Executive Summary: Key Legal and Evidentiary Issues

• The plaintiff failed to advance its claim for over five years, leading to dismissal for want of prosecution.

• A Certificate of Pending Litigation (CPL) and lien filed by the plaintiff significantly affected the defendant’s financial circumstances.

• The Court found the plaintiff’s justifications for delay to be not credible and legally insufficient.

• Procedural inactivity included failure to exchange documents or schedule examinations for discovery.

• The presumption of prejudice to the defendant was accepted due to the length of the delay.

• The Court concluded that allowing the action to proceed would be unjust given the cumulative impact on the defendant.

Facts and outcome of the case

In this case, the dispute began with an oral contract between Khela Excavating Ltd. and Audrey Eileen Olin in late 2017. The plaintiff was hired to carry out excavation and backfilling work on Ms. Olin’s residential property based on blueprints she provided. However, the work was allegedly incomplete and not performed to specification. Ms. Olin refused to pay the billed amount of $21,682.50, asserting that Khela breached the agreement, double-billed for certain tasks, and charged for unperformed work. She also incurred additional expenses to remediate and complete the job using another contractor.

In response, Khela filed a lien against Ms. Olin’s property on September 20, 2018, and formally initiated legal action by filing a Notice of Civil Claim on September 17, 2019. A Certificate of Pending Litigation (CPL) followed the next day, encumbering the title to Ms. Olin’s property and preventing her from refinancing or deferring property taxes.

Despite these serious consequences, Khela took no further steps to advance the litigation. The plaintiff failed to file a list of documents, initiate discovery, or make any other procedural moves for nearly six years. It wasn't until the defendant’s counsel gave notice of their intent to seek dismissal for want of prosecution that Khela responded.

The Court applied the three-part test for want of prosecution: determining whether the delay was inordinate, inexcusable, and whether it would be just to allow the matter to proceed. Justice Murray found all three elements were satisfied. The plaintiff’s explanations—waiting for the Court to reach out, the COVID-19 pandemic, and personal bereavement—were deemed insufficient. The Court highlighted that Khela was an experienced litigant familiar with court procedures and that minimal court closures during COVID did not prevent procedural steps like document exchange.

The Court also emphasized the serious prejudice to Ms. Olin, a 76-year-old retiree on fixed income, who suffered financial hardship due to her inability to defer over $28,000 in property taxes because of the CPL. These consequences exceeded the amount of the original claim and tipped the scale in favor of dismissal.

Justice Murray concluded that continuing the action would not serve the interests of justice and dismissed the claim. The Court also ordered that all charges, including the CPL, be removed from Ms. Olin’s property and awarded her costs, with the amount to be determined if not agreed upon by the parties.