Executive Summary: Key Legal and Evidentiary Issues

• Geoffrey Sidhu applied under Rule 22-7(7) of the Supreme Court Civil Rules to dismiss the action brought by Lisa McKay for want of prosecution.
• Central to the application was whether the plaintiff's delay of over seven years in advancing the civil action was inordinate and inexcusable.
• McKay alleged that Geoffrey Sidhu and the other defendants induced her $1.75 million investment in Bracetek Industries Group Ltd. through negligence, negligent misrepresentation, and/or breach of fiduciary duty.
• Parallel proceedings before the British Columbia Securities Commission — which resulted in a settlement, disgorgement order, and recovery of funds for the plaintiff — were the principal excuse offered for the delay in prosecuting the civil action.
• Absence of direct evidence from the plaintiff about her reasons for delay was a contested evidentiary issue, with the court ultimately finding that the delay could be assessed from inferences drawn from the record.
• The court applied the revised three-part test from Giacomini Consulting Canada Inc. v. The Owners, Strata Plan EPS 3173, 2023 BCCA 473, finding the delay inordinate but excusable.

Facts of the case

Lisa McKay commenced this action on December 11, 2017, in the Supreme Court of British Columbia, claiming damages against Geoffrey Rajay Sidhu, Abtar Shar Sidhu (now deceased), and Bracetek Industries Group Ltd. ("Bracetek"). McKay alleged that she was induced to invest in Bracetek through the negligence, negligent misrepresentation, and/or breach of fiduciary duty of Geoffrey Sidhu, and that Abtar Sidhu and Bracetek knowingly assisted Geoffrey Sidhu or acted jointly with him to deceive her. In December 2015, McKay invested $1.75 million in Bracetek, followed by a further $52,500 in January 2016 to become a "value added reseller" of Bracetek products. On February 11, 2016, McKay filed a complaint with the British Columbia Securities Commission (the "Commission"), and on February 18, 2016, she demanded the return of her investment from Bracetek.

Regulatory proceedings and parallel Commission process

In or about January 2017, the Commission began investigating McKay's complaint, including by seeking to interview Abtar Sidhu and Geoffrey Sidhu, although difficulties arose in arranging those interviews. On March 17, 2017, the Commission issued a formal investigation order pursuant to s. 142 of the Securities Act, R.S.B.C. 1996, c. 418. Abtar Sidhu passed away on March 21, 2021. On May 26, 2021, the Commission issued a formal Notice of Hearing naming Geoffrey Sidhu and Bracetek as respondents, alleging that the respondents defrauded a BC investor when she invested $1.75 million in Bracetek, that Bracetek's true financial condition was not disclosed — including that it had less than $100 in the bank, had no revenues, had never paid its licensing fees, and owed over $300,000 in additional expenses — and that Bracetek used over $1 million of the investment for undisclosed purposes. On September 6, 2022, Geoffrey Sidhu entered into a Settlement Agreement with the Commission, admitting that Bracetek improperly issued $1.75 million in securities without filing a prospectus when a prospectus exemption was not available. He agreed to pay the Commission $900,000 as a disgorgement of funds received from Bracetek, and a further $50,000 fine. The Commission subsequently paid the $900,000 plus interest to McKay by way of an order dated November 8, 2023. On March 8, 2023, the Commission issued a decision finding that Bracetek had issued $1.75 million in securities in violation of s. 61 of the Act. The Commission also ordered Bracetek to pay $850,000 plus an administrative penalty of $50,000. A portion of that amount — $178,749.82 — was later recovered from a Ms. Slonski, Abtar Sidhu's former girlfriend, and by order dated September 16, 2024, the Commission directed those funds payable to McKay.

Relevant procedural background

From the time the Notice of Civil Claim was filed on December 11, 2017, until the Commission's March 8, 2023 decision, minimal steps were taken by McKay to advance the civil proceeding, apart from the production of lists of documents and delivery of a notice to admit. Following that decision, on July 7, 2023, McKay delivered a notice of intention to proceed. On October 17, 2023, she applied for and obtained an interim ex parte Mareva injunction against Geoffrey Sidhu, which was subsequently set aside by Justice Kent in reasons released on January 23, 2024 (indexed at 2024 BCSC 102). McKay filed a notice of appeal from Justice Kent's order but did not proceed with it. On December 4, 2024, counsel for Geoffrey Sidhu advised McKay of his intention to apply for dismissal of the action for want of prosecution. The application was ultimately heard on March 16–17, 2026.

Court's reasoning and analysis

The court applied the revised three-part test established in Giacomini, which asks: (1) whether the delay is inordinate; (2) whether the delay is inexcusable; and (3) if both are answered affirmatively, whether it is in the interests of justice for the action to continue. On the first question, Chief Justice Skolrood found that the delay was inordinate. The Notice of Civil Claim was filed on December 11, 2017, and over seven years elapsed with minimal steps taken up to the standstill agreement effective April 3, 2025. The court noted that where claims of fraud or allegations going to a defendant's reputation are involved, plaintiffs are expected to act with dispatch.

On the second question, the court considered whether McKay's decision to await the outcome of the Commission process constituted a credible excuse. Geoffrey Sidhu argued that no direct evidence from McKay explained the delay and that the Commission proceedings were distinguishable. The court acknowledged the absence of direct evidence from McKay but found that, in circumstances involving a parallel regulatory process, reasons for delay may be inferred from the evidence. The court distinguished Lamarche v. British Columbia (Securities Commission), 2024 BCSC 1137, finding it inapplicable because the Commission was not a party to McKay's civil action and the relief sought did not seek to undermine the Commission's process. Instead, the court found the reasoning in Tundra Helicopters Ltd. v. Allison Gas Turbine et. al., 2002 BCCA 145, applicable: it was not unreasonable for McKay to await the outcome of the Commission proceedings given the significant factual overlap between the two processes and the extensive evidentiary record the Commission compiled. The court also found that Geoffrey Sidhu had acquiesced in the delay — having been aware since July 2018 that McKay intended to wait for the Commission process to conclude, yet taking no steps to push the litigation forward. The court further noted that McKay benefitted materially from the Commission process through recovery of the $900,000 disgorgement plus interest, and the additional $178,749.82 from Ms. Slonski, and that Geoffrey Sidhu similarly stood to benefit through a reduction of any damages for which he might be found liable.

Ruling and overall outcome

Having found the delay inordinate but excusable, Chief Justice Skolrood held that it was unnecessary to proceed to the third stage of the Giacomini test. Geoffrey Sidhu's application to dismiss the action for want of prosecution was dismissed, with costs of the application in the cause. McKay, as the successful party on this application, preserved her right to continue the civil action. The parties were directed to schedule a case planning conference through Supreme Court Scheduling within 30 days of the date of the reasons to set a schedule for all remaining pre-trial steps. No monetary award was ordered in connection with this application; the financial amounts referenced in the judgment — including the $900,000 plus interest and the $178,749.82 — relate to prior Commission orders, not to any award made by the court in this proceeding.