Executive Summary: Key Legal and Evidentiary Issues

• The central legal issue was whether the plaintiff's delay in prosecuting a malicious prosecution claim justified dismissal for want of prosecution.

• The court assessed whether the delay was inordinate and whether it was excusable under the Giacomini test.

• Plaintiff’s counsel's failure to act diligently, not the plaintiff’s own conduct, was the main cause of delay.

• Defendants argued nearly six years of delay with minimal litigation activity prejudiced their position.

• The judge found the delay excusable due to counsel’s inattentiveness and external factors, including COVID-19 disruptions.

• Costs of the application were awarded to defendants despite their loss, as the delay originated from the plaintiff's side.

Facts and outcome of the case

Background and employment context

Justin Greer was employed by Jacmar Holdings Ltd. from May 2014 to December 2015. Hans Sawatzky, a director and shareholder of Jacmar, accused Greer of theft and threatening behavior after a workplace dispute. This led to criminal charges against Greer for theft and uttering threats. However, Greer was acquitted on all counts following separate trials in 2016 and 2017.

Subsequently, Greer initiated two civil actions. First, in 2017, he filed a wrongful dismissal and breach of contract claim. Then, in 2019, he commenced a separate action for malicious prosecution, alleging the criminal charges were initiated without reasonable and probable cause and with malice.

Procedural history and delays

The two civil actions were consolidated for trial purposes, with a joint trial originally scheduled for December 2020. However, the trial was struck off the list, officially for lack of a scheduled trial management conference, though the parties agreed it was primarily due to COVID-19 impacts.

Following this, prolonged periods of inactivity occurred. The plaintiff’s lawyer, Mr. Drinovz, failed to communicate or act with diligence, delaying discovery efforts and failing to provide promised clarifications or schedule trial dates. Greer, although not proactive at all times, consistently followed up with counsel and expected the matter to progress. Delays were also attributed to counsel’s personal events, such as his wedding and an extended honeymoon.

Defendants' application to dismiss for want of prosecution

Jacmar Holdings Ltd. and Mr. Sawatzky applied under Rule 22-7(7) to dismiss the malicious prosecution action for want of prosecution, arguing that nearly six years had passed with significant and unjustified delays. They contended that the inactivity prejudiced their ability to defend the case fairly.

The court applied the three-part test from Giacomini Consulting Canada Inc. v. The Owners, Strata Plan EPS 3173: (1) whether the delay was inordinate, (2) whether it was excusable, and (3) whether it was in the interests of justice for the case to proceed. The judge found the delay inordinate but concluded it was excusable because the plaintiff was not to blame—it was due to the lack of diligence by his lawyer.

Outcome and costs

The court dismissed the defendants’ application, allowing the malicious prosecution claim to proceed to trial, now scheduled for February 2026. However, the plaintiff was ordered to pay the costs of the application to the defendants, as the delays stemmed from his legal representation.

Although Mr. Greer succeeded in preserving his lawsuit, the ruling underscores the court’s disapproval of the delay and its consequences. A case planning conference was also ordered to keep the matter on track.