Executive Summary: Key Legal and Evidentiary Issues

• The Plaintiffs began their action in July 2017 over a 2013 Deer Lake land purchase but took no substantive procedural steps to advance it for more than seven years after filing the Statement of Claim.

• The Court held that this delay was inordinate and inexcusable, noting that the claim was neither complex nor difficult to prosecute and that virtually no progress was made toward trial.

• The Plaintiffs argued that the Defendants’ failure to file Statements of Defence (other than the Fourth Defendant) prevented the action from moving forward, but the Court found plaintiffs’ counsel had expressly waived the requirement for those Defences.

• The Defendants repeatedly sought status updates and warned of an application to dismiss, while the Plaintiffs provided no concrete plan to move the case along and did not meaningfully respond until after the dismissal applications were filed.

• The Court accepted that the lengthy passage of time created serious prejudice, including faded memories, lack of discoveries, absence of preserved evidence, and ongoing stress and embarrassment for at least one Defendant in his capacity as a lawyer and estate trustee.

• The action was dismissed for want of prosecution under Rule 40.11, and the Plaintiffs were ordered to pay the Defendants’ costs of the applications, to be taxed under Column 3 of the Scale of Costs, with no exact amount specified.

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Background and facts of the dispute

The proceeding arose from a real estate transaction involving land at 20 Moss’ Lane, Deer Lake, Newfoundland and Labrador. The Plaintiffs, Shawn Woon and Deanna Young, lived in Fort McMurray, Alberta and later relocated to Edmonton, Alberta so that Ms. Young could access medical treatment she required. They retained Maurice Rumbolt and NL Realty Ltd. as their realtors to purchase the Deer Lake property in 2013, and the transaction closed on or before July 12, 2013. The deed transferring title to the Plaintiffs was registered at the Registry of Deeds for the Province of Newfoundland and Labrador on July 25, 2013.

The Plaintiffs say they retained Kenneth J. Brothers as their lawyer on the transaction and that the land was owned by Rowena Strickland, whose estate is represented by Timothy J. Thomas as executor and trustee. They say they intended to build a house on the property. The Plaintiffs applied to the Town of Deer Lake for a permit to develop the land and say they received a letter from the Town in June 2017 advising that the application did not adhere to the Town’s Development Regulations because the property did not have 50 feet of frontage on a road up to town standards and did not have access to town water and sewer. They also claim they became aware of efforts to preclude their access to the property through the installation of a locked gate or fencing device in or about Moss’ Lane, which they say prevents them from accessing their lot.

Allegations and causes of action against the Defendants

The Plaintiffs filed their Statement of Claim on July 13, 2017. They sued Mr. Brothers (First Defendant), Mr. Rumbolt and NL Realty Ltd. (Second and Third Defendants), and Mr. Thomas as executor and trustee of the estate of Ms. Strickland (Fourth Defendant). They based their claim on negligence, breach of contract and other causes of action.

As against the First Defendant, the Plaintiffs allege professional negligence and conflict of interest. They state that he failed to obtain a Legal Survey or a Surveyor’s Real Property Report and instead affixed, or caused to be affixed, to the Indenture of Conveyance a copy of a 1976 conveyance between Donald Moss (Sr.) and Rowena E. Strickland containing a hand-drawn sketch purporting to depict the legal boundaries of the property. They also claim that the First Defendant was in a conflict of interest in representing both them, as purchasers, and the vendor in the transaction.

Regarding the Second and Third Defendants, the Plaintiffs allege that a contract existed under which these Defendants agreed to perform the duties of real estate agents for the Plaintiffs in relation to the transaction. They say the Second and Third Defendants failed to meet the standard of practice applicable to real estate agents in Newfoundland and Labrador.

As to the Fourth Defendant, the Plaintiffs allege that a contract existed between them and the Fourth Defendant, and that it was a term of this contract that he would convey a property that could be accessed by them and developed by them as a residential property suitable for human habitation.

