PHOTO: Justice Joyce DeWitt-Van Oosten PHOTO BY ARLEN REDEKOP /PROVINCE
B.C.’s top court says it may be time to consider time limits for civil litigation similar to those imposed on criminal trials because a simple lawsuit is taking five years or more.
After knocking the stuffing out of a B.C. Supreme Court ruling, the high bench conceded the judge had a good point about the length of time the lawsuit had taken. But the appeal court nevertheless tossed out her decision because the delay did not meet the standard set by the court’s existing rules.
That threshold may be too high because it requires the delay to cause or be likely to cause serious prejudice to the defendant, the B.C. Court of Appeal said.
“The case involves relatively simple claims,” wrote Justice Joyce DeWitt-Van Oosten for the three-justice panel.
Yet five years passed before the dismissal ruling, when a trial was still 18 months away.
“In submissions before this court, it was suggested that a delay of five years is not unusual in civil actions; it is not uncommon for parties to move at the pace seen here; and that to dismiss an action for want of prosecution after only five years would be extraordinary. If that is an accurate depiction of civil litigation practice in British Columbia, it may be time to revisit the legal test for dismissal.”
In 2016, the Supreme Court of Canada ruled the absence of prejudice can no longer be used to justify delays in criminal trials. It set deadlines — 18 months for provincial courts and 30 months in superior courts.
“Timely justice is one of the hallmarks of a free and democratic society,” the court said, and extended delays “undermine public confidence in the (legal) system.”
The nation’s top judges added Canadians “rightly expect a system that can deliver quality justice in a reasonably efficient and timely manner.”
“While those comments were made in the criminal law context, where timely justice takes on special significance, some of the underlying policy concerns, contextually informed, also resonate in the civil law realm,” said DeWitt-Van Oosten about the Vancouver Island dispute between neighbours over a copse of trees.
In 2016, Tyler Drennan alleged neighbour Darcy Smith retained a tree faller, Leo Pike, who trespassed on his property and cut down 23 trees, diminishing his home’s value by reducing its privacy and esthetic appeal.
After filing his claim, Drennan was unable to serve it. In December 2016, he retained a skip tracer to locate Smith and was finally able to serve him in June 2017.
Smith filed a defence two months later insisting Drennan gave him oral permission to cut down the trees in exchange for receiving free blast rock.
Drennan provided his list of documents in July 2018; Smith in November.
There were to be two witnesses — Pike and Phil Wilson, a contractor hired by Smith to transfer the rock but testifying for Drennan. Wilson said he was not aware of any agreement giving Smith permission to remove the trees. Smith was examined in April 2019.
Then, on Oct. 29, 2019, Pike died.
In March 2020, COVID‑19 disrupted courts at least until that September.
On April 1, 2021, Drennan obtained a trial date in January 2023, but Smith applied to have the suit dismissed, arguing Pike’s death and the time the litigation had already taken left him unable to get a fair trial because of faded memories.
His application was heard in June and Justice Catherine Murray dismissed the lawsuit a month later, finding the delay inexcusable: It was not deliberate or negligent, but Drennan had been “dilatory in proceeding with his case without having a good reason for doing so.”
From the judge’s perspective, the nature of the allegations attacked Smith’s character and there was “an onus on (Drennan) to proceed with expedition and diligence.”
Pike “likely would have provided key evidence corroborating Mr. Smith’s evidence and contradicting” the evidence of Wilson, Murray said.
As a result, the justice concluded the delay deprived Smith of “the best evidence available” and caused him “irreparable prejudice.”
The panel disagreed, saying she overestimated the relevance of Pike’s lost testimony.
“The bases on which this finding was made are not borne out by the record,” DeWitt-Van Oosten explained.
“The judge’s finding that Mr. Smith’s ‘memory has become unclear due to the passage of time’ appears to be largely predicated on his assertions to that effect during his examination for discovery. When those assertions are assessed in the context of the detail he was subsequently able to produce by way of affidavit, they lose their force.”
The appeal justices maintained Murray committed a “palpable and overriding error in her finding of serious prejudice.”
“Without evidence of serious prejudice, the balancing of interests did not support dismissal for want of prosecution in a case where, prior to April 2021, delay had not been raised as an issue or asserted as a basis for remedial relief,” DeWitt-Van Oosten said.
Still, if simple cases like this are taking this long, she pointed out, the current standard may have to be changed: The object of the court rules is “to secure the just, speedy and inexpensive determination of every proceeding on its merits” and reformulating the test for dismissal may cause parties to speed up.
“We cannot do that here,” DeWitt-Van Oosten concluded. “We were not asked to reconsider the legal standard and doing so would require a five‑member division.”