The court applied the new test for dismissing actions due to lack of prosecution
The BC Supreme Court has granted a defendant's application to dismiss a plaintiff's action regarding a 2013 slip and fall incident due to inordinate and inexcusable delay prosecution delays and continuous failure to comply with court orders.
The dispute in Ramirez Carabantes v Ivanhoe Cambridge Inc./Ivanhoe Cambridge I Inc., 2024 BCSC 520 arose from an alleged slip and fall by the plaintiff in Metropolis at Metrotown in Burnaby, BC. The court noted that the action was initiated in 2015, and the case progressed slowly, with the last significant actions—document production and the plaintiff's examination for discovery—occurring in 2018.
Despite the court's clear directive, the plaintiff failed to comply with an order for an updated document list. Further complications arose due to changes in the plaintiff's legal representation and mismanagement of document handling.
In 2019, the court gave the plaintiff one final opportunity to comply within 60 days. The plaintiff did not meet this deadline, leading to the 2023 dismissal application by the defendant. In an attempt to reactivate the case, the plaintiff’s counsel made late document submissions and modified claims, but the court deemed these actions inappropriate as they violated procedural rules.
The Court of Appeal's recent ruling in Giacomini Consulting Canada Inc. v. The Owners, Strata Plan EPS 3173 2023 BCCA 473 has updated the criteria for dismissing actions due to lack of prosecution. The revised test determines if the delay was excessive and without justification, then assesses whether justice still supports continuing the case. Applying the Giacomini test, the BC Supreme Court found that the delay extended over eight years with long periods of inactivity and non-compliance with court orders.
The court identified significant prejudice against the defendant, including the death of a critical witness and the loss of crucial documents, significantly hindering the defence's ability to challenge the claims effectively. The court found these factors, combined with the plaintiff's lack of a credible excuse for the delay, justified dismissal in the interest of justice.
The court emphasized the need for timely justice and adherence to procedural standards, emphasizing the consequences of delay tactics in legal processes. The court stressed that such delays damage public trust and counter the legal system's core aim to resolve disputes justly and promptly.
