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4HD Construction Ltd. v. Dawson Wallace Construction Ltd., 2025 BCSC 2191
Update from Counsel for the Applicants
Key Takeaway
The BC Supreme Court has confirmed that construction lien claimants who obtain prejudgment security must actively prosecute their claims. Where they do not, defendants can (and should) seek dismissal for want of prosecution, even if the lien has already been replaced by cash or a lien bond.
In the case of 4HD Construction Ltd. v. Dawson Wallace Construction Ltd., 2025 BCSC 2191, our clients were successful in having a long-dormant lien action dismissed after nearly five years of inactivity, freeing up security that had been posted since 2020.
Background
The plaintiff subcontractor commenced an action seeking approximately $115,000 for alleged unpaid work on a Langley distribution centre. Although the lien was promptly discharged after our client posted full security into court, the plaintiff took almost no meaningful steps to advance the litigation thereafter.
Aside from exchanging document lists in 2021 and filing two notices of intention to proceed (without any follow-through), the plaintiff allowed the action to languish until we brought an application to dismiss for lack of prosecution under Rule 22-7(7).
The Court's Analysis
The Court applied the three-part test from Giacomini Consulting Canada Inc. v. Strata Plan EPS 3173, 2023 BCCA 473:
- Was the delay inordinate?
- Was it inexcusable?
- Do the interests of justice nevertheless favour allowing the action to proceed?
The Court answered the first two questions unequivocally yes, and concluded that the interests of justice strongly favoured dismissal.
Why the Application Succeeded
The Court emphasized several factors that will be of particular interest to owners and contractors defending lien claims:
- Security had been tied up for over five years, creating ongoing prejudice and triggering a heightened obligation on the lien claimant to move the case forward.
- The claim depended heavily on alleged oral discussions from 2019, increasing the risk of evidentiary prejudice caused by delay.
- The plaintiff filed two notices of intention to proceed but then did nothing, demonstrating awareness of the need to act – and a failure to do so.
- The plaintiff was found to be an experienced litigant, undermining any suggestion that the delay was accidental or excusable.
Importantly, the Court reiterated that even where a lien has been replaced by security, the obligation to prosecute with dispatch remains. Delay alone can justify dismissal, without requiring defendants to prove specific trial prejudice.
Practical Takeaways for Owners and Contractors
From a defence perspective, this decision reinforces several strategic points:
- Do not accept prolonged inactivity simply because lien security has been posted.
- Dormant lien actions are vulnerable to dismissal, particularly where funds have been tied up for years.
- Courts will scrutinize delay more closely where the plaintiff has benefitted from the extraordinary prejudgment remedy of a lien.
- A well-timed Rule 22-7(7) application can result in full dismissal of the claim and release of security, not merely procedural pressure.
Closing Comment
This decision is a strong reminder that construction litigation in British Columbia is not "set and forget." Where lien claimants fail to move their cases forward, defendants have a powerful procedural remedy available – and the courts are prepared to grant it.
If you are facing a dormant lien claim or have questions about dismissal for want of prosecution, our Infrastructure, Construction, and Procurement group can provide strategic guidance.
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.
