When a Plaintiff in an ICBC claim commences legal action claiming damages for injuries and economic loss arising from a motor vehicle accident, the ICBC claim can sometimes be dismissed in its’ entirety for what is known as want of prosecution, meaning that no material or significant legal step has been taken in the ICBC claim for several years, and that the ICBC claim has not proceeded in a timely fashion. Want of prosecution applies to other civil cases as well not involving ICBC claims.

 

In Louie v. Webber, the Plaintiff was injured in a motor vehicle collision in 1998. Legal proceedings were commenced in March, 1999, and ICBC’S lawyer filed a Statement of Defence (as it was then called) in October, 1999. Liability was not in dispute, however quantum (amount) of damages was. The Plaintiff went through four lawyers, before finally deciding to represent herself. ICBC’S lawyer had set the matter for trial five times, however each time the trial did not proceed, due to the Plaintiff‘s lack of readiness for trial. The Plaintiff also failed to attend two Examinations for Discovery, and when she did attend on one occasion, she failed to provide responsive answers to questions posed to her. In 2009, ICBC’S lawyer sought an order dismissing the matter for want of prosecution. The application was dismissed, however there was an order that the Plaintiff comply with the litigation process. At a Trial Management Conference in early 2013, the matter was stayed until the Plaintiff could obtain legal representation. Although the Court did not dismiss the Plaintiff‘s claim in the most recent court application, it did order strict conditions that the Plaintiff must meet.

 

[14] The court’s authority to dismiss a case for want of prosecution lies in Rule 22‑7(7):

(7) If, on application by a party, it appears to the court that there is want of prosecution in a proceeding, the court may order that the proceeding be dismissed.

[15] The new Rule has been found to be essentially unchanged from the former Rule 2(7): 0690860 Manitoba Ltd. v. Country West Construction Ltd. 2009 BCCA 535 (CanLII), 2009 BCCA 535. The jurisprudence concerning the old Rule is therefore applicable to applications brought under the new Rule.

[16] The requirements for dismissing a claim for want of prosecution were laid down in the leading case of Irving v. Irving, (1982), 38 B.C.L.R. 318 (C.A.):

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.

[17] If those tests are met, the court must go on to consider whether or not the balance of justice demands that the action should be dismissed.

 

[19] Dismissal for want of prosecution is a draconian remedy. The court should exercise caution and restraint when it considers the motion. This means that, among other things, the court should not dismiss the proceeding in order to punish the dilatory plaintiff. The discretion to dismiss for want of prosecution should only be exercised when the delay has affected the balance of justice so as to impair the opportunity for the parties to have a fair trial.

 

[26] The plaintiff does have a claim and is probably entitled to some damages. She feels strongly about her claim. Despite the prejudice that the defence has experienced, in my opinion justice requires that the plaintiff have one last opportunity to put her case before the court.

In Ellis v. Wiebe, the Court commented on the general principles of law with respect to want of prosecution. The Court ruled that, although there was inordinate and inexcusable delay, there was no prejudice to the Defendants, so the claim would not be dismissed for want of prosecution. However, the Court would dismiss the Plaintiff’s claim on its’ merits.

 

[8]           The parties do not dispute the test to be applied by the court in determining whether an action should be dismissed for want of prosecution. The test is concisely summarized in Shields v. Nishin Kanko Investments Ltd., 2008 BCSC 36 at para. 25, wherein Mr. Justice Parrett cites the comments of Scarth J. at para. 3 of March v. Tam, 2002 BCSC 1125:

 

… I conclude that the principles of law which govern the exercise of the Court’s discretion in the circumstances of this case may in summary form be stated as follows: The defendants must establish that there has been inordinate delay and that this delay is inexcusable. If those two factors are established a rebuttable presumption of prejudice arises and the onus shifts to the plaintiff to prove on a balance of probabilities that the defendants have not suffered prejudice or that on balance justice demands that the action not be dismissed.

[Emphasis in original.]

[9]           The authorities also consistently hold that the court must look to the objects of the Supreme Court Rules as these relate to the particular circumstances of the case to determine whether an action should be dismissed for want of prosecution. Rule 1-3(1) provides that the object of the Supreme Court Rules is to secure the just, speedy and inexpensive determination of every proceeding on the merits. The former version of Supreme Court Rule 1-3 was considered by this court in Lindholm v. Pollen (1986), 3 B.C.L.R. (2d) 23 (S.C.) at para. 16:

 

The animating principle lying back of any system of administration of justice is that litigation be proceeded with diligence and expedition. This principle is expressed in R. 1(5) that the object of the Rules of Court is to secure the just, speedy and inexpensive determination of every proceeding on its merits… A just determination can only be attained if an action is tried while the facts are still within the recollection of the witnesses. …

 

[10]        When the Supreme Court Rules were amended in July 2010, a new subsection was added to Rule 1-3 to further refine the meaning of “just, speedy and inexpensive determination”. Rule 1-3 (2) provides as follows:

 

(2)   Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

 

(a)      the amount involved in the proceeding,

(b)      the importance of the issues in dispute, and

(c)      the complexity of the proceeding.

 

In Hullenaar v. Wells et al., the Plaintiff alleges that he was boxed in by two cars, and that one of the drivers exited the car and struck him in the eye with a stick. The Plaintiff brought an ICBC claim for damages for pain and suffering, and named the drivers of the cars and ICBC as Defendants. The case dragged on for many, many years, with the Plaintiff not taking any material or substantial legal step in the prosecution of the ICBC claim. The Court dismissed the ICBC claim of the Plaintiff.

 

[8]      In order to assess applications of this type I must focus on four main questions:

 

1.       Has there been inordinate delay?

2.       Is the delay inexcusable?

3.       Have the defendants been prejudiced by or are they likely to be prejudiced by the delay?

4.       Do the overall interests of justice demand that the action be dismissed?

 

(see Tundra Helicopters Ltd. v. Allison Gas Turbine et al, 2002 BCCA 145 and Azeri v. Esmati-Seifabad, 2009 BCCA 133).

 

[16]         Once inordinate and inexcusable delay is found, a rebuttable presumption of prejudice to the defendants arises; see Tundra Helicopters. None of the evidence presented to me rebutted that presumption.

 

[17]         There is some evidence that the plaintiff and the defendant Flynn were examined for discovery in 2002 and 2003 respectively; minimal if any examination of the defendant Wells has occurred. None of the transcripts of the discovery were produced.

 

[18]         This is a case which will depend largely on the evidence of the parties who were present at the time of the event. The evidence at trial will be the13 – 15 year old recollection evidence of witnesses who had spent a significant part of the evening drinking alcohol at private parties and commercial bars.

 

[19]         In my view the delay of 13 years, which will be almost 15 years by the time of trial, has prejudiced and will continue to prejudice the defendants in their ability to present a full and proper defence.

 

[20]         This is an unfortunate case. The plaintiff appears to have suffered significant injury. It is hard to imagine why the matter was not moved forward with anything approaching reasonable speed, however the plaintiff alone is responsible for the delay. Based upon the evidence presented, the interests of justice do not mitigate in favour of allowing the plaintiff to continue his action, rather they favour the dismissal sought by the defendant/third party.

 

[21]         The action is dismissed for want of prosecution.