Fitzpatrick v Dobos
Civil litigation is inherently time consuming. Experiencing a delay in the progress of a civil action, therefore, is not uncommon. Sometimes, however, an unnecessary delay in a plaintiff’s claim will significantly impact the ability to have a fair trial on the action. How do the courts deal with such a delay? A recent decision out of the Supreme Court of British Columbia sheds some light on delays in a plaintiff’s claim and the dismissal of same for want of prosecution.
In reviewing the decision in Fitzpatrick, I will address some of the relevant considerations undertaken by courts in the determination of whether a claim should be dismissed for want of prosecution.
The threshold issue in Fitzpatrick surrounded whether the plaintiff actually had standing. At issue was whether she is the natural or adopted daughter of the testator. In Fitzpatrick an application was brought by M.E.B. (the “Administrator”) in her capacity as Administrator of the Estate of E.M.M. (the “Common-law Spouse”) and Administrator of the Estate of K.C.D. (the “Deceased”) for an order, pursuant to Rule 6-2(5) of the Supreme Court Civil Rules that the action be dismissed for want of prosecution. The Honourable Mister Justice C. Ross of the Supreme Court of British Columbia dismissed the application, but not before providing a helpful overview of the relevant legal principles.
Dismissal for Want of Prosecution
In most Canadian jurisdictions, a plaintiff’s claim can be dismissed for delay. In 1987, the Alberta Court of Appeal in Lethbridge Motors Co. Ltd. v. American Motors (Canada) Ltd. adopted the reasoning of Lord Salmon of the House of Lords in Fitzpatrick v. Batger & Co. on the issue of dormant claims. The court explained the “sleeping dog” rule, a metaphor used to support the proposition that the plaintiff is responsible for the prosecution of an action.
In British Columbia, Rule 22-7 of the Supreme Court Civil Rules provides that:
Dismissal for want of prosecution
(7) 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 Supreme Court Civil Rules at Rule 6-2, which deal with a change of parties, also provide that:
Prosecution of proceeding if plaintiff or petitioner dies
(5) If a plaintiff or petitioner has died and the proceeding may be continued, a defendant or respondent may apply to the court for an order that the person entitled to proceed do proceed within the time that the court orders and that, in default, the proceeding be dismissed for want of prosecution.
In Fitzgerald, the application for dismissal for want of prosecution surrounded the operation of the above-mentioned Rule 6-2(5).
The Deceased died on February 25, 2019. In his lifetime, he executed several wills including the latest, dated July 22, 2014 (the “2014 Will”). The 2014 Will appointed his common-law spouse as executor and left 50 percent of the residue to her and the other 50 percent to his two nephews living in Hungary.
The plaintiff in the current action, C.A.T.F. (the “Plaintiff”), asserts that she is the daughter of the Deceased and seeks a variation of his will pursuant to s. 60 of the Wills, Estates and Succession Act.
The Defendants are the half-sister of the plaintiff, and the Common-law Spouse in her capacity as the Executrix of the Estate of the Deceased and in her personal capacity. Also listed as Defendants are the Deceased’s two Hungarian nephews (the “International Defendants”).
On July 19, 2019, the Common-law Spouse obtained probate of the Deceased’s estate. In September of 2019, counsel for the Plaintiff gave notice of their intention to file an application to set aside the grant of probate. A series of emails entered into evidence indicates the Common-law Spouse’s counsel advised that she believes that the Plaintiff is not the biological daughter of the Deceased and requested a DNA test to be undertaken, at the expense of the estate.
The Plaintiff’s counsel sought dates for the hearing of the application, however, the Common-law Spouse’s counsel declined to respond to the scheduling request until receiving a response to the offer of DNA testing. On November 22, 2019, the Plaintiff filed an application to revoke the grant of probate, returnable of December 2, 2019.
Counsel then sought an adjournment in order to prepare and file responding materials. A response was filed on December 2, 2019, alleging in part that the Plaintiff was not the natural, biological or adopted daughter of the Deceased. The application was adjourned and on January 3, 2020 the plaintiff filed the notice of civil claim.
