Background:
Nickolaus Harold Macdonald Weiser, the plaintiff, filed a claim against Lawrence Courtenay Allan Marsh, Leslee Fern Marsh, and Integrita Consulting & Developments Inc. He alleged that the Marshes held shares in Integrita in a constructive trust for him and sought a transfer of half the shares. The defendants denied the trust and counterclaimed for unpaid promissory notes.
Legal Issues:
- The defendants sought to dismiss the case for want of prosecution due to Weiser’s failure to advance the litigation.
- The court considered whether there was inordinate and inexcusable delay under the test from Giacomini Consulting Canada Inc. v. The Owners, Strata Plan EPS 3173, 2023 BCCA 473.
- The court also examined the interests of justice, including prejudice suffered by the defendants due to the delay.
Court’s Decision:
- The court found that Weiser’s delay of nearly four years was inordinate and inexcusable.
- The delay prejudiced the defendants, causing stress, financial burdens, and potential evidence deterioration.
- The court dismissed Weiser’s claim under Rule 22-7(6) and (7) of the Supreme Court Civil Rules.
Costs Awarded:
- The court allowed the defendants’ counterclaim to proceed.
- The defendants were awarded costs of the application and the action, with potential further costs to be determined.
- A previous cost order of $750 had been paid, but additional costs, including those of a $2,500 hearing, were left for future determination.
