Executive Summary: Key Legal and Evidentiary Issues

• ICBC sought dismissal of the plaintiffs’ insurance claim for inordinate and inexcusable delay under Rule 22-7(7) of the Supreme Court Civil Rules.

• The court applied the revised Giacomini test to determine whether delay warranted dismissal.

• Plaintiffs faced prolonged procedural delays partially due to the personal safety concerns of Anna Walter and the criminal actions of Sergey Walter.

• ICBC contributed significantly to the delay, including late filings and slow scheduling of discoveries.

• The plaintiffs' claim was found to have arguable merit and was not bound to fail.

• The court held that despite the passage of time, it was in the interests of justice for the claim to proceed.

Facts and outcome of the case

The plaintiffs, Anna Walter, Sergey Walter, and their company New Future Enterprises Ltd., sued the Insurance Corporation of British Columbia (ICBC) following a 2016 fire that destroyed seven vehicles. Five of those vehicles were part of this litigation, and most were either owned or leased by New Future. ICBC was the insurer. Anna Walter reported the fire on July 21, 2016, and ICBC conducted a fire investigation shortly thereafter. Despite this, communication delays and lack of transparency from ICBC persisted, including a two-year delay in disclosing the investigative report.

The plaintiffs filed a civil claim on June 21, 2017, but ICBC delayed its response until October 16, 2018, following the examination of Sergey Walter. The litigation progressed slowly, hampered by complex procedural issues, including an application to remove the Walters as plaintiffs, security for costs, and the severing of the bad faith portion of the claim. Complicating the case further were significant personal and safety issues: in 2018, Sergey Walter assaulted Anna Walter, leading to his incarceration and subsequent disappearance after release. Anna Walter went into hiding, which impacted her ability to move the litigation forward.

ICBC eventually applied to dismiss the case under Rule 22-7(7) for want of prosecution, arguing that the plaintiffs had delayed unreasonably and that the delay was inexcusable. The court reviewed the timeline holistically under the Giacomini framework, which considers whether the delay was inordinate, whether it was excusable, and whether it is in the interests of justice for the matter to proceed.

The court found that although the delay was inordinate, it was excusable given the combination of Anna Walter’s personal safety concerns, ICBC’s own role in delaying the litigation, and ongoing steps taken in related proceedings. Even if the delay had been deemed inexcusable, the court stated it would still have allowed the claim to proceed in the interests of justice. The plaintiffs had disclosed financial records and provided an expert report, while ICBC’s ability to defend was not substantially prejudiced. The claim was not bound to fail and still stood on arguable legal footing.

The court dismissed ICBC’s application to strike the claim. No damages were awarded at this stage, and no costs were expressly granted. The matter remains active, and the court directed the plaintiffs to schedule a case planning conference to avoid further delay.