British Columbia Court of Appeal comments on the test for want for prosecution applications

March 30, 2022 | Fareeha Qaiser, Caitlin VanDuzer

Introduction

The Court of Appeal for British Columbia (the “Court of Appeal”), in Drennan v Smith, 2022 BCCA 86,  provided significant commentary on want for prosecution applications and warned of possible changes to come. Mr. Tyler Drennan (the “Appellant”) appealed the British Columbia Supreme Court’s decision wherein Justice Murray granted Mr. Darcy Smith (the “Respondent”) an order dismissing the claim against him for want of prosecution.

The Appellant appealed the decision on the grounds that the judge erred in her factual findings pertaining to prejudice and incorrectly held that the balance of justice required her to grant the application, which dismissed the underlying action.

Brief Facts

The underlying dispute was one between neighbours. The Appellant alleged that the Respondent trespassed onto his property and cut down 23 trees without permission, which the Appellant alleged lessened his property value and caused him emotional distress. The Respondent admitted to hiring a tree faller, Mr. Leo Pike, to remove the trees but claimed that he did so in accordance with an oral agreement wherein the Appellant agreed to the tree removal in exchange for receiving blast rock from the Respondent.

Procedural History

The Appellant filed a Notice of Civil Claim (“NOCC”) in September 2016 for trespass and unjust enrichment. He had difficulty serving the NOCC onto the Respondent and was only able to do so in June 2017 after obtaining an order for alternative service. The Respondent filed a Response to Civil Claim in August 2017.

In July 2018, the Appellant served his list of documents, after which the Respondent served his in November 2018.

In April 2019, the Respondent was discovered by the Appellant.

In October 2019, Mr. Pike died.

In April 2021, the Appellant filed a notice of intention to proceed. The parties also agreed to a January 2023 trial date at this time.

The Respondent brought a want for prosecution application which was heard in July 2021.

Trial Decision

On an application to dismiss for want of prosecution, four questions must be answered as follows:

  1. Has there been an inordinate delay;
  2. Is the inordinate delay inexcusable;
  3. Has the delay caused or is likely to cause serious prejudice to the defendant; and
  4. On balance does justice require a dismissal of the action?

The trial judge found that the delay in the action was inordinate and inexcusable since it had been over four years since the Response to Civil Claim was filed and the Appellant took no steps in the action between April 2019 and April 2021. The trial judge also found that the Respondent would experience irreparable prejudice in mounting and presenting a defence if the trial went ahead based on her following findings of fact:

  1. Mr. Pike’s passing precluded the Respondent from obtaining key evidence in support of his case, which, as a result of the Appellant’s delay, deprived him of the best evidence available; and
  2. The passage of time caused the Respondent’s memory to fade as well as those of other witnesses, which would make a fair trial an impossibility.

The trial judge ultimately found that the balance of justice required the action to be stayed and the Respondent’s application to dismiss the action for want of prosecution was granted.

Appellant’s Position

The Appellant appealed the trial decision based on the following:

  1. the delay was not inordinate;
  2. the reasons for the delay at issue were not given sufficient weight;
  3. Mr. Pike’s death did not preclude the Respondent from raising a fulsome defence;
  4. the delay in the action did not cause any evidence to be lost; and
  5. a fair trail for the Respondent would not be an impossibility based on the aforementioned.

Analysis

While the Court of Appeal declined to comment on the trial judge’s findings of an inordinate or inexcusable delay, the Court of Appeal agreed that the trial judge committed a palpable and overriding error with respect to her finding of serious prejudice and overturned the trial judge’s decision. The Court of Appeal held that there was not enough evidence to support a finding of serious prejudice and “[wi]thout evidence of serious prejudice, the balancing of interests did not support dismissal for want of prosecution in a case where, prior to April 2021, delay had not been raised as an issue or asserted as a basis for remedial relief.”

The Court of Appeal also found that Mr. Pike’s death did not prejudice the Respondent’s position since the evidence that he would have provides at trial could have been provided by other witnesses. Further, the inference of witnesses’ memories fading was not supported by the evidence especially since the Respondent was able to divulge a great deal of information in an affidavit supporting his want of prosecution application. This led the Court of Appeal to conclude that the Respondent would be able to recall sufficient detail in order to respond to the underlying claim.

Since a finding of serious prejudice is pivotal to assessing what the balance of justice requires to in a decision to dismiss, the Court of Appeal overturned the trial judge’s decision since the trial judge’s finding of facts were not supported by the record. The Court of Appeal held that a finding of serious prejudice cannot simply be inferred as it must be supported by the evidence.

Opening the Door for Reconsideration of the Legal Standard for Dismissal

Despite finding that the trial judge erred in her assessment of serious prejudice, the Court of Appeal stated that the trial judge’s concerns about the length of time between the NOCC being filed and a trial date being set were warranted.  During the appeal, the Appellant submitted that a delay of five years was not unusual in civil proceedings. The Court of Appeal stated the following in response at paragraph 61:

If that is an accurate depiction of civil litigation practice in British Columbia, it may be time to revisit the legal test for dismissal. In particular, this Court may wish to reconsider the requirement for a likelihood of serious prejudice. The object of the Supreme Court Civil Rules is “to secure the just, speedy and inexpensive determination of every proceeding on its merits” (R. 1‑3). Consistent with that object, reformulating the test for dismissal may incentivize parties to conduct themselves with increased dispatch in advancing and defending their claims. We cannot do that here. We were not asked to reconsider the legal standard and doing so would require a five‑member division.

[Emphasis added]

Since the Court of Appeal was not asked to consider the legal standard for dismissal in this case, they declined to further address this issue, but stated that this would be a worthy consideration for a later day.

Practical Considerations

The test for want for prosecution remains highly fact dependent and the Court is still required to look at the totality of evidence prior to granting an order dismissing a claim for want of prosecution. However, this decision has opened the door for future litigation to consider the legal standard of the test in order to discourage delays within the legal system.

Disclaimer

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