Procedural history and delay in prosecution

The Plaintiffs filed their Statement of Claim on July 13, 2017 and served it on the Defendants. The exact dates of service on all Defendants are not known from the reasons, but the Fourth Defendant confirms he was served on January 11, 2018. The Fourth Defendant then filed a Demand for Particulars on January 18, 2018, received a Reply to Demand for Particulars on February 22, 2018, and filed his Defence on March 27, 2018.

The First Defendant did not initially file a Defence because plaintiffs’ counsel granted a waiver of Defence. In an email of July 14, 2017, defence counsel confirmed that if plaintiffs’ counsel required a Defence, she would provide a reasonable period of written notice so a Defence could be prepared. Counsel for the Second and Third Defendants also received waivers of Defence on similar terms in August 2017 and January 2018. Over the years, counsel for the First, Second, Third, and Fourth Defendants repeatedly contacted plaintiffs’ counsel seeking status updates and clarification of whether the Plaintiffs intended to proceed, including by phone calls and emails on dates set out in their materials. Plaintiffs’ counsel indicated she was seeking instructions from her clients but did not communicate any concrete steps or timelines to advance the case.

The Court summarized the key procedural steps taken from the commencement of the action to the time of the applications. The Statement of Claim was filed on July 13, 2017. The Defence of the Fourth Defendant was filed on March 27, 2018. The First Defendant filed a Notice of Intention to Proceed on October 11, 2024. The First Defendant filed an Application to Dismiss on November 25, 2024. The Second and Third Defendants filed their Application to Dismiss on December 17, 2024. The Fourth Defendant filed his Application to Dismiss on October 9, 2025. The Plaintiffs filed their own Notice of Intention to Proceed on November 6, 2025. The three Applications to Dismiss were heard together on December 8, 2025, and judgment was reserved.

The dismissal applications under Rule 40.11

Rule 40.11 of the Rules of the Supreme Court, 1986 provides that where a plaintiff does not apply to set a proceeding down for trial, the defendant may either apply to set it down for trial or apply to dismiss the proceeding for want of prosecution, and the Court may dismiss the proceeding or make an order that is just.

The First Defendant filed his Application to Dismiss on November 25, 2024. He stated that no substantial steps had been taken by the Plaintiffs to move the litigation forward since the Statement of Claim was issued in July 2017, more than seven years earlier, and that there had been inordinate and undue delay in moving the litigation forward, to the prejudice of the Defendants. The Second and Third Defendants filed a similar Application to Dismiss on December 17, 2024, also alleging inordinate and undue delay and setting out their efforts to obtain status updates from plaintiffs’ counsel.

The Fourth Defendant’s Application to Dismiss, filed October 9, 2025, set out his own procedural history and repeated attempts to obtain information from plaintiffs’ counsel. He stated that the Plaintiffs’ delay in moving the proceeding forward was inordinate, without justifiable excuse, and had resulted in real and inferred prejudice to him.

Plaintiffs’ opposition and reliance on unclosed pleadings

The Plaintiffs opposed the applications. They filed a Brief on November 7, 2025, but did not address in detail whether their delay was inordinate. In that Brief they briefly stated that whether there is inordinate delay depends on the type of case and asserted that they disputed that the facts gave rise to a finding of inordinate delay. They did not explain or account for the length of the delay.

Instead, the Plaintiffs argued that it would be inappropriate for the Court to hear the applications because only one of the four Defendants had filed a Defence and the pleadings were therefore not closed. They submitted that they could not apply to set the matter down for trial until the pleadings were closed, and that it was incumbent on the First, Second, and Third Defendants to file Statements of Defence to close the pleadings and move the action to the discovery stage.

The Court rejected this argument. It found that plaintiffs’ counsel had granted express waivers of the requirement to file Defences to the First, Second, and Third Defendants, on terms that she would provide reasonable notice if a Defence was later required. Defence counsel periodically checked with plaintiffs’ counsel, who did not withdraw those waivers. The Court described it as disingenuous for plaintiffs’ counsel to rely on the absence of Defences as an obstacle to progress when she had waived the requirement that they be filed.

