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Digest of the Week — Dismissal For Unreasonable Delay

Galdikas v. Spalding |
2015 CarswellBC 1076 |
British Columbia Supreme Court

Civil practice and procedure | Disposition without trial | Dismissal for delay | Requirement to show prejudice | Miscellaneous

Plaintiff was engaged in study of orangutans and primary focus of study was overseas — Defendant S wrote book about plaintiff's work and book was published by defendant publisher — Plaintiff commenced action for defamation and malice against S and publisher in March 2000 — Defendant filed statement of defence in June 2000 — Documents were exchanged in 2002 but examinations for discovery were not held — There had been no communication between parties or counsel since 2004 and no procedural steps taken in litigation since December 2002 — Plaintiff filed notice of intention to proceed in November 2014 — S applied for dismissal of plaintiff's claim for want of prosecution — Application granted; action dismissed — Plaintiff was president of high profile organization headquartered in Los Angeles and was part-time professor at Canadian university, and it should not have been difficult for plaintiff's counsel to contact her despite fact that plaintiff's work was overseas — It was odd that plaintiff was content to let things lie for 12 years, particularly given damage plaintiff claimed to have suffered — S established that she had been prejudiced by delay in prosecution — Evidence provided by S and her counsel demonstrated difficulty of locating individuals interviewed by S between 18 to 20 years ago — Plaintiff's evidence to effect that some witnesses could be found confirmed that many of them had either died or could not be located — Of witnesses who could be located, many were past retirement age and there was substantial risk that evidence that could be obtained from witnesses would be of little assistance — Memories would be sorely tested trying to recall events or conversations that had occurred 19 to 21 years before earliest date that action could be tried, and this was particularly so where some individuals involved were in their 60s or 70s at relevant time — There was no conclusion to be drawn from S's failure to apply for dismissal for want of prosecution sooner — There was little point in bringing application before time when it might meet with success — S had suffered under weight of plaintiff's allegations of defamation and malice — Waiting significant period before bringing application may be seen as sign of cautious and conservative approach by plaintiff and not lack of suffering — Significant and irremediable prejudice had been caused to defendants by delay in prosecuting action — Circumstances made it important for plaintiff to diligently pursue action and her reasons for her failure to do so were questionable.
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