Dismissal for Want of Prosecution – Should I Apply Before the Limitation Period Expires?

John W. Bilawich, Holmes Bilawich & Stewart

The object of the Supreme Court Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.  Our civil justice system relies on the parties to set the pace at which a proceeding is prosecuted, subject to the availability of scarce judicial resources.  The plaintiff is responsible for moving its case to a timely conclusion.  However, in some cases the plaintiff may lack either the will or the resources to do so.

When a proceeding has languished, a question which arises is whether and when a defendant should apply to dismiss the action for want of prosecution.  Some believe applying before the relevant limitation period expires is futile.  Even if successful, dismissal for want of prosecution does not dispose of the claim on its merits, meaning that the plaintiff could simply start a new action.  If so, applying has dubious value, however, recent decisions suggest that in some cases it may be possible to obtain an effective remedy before the limitation period expires.

The Rule and Test

Rule 22-7(7) of the Supreme Court Civil Rules governs dismissal for want of prosecution.  The test is found in Irving v. Irving, [1982] B.C.J. No. 970 (BCCA):

  1. There has been inordinate delay;
  2. The inordinate delay is inexcusable; and
  3. The delay has caused, or is likely to cause, serious prejudice to the applicant.
  4. If these three elements are met, the court considers whether or not the balance of justice demands that the action should be dismissed.

Effect of Non-Expiry of Limitation Period

In Lui v. West Granville Manor Ltd. (1985), 61 B.C.L.R. 315 (CA) Mr. Justice Lambert found that as a general rule dismissal for want of prosecution should only happen after the limitation period has expired:

“… It also seems to be a general rule that dismissal for want of prosecution should only be done if the limitation period has expired. Otherwise the dismissal would be likely to be pointless, because the plaintiff could always start a new action.  And it seems to be the accepted view that the court has no power to prevent a plaintiff from suing, so long as the action is begun within the limitation period. …”

This was qualified in Rhyolite v. CanQuest, 1999 BCCA 36 (paras 10, 11, 29), where two judges commented that the non-expiry of a limitation period is a relevant consideration but not determinative.  In 0690860 Manitoba v. Country West Construction, 2009 BCCA 535 @ para 59 the court comments there is more to be said about the effect of expiry or non-expiry of a limitation period on dismissal for want of prosecution, but non-expiry should be taken into consideration when determining the balance of justice.

Two cases where actions were dismissed for want of prosecution before the limitation period help to illustrate how such a dismissal can provide the plaintiff an effective remedy.  See Sea Gull Leasing Ltd. v. Wildcat Enterprises 2012 BCSC 417 and First National Properties Ltd. v. Northland Road Services Ltd. 2008 BCSC 569.  Both involved claims for recovery of environmental remediation costs for contaminated sites pursuant to the Waste Management Act (BC), replaced by the Environmental Management Act (BC) (s. 47).  On April 1, 1997 the BC government created a new statutory cause of action that was absolute, retroactive and which imposed liability on a broad range of “responsible persons”. A party who voluntarily has incurred remediation costs can commence an action to recover reasonable remediation costs from responsible persons.

First National was a claim to recover remediation costs for salt contamination. The contamination was first complained of in 1992 and was known to the plaintiff by 1996.  In December 2002 the plaintiff started an action and delayed serving the Writ until December 2003.  The defendant filed an Appearance, after which the action was dormant.  The plaintiff eventually carried out remediation, which was completed in 2006.  In December 2007 the defendant applied to dismiss based on a missed limitation period or alternatively for want of prosecution.

Madam Justice D. Smith dismissed the application based on a missed limitation period on the basis that it had not started to run until the quantum of remediation costs was known in 2006.  She went on to find that the defendant had established all four elements of the Irving test and dismissed the action for want of prosecution.  She said plaintiffs who sought to rely on the advantages of this remedy had a parallel obligation to proceed in a diligent and expeditious manner in order to minimize the risk of prejudice to the defendants’ ability to effectively respond to their claim.  She found the plaintiff’s delay in giving notice of the action (Dec 2003) and completing remediation (2006) had significantly diminished the defendant’s ability to defend the action and pursue a limitation defence.  The plaintiff had the power to pursue its claim as early as 1997 but chose not to do so.  She found the plaintiff’s deliberate conduct had exacerbated the extent of the defendant’s prejudice.

Sea Gull Leasing was a claim to recover remediation costs for historical hydrocarbon contamination.  The action was started in March 2003.  An endorsed Writ was served in March 2004.  No further steps were taken in the action, and no substantive remediation was carried out to the property.  In February 2012 the defendants applied to dismiss for want of prosecution.  The plaintiff argued, among other things, that the passage of time could not have caused relevant prejudice because the limitation period had not expired.  Madam Justice Humphries rejected that and found the defendant had established all four elements of the Irving test, dismissing the action for want of prosecution.  She commented on the proposition that the plaintiff could simply start a new action.

[43]           The object of the Rules, the passage of time, the necessity to gather evidence after many years on the issues of whether the site is contaminated, when it became contaminated, whose fuel pumps were responsible, what role, if any, each of the defendants’ played, “creates a significant imbalance in favour of the plaintiff that is a direct result of the plaintiff’s failure to pursue its claim in a timely manner,” to use the words of the chambers judge in First NationalWhile the plaintiff may simply chose to file another claim, even though it has not incurred the majority of the remediation costs, the defendants will have the opportunity to mount arguments as to the effect of this delay on their ability to defend the action. [Underlining added]

A finding that the plaintiff’s conduct significantly prejudiced the defendant’s ability to defend the claim provide grounds for the defendant to argue that any new claim is an abuse of process, that the plaintiff is estopped by its conduct from pursuing it, and the action should be dismissed.

If a defendant has evidence that the plaintiff’s delay has caused specific prejudice to its ability to defend an action, dismissal for want of prosecution can be an effective remedy even if the relevant limitation period has not yet expired.