Dismissal for Want of Prosecution After Prolonged Litigation Delay 

The Dispute 

A clinic owner hired a general contractor to carry out the construction work on her practice. When the work finished, the contractor sent a final invoice of just over $80,000 on top of what she had already paid, calling those charges extras outside the agreed price. She had understood the price to be fixed, had paid it in full, and refused to pay the extras. 

The contractor sued the following year and later brought a summary trial application. After that application was adjourned in 2019, the claim remained largely dormant for years. 

The Parties' Positions 

The clinic owner applied to dismiss the action for want of prosecution. There was no dispute about the governing test, set out by the Court of Appeal in Giacomini Consulting Canada Inc. v The Owners, Strata Plan EPS 3173. A court asks first if the defendant has established inordinate delay, then if that delay is inexcusable, and only if both are answered against the plaintiff does the interests of justice question arise. Her position was that the delay was inordinate on its face, that the summary of expenses ordered in 2019 had never been produced, and that the prolonged delay prejudiced her defence. 

The contractor resisted the application on the footing that the delay was excusable. It submitted that it had moved expeditiously until the summary trial application was adjourned in 2019, on account of the volume of material the clinic owner had filed. The contractor's representative deposed to a sequence of events in the years after: a separation and divorce, the pandemic's effect on the business, a parent's diagnosis with Alzheimer's disease and the caregiving it required, and medical conditions he said impaired his cognitive and physical abilities. He also deposed that lawyers approached in 2024 and 2025 took no meaningful steps before current counsel came on record at the end of 2025. 

The Court's Decision 

The court granted the application and dismissed the action, with ordinary costs of the action payable to the clinic owner. It found the delay inordinate: ten years since the final invoice, nine since the claim was filed, seven since the summary trial application was adjourned on terms. The summary the court ordered was never prepared, and no examinations for discovery had been set or completed. 

On excusability, the court accepted that 2020 and 2021 had been difficult years for the contractor's representative, but found he had given no concrete evidence of how his difficulties prevented him from advancing the litigation. There were no details of his medical conditions, no medical opinion supporting a finding that he was medically unable to proceed in 2023 or 2024, and no evidence from the earlier lawyers. The Court Services Online database showed the contractor had commenced two actions in 2022, seven in 2023 and three in 2024, from which it appeared able to engage in legal proceedings throughout. The court adopted the reasoning that a plaintiff who begins proceedings assumes sole responsibility for moving them along, and that a defendant carries no parallel obligation. 

Prejudice was not an essential element, but the court nonetheless found it. The claim for extras rested on verbal discussions, and the ability of witnesses to recall them accurately diminishes over time. It was not in the interests of justice for a straightforward claim, which ought to have been resolved years earlier, to proceed. 

Key Lessons for Contractors and Project Owners 

• Comply with an order to itemize a claim before the file goes quiet. The summary ordered in 2019 was still outstanding seven years later, and the court listed it among the steps not taken before finding the delay inordinate. 

• Record the reason for a pause in litigation while the pause is happening. The court accepted that 2020 and 2021 were difficult years, but the evidence did not establish how those circumstances prevented the action from moving. 

• Expect other litigation activity to be considered. The court record showed that the contractor had commenced twelve other actions between 2022 and 2024, which the court relied on in finding that it appeared able to engage in legal proceedings during that period. 

• Where a claim for extras depends on verbal discussions, prolonged delay can make the claim harder to prove or defend. Here, the court found prejudice because the ability of witnesses to accurately recall verbal discussions can diminish over time, and the relevant conversations were approximately ten years old. 

The result turned on the record and on the evidence before the court about the reasons for the delay. A similar application may resolve differently. 

ATAC LAW acts for owners, contractors and subcontractors in construction payment disputes and in the applications that arise when a claim stalls. 

Argued by Megan George of ATAC LAW, who appeared for the clinic owner on the application.