Executive Summary: Key Legal and Evidentiary Issues

• The defendants sought dismissal of a decade-old employment action for want of prosecution under Rule 22-7(7) of the Supreme Court Civil Rules.
   
• Inordinate and inexcusable delay were conceded by the plaintiff, leaving the interests-of-justice analysis as the sole live issue.
   
• Serious prejudice was found where the defendant's memory had faded and certain records, including historical cell phone data and emails, were no longer available.
   
• Non-responsiveness by the plaintiff to demands for particulars and discovery follow-up compounded the defendants' inability to know the case against them.
   
• No excuse was offered for the delay despite repeated warnings from defence counsel that a dismissal application was being contemplated.
   
• Justice LeBlanc concluded that the balance of factors favoured striking the claim rather than allowing it to proceed.

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Facts of the case

Vernie McDougall worked for Walco Industries Ltd. from roughly May 2014 to March 2015, resigning effective March 22, 2015. Walco commenced the action against McDougall and Venom Industrial Inc. on September 1, 2016, and amended its notice of civil claim on July 25, 2017 to seek damages for breach of employment, disgorgement of profit, an accounting and tracing of revenue tied to an alleged breach of fiduciary duty, punitive damages, interest, and costs. There was no written employment agreement; Walco's claim rests on implied oral terms.

Litigation activity was sparse. Document lists were exchanged in 2016 and 2017. Starting in late 2017, the defendants sent repeated letters (December 18, 2017, March 19, 2018, June 20, 2018, and October 12, 2018) seeking further disclosure and particulars, and asking to schedule examinations for discovery. Walco did not substantively respond until 2022. An examination for discovery, adjourned once, eventually proceeded on January 19, 2023, but was left open pending Walco's production of documents. A defendants' demand for particulars served April 13, 2022, and a March 2, 2023 request for outstanding discovery responses, both went unanswered by Walco. The file then sat dormant until April 14, 2026, when Walco sought further disclosure from the defendants; defence counsel responded that a notice of intention to proceed was required given the inactivity, which Walco served on April 15, 2026, prompting this dismissal application. Ten years after the claim was filed, the matter remained at the document disclosure stage with no trial date set.

Policy and legislative provisions at issue

The application was brought under Rule 22-7(7) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, which allows the court to dismiss a proceeding where it appears there has been want of prosecution. The governing test comes from Giacomini Consulting Canada Inc. v. The Owners, Strata Plan EPS 3173, 2023 BCCA 473, which asks first whether the delay is inordinate, second whether it is inexcusable, and, if both are answered affirmatively, third whether it is nonetheless in the interests of justice for the action to proceed. For the third question, the Court of Appeal in Giacomini adopted the non-exhaustive factors from International Capital Corporation v. Robinson Twigg & Ketilson, 2010 SKCA 48 — covering prejudice to the defendant, length and context of the delay, stage of litigation, impact on the defendant's interests, reasons for delay, counsel's role, and public interest in cases being heard on their merits — and added a further factor concerning the merits of the action itself.

Reasoning and analysis

Because inordinate and inexcusable delay were conceded, Justice LeBlanc focused on the interests-of-justice inquiry. On prejudice, the judge accepted Mr. McDougall's evidence that the passage of time had impaired his memory of operational and business details and that some records, including historical cell phone data and emails, were no longer available, citing 0690860 Manitoba Ltd. v. Country West Construction Ltd., 2009 BCCA 535 and Wiegert v. Rogers, 2019 BCCA 334 on how faded memories and lost evidence establish prejudice. The court found this prejudice sharpened by Walco's failure to respond to the defendants' demand for particulars and outstanding discovery requests, leaving the defendants unable to assess the full scope of the claim, investigate, or prepare a defence.

On the length and stage of delay, the judge held the ten-year-old action remained essentially at the pleadings-and-disclosure stage, with document production unresolved and no trial date. On impact to the defendants' interests, the court accepted that prolonged, unpursued litigation increased legal costs through repeated follow-up correspondence and imposed stress on Mr. McDougall. The judge noted the defendants bore no onus to advance the matter and had, in any event, repeatedly pressed Walco to proceed, including an October 2018 warning that a dismissal application was contemplated — undercutting any suggestion Walco was lulled into inaction. Walco offered no explanation for the delay, relying only on a general statement of intention to continue the litigation. The court distinguished Walco's reliance on HUB International Canada West ULC v. Forgotten Treasures International Inc., 2026 BCCA 230, finding the defendants there had been passive, unlike the active defendants in this case. On counsel's role, the evidence of multiple changes in Walco's counsel was inconclusive as to its effect on the delay. The dispute was found to be private in nature and not a matter of public importance, though the court noted that undue delay generally undermines public confidence in the justice system per Giacomini at para. 74. The merits of the action could not be assessed on the record.

Ruling and overall outcome

Justice LeBlanc found that the defendants' ability to defend had been compromised by the delay, and that this prejudice, combined with the unexplained length of the delay and its effect on public confidence in the justice system, favoured dismissal. The application to dismiss Walco Industries Ltd.'s claim for want of prosecution under Rule 22-7(7) was granted, with the defendants, Vernie McDougall and Venom Industrial Inc., awarded their costs of the action. The judgment does not specify a dollar figure for those costs.