On April 23, 2020, the Defendant served the Plaintiff with a demand for particulars and was advised by way of letter dated May 4, 2020, that the response would be delayed due to the COVID-19 Pandemic. Commencing May 19, 2020, there was an exchange of emails between counsel concerning blood testing to which the Plaintiff’s counsel replied that a blood test is intrusive and inconclusive and raised the possibility of a DNA test.
On December 22, 2020, an order was granted extending the notice of civil claim until January 2 and 3, 2023. However, on February 21, 2022, the Common-law Spouse died. No notice of her death was provided to the Plaintiff, who eventually learned of her passing on social media in May 2022.
The Plaintiff’s counsel then wrote to the Common-law Spouse’s counsel requesting the name of the representative and dates for discovery. In response, the Common-law Spouse’s counsel advised that her daughters will be her legal representatives and the legal representatives of the Deceased’s estate.
On September 26, 2022, the Common-law Spouse’s daughter living in Canada was appointed Administrator of her Estate and the Deceased’s Estate. Sometime thereafter, counsel for the Administrator brought the present application to dismiss the claim for want of prosecution. Counsel for the Plaintiff wrote to the Administrator’s counsel expressing their surprise and disappointment and explaining that they’ve made several requests to inquire into the identity of the Common-law Spouse’s personal representative, to canvass dates for Examination for Discovery, but also, to indicate the Plaintiff’s willingness to submit to a DNA test.
The court in Fitzgerald looked at the 2022 decision in Drennan v. Smith where Madam Justice DeWitt-Van Ooster writing for the British Columbia Court of Appeal summarized the principles to be considered on an application for dismissal for want of prosecution:
 …Relevant factors for consideration are summarized in Wiegert v. Rogers, 2019 BCCA 334:
 On an application to dismiss for want of prosecution, it must be shown that there has been inordinate delay, that the inordinate delay is inexcusable, and that the delay has caused, or is likely to cause, serious prejudice to the defendant. In addition, the final and decisive question, which encompasses the other three, is whether, on balance, justice requires a dismissal of the action: Azeri v. Esmati-Seifabad, 2009 BCCA 133 at para. 9; 0690860 Manitoba Ltd. v. Country West Construction Ltd., 2009 BCCA 535 at paras. 27-28.
Pursuant to Drennan, an ‘inordinate delay’ is defined as “delay that is immoderate, uncontrolled, excessive and out of proportion to the matters in question.” What is truly relevant to whether a delay is inordinate will be the plaintiff’s diligence and dispatch in advancing the action. To this end, the court in Fitzgerald held that “[p]laintiffs have a particular onus to move expeditiously when a case involves serious allegations that go to a defendant’s character and credit.”
The court is also entitled to consider the conduct of the defence contributing to any delay when considering whether there has been an inordinate or inexcusable delay. The burden, however, is on the applicant to establish the existence of such a delay. Once established, a rebuttable presumption of prejudice arises. The concern with prejudice being that a defendant will suffer in mounting and presenting a defence if the matter goes to trial.
The final and overriding question is whether the interests of justice require dismissal of the action. In Drennan, it was held that on balance, this is a fact-dependent determination. Relevant matters can include the length of and reasons for the delay, the stage of the litigation, the context in which the delay occurred and the role of counsel in causing the delay (although negligence on the part of a plaintiff’s lawyer may not always amount to an excuse).
The court in Fitzgerald pursuant to Extra Gift Exchange Inc. held that four questions are to be addressed in an application to dismiss for want of prosecution:
- Has there been inordinate delay on the part of the plaintiff in pursuing its claim?
- Has the delay been inexcusable?
- Has the delay caused serious prejudice, or is it likely to cause serious prejudice to the defendants?
- Does the balance of justice require an order dismissing the plaintiff’s claim?
In the case at bar, the applicant submitted that the Defendants have repeatedly indicated their intention to pursue the threshold issue of whether the Plaintiff is the natural or adopted daughter of the testator but also that the Plaintiff has failed to take any steps to provide evidence to establish her right to make a claim under the 2014 Will.
The Plaintiff submitted that the delay has not been inordinate owing to the circumstances which include the timing of the commencement of the action in relation to the COVID-19 Pandemic, the renewal and extension of the notice of civil claim (to January 3, 2022), difficulties with personal service to the International Defendants pursuant to the Hague Convention, the raised issue and requested examinations for discovery by the Plaintiff, the fact that a representative for the Common-law Spouse was only appointed on September 26, 2022, and that the International Defendants have yet to file a response to the Plaintiff’s notice of civil claim.