Legal test and findings on inordinate and inexcusable delay

Justice Handrigan applied the established three-part test for dismissal for want of prosecution, as summarized in earlier case law: (1) whether there has been inordinate delay; (2) if so, whether that delay is inexcusable; and (3) whether the defendants are likely to be seriously prejudiced by the delay.

In assessing inordinate delay, the Court noted that the transaction closed on or before July 12, 2013 and that the Plaintiffs became aware of the Town’s refusal of a permit on or about June 28, 2017, after receiving a letter dated June 27, 2017. The Statement of Claim was issued on July 13, 2017, 15 days after they received the Town’s letter. The Applications to Dismiss were heard on December 8, 2025, almost eight and one-half years after the proceedings began.

The Court observed that between the filing of the Statement of Claim in July 2017 and the filing of the First, Second, and Third Defendants’ Applications to Dismiss in 2024, the Plaintiffs took no formal steps to advance their claim other than filing the Statement of Claim itself. It characterized the delay as “immoderate, uncontrolled, excessive and out of proportion to the matters in question.” The Court found that nothing in the nature of the claim made it inherently difficult to prosecute and that all elements of the causes of action would have crystallized before the Statement of Claim was filed.

On the second element, the Court found the delay to be inexcusable. The Plaintiffs did not provide a credible explanation for their inactivity. Their main submission was that the Defendants had not filed Defences and that this should weigh against dismissal, but the Court concluded that the waivers of Defence, granted by plaintiffs’ counsel, explained why Defences had not been filed and that this could not properly be used to shift responsibility for the delay to the Defendants.

Prejudice to the Defendants and systemic delay concerns

On the third element, the Court considered whether the Defendants were likely to be seriously prejudiced by the delay. It noted that over time memories fade, witnesses may become unavailable, and documentary evidence may deteriorate. It emphasized that while the relevant period for delay typically runs from the commencement of the proceedings, here the underlying events dated back to 2013, so by the time of the applications there had been about 12 and one-half years since the transaction that formed the factual basis of the claim.

The Court found that no discoveries had been conducted and no measures appeared to have been taken to preserve documents or interview witnesses that could assist in refreshing memories for trial. It accepted submissions that the length of time and the state of the record would likely prejudice the Defendants’ ability to defend the case if it were allowed to proceed.

The Fourth Defendant also described in his affidavit the practical and personal impact of the proceedings. He stated that, as estate trustee and a lawyer, he had to retain counsel, submit the matter to his insurer, and explain the claim to partners and the estate. He said that these steps had taken considerable time and caused him stress and embarrassment, and that having the claim pending since 2017, four years after the transaction, without an opportunity to clear his name, had compounded these effects.

The Court referred to submissions by counsel for the Second and Third Defendants that courts across Canada have increasingly emphasized the systemic harm caused by delay and the need for timeliness and efficiency in civil litigation, and that claimants who fail to act with appropriate expedition risk losing the right to prosecute their claims. The Court agreed with counsel for the Defendants that they were likely to be seriously prejudiced if the proceedings were allowed to continue.

Ruling and overall outcome

The four Defendants applied under Rule 40.11 to dismiss the Plaintiffs’ claim for want of prosecution. The Plaintiffs opposed, asserting mainly that the Defendants had not proved prejudice and relying on the absence of Defences from three Defendants. Justice Handrigan held that the Plaintiffs’ delay in prosecuting their claim was inordinate and inexcusable and that the Defendants had proved on a balance of probabilities that they would suffer serious prejudice if the proceedings continued.

In the result, the Court allowed all three Applications to Dismiss by the First, Second, Third, and Fourth Defendants. The Plaintiffs’ claim was dismissed for want of prosecution pursuant to Rule 40.11 of the Rules of the Supreme Court, 1986. The Court ordered that the Plaintiffs pay the Defendants the costs of their Applications, to be taxed under Column 3 of the Scale of Costs. The decision does not specify a dollar amount for those costs.