Canada: Closing Litigation Files For Want Of Prosecution

It is understandably very important to insurers to ensure that claims progress and files are closed.  Most insurers have files in which the plaintiffs and their counsel have simply stopped moving the file forward.  In British Columbia, it has always been difficult to succeed in an application for want of prosecution; unfortunately, as a result of two recent decisions, it has become even more difficult.

An Application for Want of Prosecution

The British Columbia Supreme Court Rules allow for an action to be dismissed for want of prosecution.  Rule 22-7(7) provides:

If, on application by a party, it appears to the court that there is want of prosecution in a proceeding, the court may order that the proceeding be dismissed.

The cases provide that the following factors should be considered in deciding whether an action will be dismissed for want of prosecution:

  1. the length of the delay and whether it was inordinate;
  2. whether there is a reasonable excuse offered for the delay (such as whether the delay was intentional and tactical or whether it was the product of dilatoriness, negligence, impecuniosity, illness or some other relevant cause); 
  3. whether the delay has caused serious prejudice to the defendant such that it creates a substantial risk that a fair trial is not possible; and
  4. whether, on balance, justice requires dismissal of the action.

For many years, a commonly held view was that if the plaintiff had not moved a claim forward for a few years, there was a good chance of succeeding in such an application.  A delay as long as 5-7 years was often considered determinative.

Recent Cases

However, two recent Court of Appeal cases have modified this view, and made it much more difficult to have an action dismissed for want of prosecution in British Columbia.

In PMC Builders and Developers Ltd. v. Country West Construction Ltd. (2009 BCCA 535) ("Country West"), the Court considered an application for want of prosecution on the following facts:

  • The action was for a breach of contract and negligence relating to a subcontract in a construction project.  It was commenced on July 2, 2004.  The last step taken by the plaintiff before the application was on September 28, 2005, when the plaintiff successfully had the action transferred to a different registry.
  • Approximately 3.5 years later, on January 24, 2008, the plaintiff delivered a notice of intention to proceed and a defendant immediately responded with an application to have the action dismissed for want of prosecution and to have the bond released. 
  • The plaintiff conceded that the delay was inordinate, and that it did not have an excuse for the delay.  However, it opposed the application on the basis that there was no actual prejudice to the defendant and that the balance of justice still favoured the plaintiff.

The defendant's assertions of prejudice, that various witnesses were unavailable, were not considered compelling by the Court of Appeal. 

One rejected assertion concerned the death of a key witness.  The witness had died a few years after the litigation was commenced.  The Court of Appeal reasoned that the death of the witness was not prejudicial since the witness had died only a few years after the dispute arose; accordingly, his evidence would not have been available even if the plaintiff had pursued his claim diligently. (See the note below for two other examples of how the courts in British Columbia have considered the death of a key witness).

It was also arguably significant in the Country West decision that the cause of action arose in 2003, and so the limitation period of 6 years had not yet expired by the time the application for want of prosecution was heard. 

In June 2012, the British Columbia Court of Appeal issued a decision in Murrin Construction Ltd. v. All-Span Engineering and Construction Ltd. (2012 BCCA 251) ("Murrin").  The Court was considering an application for want of prosecution in an action that was commenced in 2006, relating to events in 2000.  No step had been taken in 2.5 years.  The limitation period had long since expired.

The chambers judge found that the delay had been inordinate and inexcusable, causing serious prejudice.  However, the chambers judge also reasoned that the balance of convenience nonetheless favoured the plaintiff because the defendant had not diligently pursued its counterclaim (of approximately $7,000). 

The Court of Appeal affirmed the decision.  The court found that the fact that there had been no actual prejudice was relevant (and arguably determinative) in assessing the balance of justice.

In discussing the presumed prejudice, the majority stated:

The judge presumed prejudice on the basis of presumed erosion of memory of possible witnesses, as he was entitled to do. However, the appellant led no evidence of specific prejudice. I think the absence of such evidence in the circumstances as I have outlined them above is an indication that no serious prejudice has been suffered. Moreover, I think the judge may have overstated the difficulty of mounting a fair trial when he said, "The nature of this contract as well as the design standards to be applied, the actual defects that allegedly manifested as well as the issues of insurance are all now likely lost in the shrouds of time." It seems to me to be likely that there are documentary records of the applicable design standards, the alleged defects in the bridge, and the measures taken to repair them, which would encompass the central issues in the action.

As a result, the court found that the delay had not given rise to "a substantial risk that a fair trial of the issues in the litigation will not be possible".  In finding that the balance of justice favoured the plaintiff, the majority of the court determined that the failure of the defendant to pursue the counterclaim, and the fact that the plaintiff had taken positive steps to move the action forward after being notified of the application, were both relevant factors to consider.

In the minority concurring decision, Chiasson J.A. disagreed about the relevance of the counterclaim, but agreed that the lack of actual prejudice was a relevant factor in considering the balance of justice.  The plaintiff's response to notice of the application for want of prosecution was relevant.  He advocated for a "last chance" for the plaintiff to move the action forward after being given notice of the application.

Concluding Comments

As a result of these two cases, the fourth factor to be considered in deciding whether an action will be dismissed for want of prosecution, "whether, on balance, justice requires dismissal of the action", has become a more significant hurdle.  In balancing justice, the court is to consider the weight that should be afforded to the first three criteria, and the additional criteria. 

The recent cases indicate that the courts will consider the following to be of particular significance:

  • The length of the delay, and in particular whether the limitation period has expired.  
  • The excuse offered by the plaintiff.  A compelling excuse may tip the balance towards the plaintiff.
  • Whether actual prejudice has been suffered by the defendant has been very important in recent cases.  Without actual prejudice, it may be difficult to have an action dismissed.
  • The conduct of the plaintiff after receiving the application for want of prosecution.  If the plaintiff immediately takes steps to move the action forward, the court may grant the plaintiff a "last chance."  Thus, litigants need to carefully assess whether they are prepared to take the risk of "waking up the plaintiff" when they give notice of an application for want of prosecution. 

It is interesting to compare the law in British Columbia with that in Alberta.  Rule 4.33 of the Alberta Rules of Court (which comes into force on November 1, 2012) provides that if two or more years have passed since the last act to advance the action, the Court must (subject to limited exceptions) dismiss the action.  Such a rule appears more consistent with the upcoming amendments to the Limitation Act in British Columbia, which reduce the limitation periods and the threshold test for discoverability (as discussed in our May 23, 2012 blog entry).  The author is of the view that a similar revision in British Columbia should be welcomed by all litigants to clarify the law and thereby ensure that litigants spend less time (and money) addressing these types of issues.

It should be kept in mind that an application for want of prosecution is very fact dependent.  The comments in this blog are intended to provide some insight into the law, but should not be read as precluding a successful application in a specific case. 

Side Note:  Relevance of the Death of a Witness in Assessing Prejudice

Two other cases since Country West have considered whether the death of a witness caused actual prejudice: 

  1. In McBeth-Kearns v. Marples (2012 BCSC 714) the death of a key witness during the delay period resulted in a finding of serious prejudice, but the Court considered the prejudice ameliorated because the witness had been examined for discovery, and there were documents available.  As a result, Mr. Justice Joyce reasoned that the balance of justice favoured the plaintiff.
  2. In Gill v. Hepburn (2012 BCSC 439) the death of the defendant himself was found to be sufficiently prejudicial.  The Court noted that it was significant that the allegations against the defendant were personal in nature in coming to its conclusion. It seemed significant that this was not a case that was likely to be based on the documents available.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Krista Prockiw
Eileen Vanderburgh
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.