The court held that there was in fact, a delay by the Plaintiff in the prosecution of this action. However, the court also recognized that the lengthy period to effect service on the International Defendants through the Hague Convention was not within the control of the Plaintiff. More importantly, the court recognized that the Defendant has contributed to some of the delay by failing to provide dates for examination for discovery and failing to appoint an administrator of the Common-law Spouse’s estate in an expeditious fashion.
While Justice Ross held the view that the death of the Common-law Spouse has caused actual prejudice to the defence with respect to the claims of conspiracy, undue influence, and conversion of assets for which she would be a witness with actual knowledge of the events His Honour did not agree that there was a causal link between the delay in the present case and the prejudice. His Honour was not persuaded that if the prosecution had proceeded in the normal fashion, the trial of the action would have been completed before the passing of the Common-law Spouse.
In Fitzgerald, Justice Ross held that the fundamental question is whether or not on a balance justice demands that the action be dismissed. His Honour was not persuaded that in the case before him, there was a substantial risk that a fair trial on the issues would not be possible.
His Honour concluded that the delay was not inordinate, nor was it inexcusable. Furthermore, His Honour held that while there was prejudice to the defence of the action as a result of the death of the Common-law Spouse, he was not satisfied that the delay has caused this prejudice as it is likely the matter would not have concluded before her death. Justice Ross concluded that the interests of justice do not demand a dismissal to the action for want of prosecution.
The application was dismissed with costs awarded to the plaintiff.
Application in Ontario
The issue of dismissing a plaintiff’s claim for want of prosecution has also been addressed in several Ontario cases including the decision in Armstrong v McCall where Borins J.A., speaking for the Court of Appeal for Ontario, laid down the test to apply on a motion to dismiss an action for delay. There, His Honour expressed that the applicable legal principles were correctly stated at paragraph 4 of the Divisional Court in an appeal from the master in Woodheath Developments Ltd. v. Goldman:
The principle to be applied on a motion to dismiss for delay is that the action should not be dismissed unless:
(1) the default is intentional and contumelious; or
(2) the plaintiff or his or her lawyers are responsible for the inexcusable delay that gives rise to a substantial risk that a fair trial might not now be possible.
It is presumed that memories fade over time, and an inordinate delay after the cause of action arose or after the passage of [a] limitation period gives rise to a presumption of prejudice. Where there is a presumption of prejudice, the defendant need not lead actual evidence of prejudice and the action will be dismissed for delay unless the plaintiff rebuts the presumption. The presumption of prejudice may be rebutted by evidence that all documentary evidence has been preserved and the issues in the lawsuit do not depend on the recollection of witnesses or that all necessary witnesses are available with detailed recollection of the events. If the presumption is rebutted then the action may still be dismissed if the defendant leads convincing evidence of actual prejudice.
In Ontario, this can be found in the Rules of Civil Procedure at Rule 24.01 which deals with the dismissal of action for delay and provides that:
24.01 (1) A defendant who is not in default under these rules or an order of the court may move to have an action dismissed for delay where the plaintiff has failed,
(a) to serve the statement of claim on all the defendants within the prescribed time;
(b) to have noted in default any defendant who has failed to deliver a statement of defence, within thirty days after the default;
(c) to set the action down for trial within six months after the close of pleadings; or
(d) Revoked: R.R.O. 1990. Reg. 194, r. 24.01 (2).
(e) to move for leave to restore to a trial list an action that has been struck off the trial list, within thirty days after the action was struck off. R.R.O. 1990, Reg. 194, r. 24.01; R.R.O. 1990, Reg. 194, r. 24.01 (2); O. Reg. 770/92, s. 7; O. Reg. 533/95, s. 4 (1).
(2) The court shall, subject to subrule 24.02 (2), dismiss an action for delay if either of the circumstances described in paragraphs 1 and 2 of subrule 48.14 (1) applies to the action, unless the plaintiff demonstrates that dismissal of the action would be unjust. O. Reg. 259/14, s. 6.
