Executive Summary: Key Legal and Evidentiary Issues

• Plaintiff alleged negligent remediation and mishandling of an insurance claim following a home flood.

• A procedural motion was brought by the defendants to dismiss the claim for want of prosecution due to a 6+ year delay.

• The court applied the Giacomini framework to assess inordinate and inexcusable delay in litigation.

• Plaintiff argued financial hardship, health issues, and lack of legal support contributed to the delay.

• Defendants failed to show actual prejudice or loss of evidence impairing their defense.

• The court dismissed the application to strike, finding the interests of justice favored continuation of the action.

Facts and outcome of the case

Background of the claim

In this case, the dispute arose from a flood in Cheryl Louie’s heritage home in April 2015, caused by a burst toilet water line. She submitted a claim to her home insurer, Security National Insurance Company and its agent TD Insurance Direct Agency Inc. The insurers accepted the claim and appointed Belfor (Canada) Inc. to perform restoration work. Ms. Louie claimed the work was substandard, left unremediated damage, and led to further loss including damage or theft of artwork and personal items.

Despite initiating a civil claim in April 2017 to stop the limitation clock, procedural progress in the litigation stalled after a discovery session in September 2018. The plaintiff claimed to have spent approximately $220,000 on additional remediation and sought damages for losses and income disruption. Attempts at settlement failed, and no further steps were taken by Ms. Louie’s counsel. Eventually, counsel ceased acting, but without formally withdrawing, leaving the plaintiff unrepresented and unaware of critical procedural risks.

The defendants’ application to dismiss

In January 2025, the defendants applied to have the claim dismissed for want of prosecution, citing an inordinate delay of more than six years since the last meaningful step. The court assessed this under the updated legal test from Giacomini, which asks whether the delay is inordinate, inexcusable, and whether the interests of justice permit the action to proceed.

Ms. Louie argued that her delay was not deliberate but resulted from lack of resources, unresolved legal representation, health issues, and caregiving responsibilities. She also asserted that her former counsel failed to advise her on necessary procedural steps. The court acknowledged the delay but found that only about five years and four months of it was inexcusable after deducting one year due to COVID-related court disruption.

Outcome of the application

Despite the delay, the court found that the defendants failed to establish significant prejudice that would impair their ability to defend the claim. Much of the relevant evidence, including discovery of Belfor’s representative and expert reports, had been preserved. The claim, while dormant, had reached a moderately advanced stage.

The court also considered the role of the plaintiff’s former counsel in contributing to the delay and noted that the plaintiff was now prepared to proceed self-represented with the assistance of her advocate, Mr. Nowak. Given these circumstances and the arguable merits of the claim, the court ruled that it was in the interests of justice for the matter to proceed.

Conclusion

The Supreme Court of British Columbia dismissed the defendants’ application to strike the case for want of prosecution. Ms. Louie was awarded costs for the application, but no damages were awarded at this stage. The litigation remains ongoing and will proceed to determination on the merits unless resolved otherwise.