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.