For more information on the application of Rule 24.01, In March of 2020, Daniel Paperny wrote on the Ontario Superior Court of Justice decision in Levant v. Gilbert Studios Limited, https://canlii.ca/t/j5t8z, found here which provides an important reminder for litigants and their counsel to avoid unnecessary delays in proceedings, especially in cases where valuable evidence and/or witnesses may be lost due to the passage of time. As Daniel shared, in such cases the Court can exercise its discretion to order the proceeding dismissed entirely on account of delay.
 2023 BCSC 182 [Fitzpatrick].
 Want for prosecution describes a failure to pursue the case after it has been instigated in a proceeding leading to an inordinate and inexcusable delay which is likely to prejudice the other side and prevent a fair trial from taking place.
 B.C. Reg. 168/2009.
 1987 ABCA 150 [Lethbridge Motors].
  1 WLR 706 at p. 710,  2 All ER 657 (CA) [Fitzpatrick v. Batger].
 See Fitzpatrick v. Batger, supra where it was held that “… [The defendants] no doubt, however, were relying on the maxim that it is wise to let sleeping dogs lie. They had good reason to suppose that a dog which had remained unconscious for such long periods as this one, if left alone, might well die a natural death at no expense to themselves; whereas if they were to take out a summons to dismiss the action, they would merely be waking the dog up for the purpose of killing it at great expense which they would have no chance of recovering. I am not surprised that they did not apply earlier, and I do not think that the plaintiff’s advisers should be allowed to derive any advantage from that fact.”
 Fitzpatrick, supra note 1 at para. 1.
 S.B.C. 2009, c. 13.
 Fitzpatrick, supra note 1 at para. 7.
 Ibid., paras. 8-12.
 Ibid., paras. 14-17.
 Ibid., paras. 20-23.
 Ibid., para. 25.
 Ibid., paras. 26-27.
 2022 BCCA 86 [Drennan].
See Azeri at para. 8; Sahyoun v. Ho, 2015 BCSC 392 at para. 17. As Justice Saunders explained in Sun Wave Forest Products Ltd. v. Xu, 2018 BCCA 63 at para. 25, the concept is relative: some cases are naturally susceptible of fast carriage or call for more expeditious prosecution than others. Although there is no universal rule as to when time starts to run, the date of commencement of the action is typically identified as the point from which delay is measured. The delay should be analysed holistically, not in a piece-meal fashion, and the extent to which it may be excusable is highly fact-dependent: Ed Bulley Ventures Ltd. v. The Pantry Hospitality Corporation, 2014 BCCA 52 at para. 38; 0690860 at para. 29.
 Fitzgerald, supra note 1 at para. 32 which cites Extra Gift Exchange Inc. v. Accurate Effective Bailiffs Ltd., 2015 BCSC 915 [Extra Gift Exchange Inc.].
 Fitzgerald, supra note 1 at para. 33 citing Tundra Helicopters Ltd. v. Allison Gas Turbine, 2002 BCCA 145 at para. 21 [Tundra].
 See Busse v. Chertkow, 1999 BCCA 313 at para. 18.
 See 0690860 Manitoba Ltd. v. Country West Construction Ltd., 2009 BCCA 535 at para. 27.
 See International Capital Corporation v. Robinson Twigg & Ketilson, 2010 SKCA 48 at para. 45; 0690860 at para. 29.
 See Extra Gift Exchange Inc., supra note 16.
 Fitzgerald, supra note 1 at para. 39.
 Ibid., para. 41.
 Ibid., paras. 47-48.
 See Ferrante v. Dingwall Estate, 2008 CanLII 41575 (ON SC); Gefen v. Gaertner, 2019 ONSC 6015; and Hutter v. Hutter, 2019 ONSC 2173.
 2006 CanLII 17248 (ON CA),  O.J. No. 2055 [Armstrong v McCall].
 (2003), 2003 CanLII 46735 (ON SCDC), 66 O.R. (3d) 731 and 732.
 2020 ONSC 1528 [Levant].
 See Daniel Paperny, “Dismissing for Delay – Rule 24.01 and Dismissal of Proceedings on the Basis of Inordinate Delay” (March 24, 2020), WEL Partners Blog, accessed online: https://welpartners.com/blog/2020/03/dismissing-for-delay-rule-24-01-and-dismissal-of-proceedings-on-the-basis-of-inordinate-delay/