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.
