Executive Summary: Key Legal and Evidentiary Issues

• A 17-year delay in prosecuting a professional negligence action resulted in dismissal for want of prosecution under the revised Giacomini test.

• The plaintiff’s focus on mitigating losses and reviving the development project did not excuse the failure to advance the lawsuit.

• Significant prejudice to the defendants arose from the roughly 20-year gap since the underlying events, undermining witness memory and defence preparation.

• Health issues and alleged harassment were accepted as genuinely believed but not shown to have actually prevented litigation steps over many years.

• The case remained in an early procedural stage with no discoveries completed despite the long passage of time.

• Considering all interests of justice factors, the court dismissed the action and awarded the defendants costs, to be assessed.

Background of the dispute

Abdul M. Mousa sued Thurber Engineering Limited and Brian Nakai, P. Eng, alleging professional negligence in geotechnical engineering services provided for his land development project. The underlying work dated back to 2005 and 2006. The action was commenced on June 5, 2008, and the defendants filed their defence on July 9, 2008.

The claim asserted that negligent geotechnical engineering by Thurber Engineering Limited and its employee, Nakai, caused loss to Mousa’s development project, for which he sought damages.

Procedural history and delay

After the pleadings closed in 2008, the litigation stalled. Initial lists of documents were exchanged, but there were long periods of inactivity. Additional lists of documents were exchanged only in 2019 and 2020, with the last formal step being an amended list of documents served by Thurber Engineering Limited on July 14, 2020. No examinations for discovery were ever conducted, nor were other fact-gathering steps taken.

By the time of the defendants’ dismissal application, approximately 17 years had passed since the claim was filed, with about five years of complete inactivity since the last litigation step. The case remained stuck in an early procedural stage despite the significant passage of time.

The defendants’ application for dismissal

The defendants applied to dismiss the action for want of prosecution. They relied on the revised test in Giacomini Consulting Canada Inc. v. The Owners, Strata Plan EPS 3173, which asks: whether delay is inordinate; whether it is inexcusable; and, if both are found, whether it is nonetheless in the interests of justice for the action to proceed.

They argued that the extensive delay was excessive and uncontrolled, that the plaintiff had no adequate excuse, and that the passage of roughly 20 years since the relevant events caused serious prejudice to their ability to defend.

The plaintiff’s explanations

Appearing in person, Mousa opposed the application. He said he had devoted his time and effort after starting the claim to mitigating his losses and attempting to revive the development project, which he presented as a reason the litigation had not advanced. He also filed evidence of significant health problems, which he attributed to chronic stress from the project and the defendants’ alleged conduct.

Mousa further described ongoing harassment and harm he believed were inflicted by individuals spying on him and subjecting him and his spouse to harmful radiation, and he claimed persecution by government agents, including police. He maintained that these circumstances contributed to the delay and that the case should be allowed to proceed.

Inordinate delay

The court held that the delay was plainly inordinate. After filing a claim, a plaintiff is expected to move it forward, but Mousa took no meaningful steps between the closing of pleadings and 2019–2020, and none after the last document exchange. The court noted that even four to six years of delay can be found inordinate in other cases; here, the delay stretched to about 17 years overall, with five years since the last step. Viewed cumulatively, the court characterized the delay as excessive and uncontrolled.

Inexcusable delay

Turning to whether the delay was excusable, the court concluded it was not. While a plaintiff has a duty to mitigate losses, that duty does not override or postpone the obligation to prosecute a filed claim. The court accepted that Mousa faced health issues but found they did not credibly explain an almost continuous failure to advance the case over many years. As to the alleged harassment and persecution, the court accepted that Mousa genuinely believed his allegations but found he provided no sufficient evidentiary link showing how those circumstances actually prevented him from taking litigation steps for such a prolonged period.

In the absence of a credible explanation, the court drew the natural inference that the inordinate delay was inexcusable.

Interests of justice

The court then considered whether, despite inordinate and inexcusable delay, it would be in the interests of justice to allow the action to proceed. It applied the non-exhaustive factors, including prejudice to the defendants, length of delay, stage of proceedings, the context and reasons for delay, the role of counsel, public interest, and the merits.

On prejudice, the court emphasized that the events at issue occurred around 2005–2006, roughly 20 years before the application. The passage of time would naturally impair witnesses’ memories and undermine the defendants’ ability to fairly mount a defence. This prejudice, coupled with the length of delay, weighed heavily in favour of dismissal.

The stage of litigation also supported dismissal. Although documents were exchanged, there had been no examinations for discovery and no completion of the fact-finding procedures contemplated by the Supreme Court Civil Rules. After 17 years, the case remained in its early stages, a factor the court considered significant.

The defendants argued that the allegation of professional negligence against a professional engineering firm and an individual engineer carried serious professional, business, and personal implications. The court accepted that such allegations engage important interests but, in the absence of specific evidence quantifying the impact, gave this factor only limited weight.

There was no evidence that the defendants had pressured the plaintiff to move the action along, so that factor was neutral. With respect to the context and reasons for delay, the court had already found that Mousa’s focus on mitigation and his other explanations did not justify the prolonged inaction. On the merits, the court accepted that the claim might have some merit and was not obviously doomed to fail, but it rejected the contention that the case raised any issue of genuine public importance.

Having weighed all factors, the court concluded that it was not in the interests of justice to allow the action to proceed in the face of such inordinate and inexcusable delay.

Outcome and costs

The court dismissed Mousa’s claim against Thurber Engineering Limited and Brian Nakai, P. Eng for want of prosecution. As the successful parties, the defendants were awarded their costs of the action and of the application, with the amount to be assessed in the usual way rather than fixed in the decision.