clearly, discovery of documents or the conduct of oral discovery is considered an advancement. The provision of responses to undertakings by either party can be an advancement, unless the responses are of little significance or are perfunctory. The challenge with respect to the significance of responses to undertakings is that the inquiry as to their significance is generally beyond the scope of a chambers application, and the benefit of the doubt will be given to the plaintiff. However, the last-minute provision of responses to undertakings by the plaintiff may not be accepted as advancing the claim, as there is an unfairness that would arise if the plaintiff could keep its responses in reserve as a tool to keep alive otherwise dormant litigation.
A step that significantly advances an action must be completed, not just started. For instance, an application, filed and served but never heard, does nothing to advance a claim. Steps that tend to focus the issues, such as discontinuance by or against a party, or formal abandonment of parts of a claim, will be considered a significant advance.
Under the discretionary rule, a court may dismiss an action if there has been inordinate and inexcusable delay which has caused significant prejudice to the defendant. Each period of delay does not need to be more than three years. Instead, the court will look at the overall progress of the case where, for instance, it has been moved along in fits and starts over a period of seven or eight years.
In assessing inordinate and inexcusable delay, the court may look at the occurrence (but not the substance) of otherwise privileged settlement discussions as an excuse for delay.
The Rule provides that once inordinate and inexcusable delay is established, significant prejudice is presumed. Courts are reluctant, however, to strike any claim, especially based on a presumption. In practice, evidence of significant prejudice will be required, and the prejudice must occur during the period of the inexcusable delay. For instance, the death of a witness is obviously prejudicial. However, if the death occurred before the period of delay, it would not be considered prejudicial, as the prejudice would have arisen regardless of the delay.
Finally, as the effect of an application to strike for delay could be a final determination of the claim, hearsay is not permitted. All evidence must be first-hand knowledge.
An application to dismiss for delay must be advanced with the knowledge that if the court does not dismiss the claim, it is likely to make an order imposing a schedule for the future conduct of the litigation.
British Columbia has a similar discretionary rule2 for dismissal of claims for want of prosecution, but no mandatory rule. The factors that a court will consider parallel those considered in Alberta:
- the length of the delay and whether it was inordinate;
- whether the delay is excusable in the circumstances;
- whether the delay has caused serious prejudice to the defendant such that a fair trial is not possible; and
- whether, on balance, justice requires the dismissal of the action.
In Ontario, there are several rules under which a claim may be dismissed for want of prosecution, but ultimately a claim will not be dismissed unless:
- the default is intentional and contumelious; or
- the plaintiff or his or her lawyers are responsible for the inexcusable delay that gives rise to a substantial risk that a fair trial might not now be possible3.
An application for dismissal of a claim for delay can be a useful tool for a defendant, in the right case. The threat of an application to strike for delay has, in our experience, been an effective negotiation tool because it injects the risk of complete dismissal of the claim into the matrix of overall litigation risk.
1. Alta. Reg 124/2010
2. British Columbia Supreme Court Civil Rules, Rule 22-7(7).
3. Armstrong v. McCall, (2006) 213 O.A.C. 229 (C.A.).
