The claim has seen little progress since its initiation in 2018
The BC Supreme Court has dismissed a misrepresentation claim involving a residential property in Kelowna due to significant procedural delays caused by the plaintiff.
The court found that the claim centred on alleged misrepresentations regarding the property's condition, specifically moisture and water issues, has seen little progress since its initiation in January 2018. The court noted that the property was purchased in 2016 and the issues were discovered shortly thereafter. Despite efforts to address these concerns, the plaintiff's legal action did not advance toward resolution, prompting the defendants to seek dismissal for want of prosecution.
The court explained that under the Supreme Court Civil Rules, the court may dismiss a proceeding if there appears to be a lack of prosecution. This application is supported by a revised legal framework outlined in Giacomini Consulting Canada Inc. v. The Owners, Strata Plan EPS 3173, 2023 BCCA 473, which prioritizes the efficient progression of legal actions within the justice system. The Giacomini decision emphasized moving away from a culture of complacency toward delays and instead focusing on the interests of justice.
The court noted that before Giacomini, the long-standing test to dismiss a claim for want of prosecution considers whether there has been an inordinate and inexcusable delay and the serious prejudice caused to the defendant. The court emphasized that even if all of the conditions were established, it would not necessarily follow that the claim would be dismissed because the court retained a residual discretion to decide whether or not the interests of justice demanded a dismissal.
In assessing the case, the court followed the test as outlined in Giacomini. The court concluded that the plaintiff's delay in prosecuting the action was inordinate and inexcusable. Despite a consent order to reinvigorate the case's progression, the plaintiff failed to meet outlined milestones, such as preparing a list of documents and scheduling examinations for discovery.
The court's analysis included consideration of potential prejudice to the defendants, the implications of delay on their personal interests, and the overall impact on the justice system. Despite the serious nature of the plaintiff's allegations, including claims of fraudulent misrepresentation, the court concluded that the delays undermined the case's viability Ultimately, the court dismissed the claim, ensuring that legal disputes are resolved promptly.
