A contractor’s claim for more than $82,000 in alleged construction extras was dismissed after the Supreme Court of British Columbia found that years of inordinate and inadequately explained delay meant the action should not continue.
The decision matters for both sides of a construction dispute. Filing a lawsuit does not preserve a claim indefinitely, and a defendant facing a long-dormant action may have grounds to seek dismissal even without proving that every aspect of the defence has been compromised by the passage of time.
The Claim Had Been Sitting for Years
The dispute arose from construction work performed at a clinic. The contractor claimed $82,720.85 for work it characterized as extras. The owner maintained that the agreement was fixed-price, had been paid in full, and did not require payment of the additional charges.
The contractor initially sought judgment by summary trial. That application was adjourned in 2019, and the contractor was ordered to prepare a summary of the expenses claimed with reference to supporting evidence. It did not prepare that summary. The proceeding then remained largely inactive for years.
By the time the owner applied to dismiss the action, nine years had passed since the lawsuit was filed and seven years since the summary trial application was adjourned. The Court found the delay inordinate.
An Explanation for Delay Needs Evidence
The Court first asks whether the delay is inordinate and inexcusable. If both are established, it then considers whether the interests of justice nevertheless favour allowing the action to continue. Prejudice to the defendant remains important, but it is not a prerequisite to dismissal.
The contractor relied on personal, family, business and medical circumstances, as well as periods in which lawyers had been retained but the litigation did not advance.
The difficulty was evidentiary. The Court found no concrete evidence showing how those circumstances prevented the contractor from advancing the lawsuit. There were no supporting documents explaining much of the delay, no evidence from prior lawyers, and no medical opinion establishing that the contractor’s representative had been unable to proceed in 2023 or 2024.
The Court also noted that the contractor had commenced other lawsuits during the same period. It therefore found that the delay had not been reasonably excused.
The decision also confirms an important procedural point. Responsibility for advancing a lawsuit rests with the party who brought it. A defendant is not required to pursue the plaintiff or ensure that the plaintiff moves its own claim forward.
Delay Can Matter More Where a Claim Depends on Oral Discussions
The Court found actual prejudice in this case because the contractor relied on verbal discussions to support its claim for extras.
Those discussions had occurred about ten years earlier. The Court found that the passage of time affected the ability of witnesses to accurately recall what had been said.
That point has particular significance where a construction claim for extras depends on verbal discussions. As years pass, the witnesses who participated in those discussions may be less able to remember the details accurately.
What Parties to Construction Disputes Should Take From the Decision
Starting a lawsuit is not enough to preserve a construction claim indefinitely. Once proceedings are commenced, the claimant remains responsible for advancing them within a reasonable period.
If circumstances genuinely prevent a party from doing so, a later explanation should be supported by evidence showing how those circumstances affected the ability to move the litigation forward. General descriptions of hardship may not be enough.
For defendants, prolonged inactivity should not automatically be treated as something that must simply be accepted. Where a construction claim has remained dormant for years, particularly one that depends heavily on old conversations and witness memory, dismissal for want of prosecution may become a substantive option.
In this case, the Court concluded that the straightforward payment dispute should have been resolved years earlier and dismissed the action with ordinary costs payable to the defendant.
