Executive Summary: Key Legal and Evidentiary Issues

• The court considered a motion to dismiss for want of prosecution due to over six years of litigation delay.

• Plaintiff claimed loss under an insurance policy after a violent theft of high-value sculptures but faced denial based on a policy warranty.

• Defendants argued the delay impaired their ability to mount a defense, citing faded memories and lost evidence.

• Plaintiff's excuses for delay, including health, financial hardship, and misguided legal strategy, were only partially accepted.

• While the delay was deemed inordinate and inexcusable, the court found insufficient prejudice or misconduct by defendants to warrant dismissal.

• The balance of interests narrowly favored letting the case proceed to trial despite systemic concerns over delay.

Facts and outcome of the case

Background of the dispute

The plaintiff, Forgotten Treasures International Inc., operated a treasure hunt to raise funds for cancer research. As part of this event, it offered two highly valuable sculptures—one gold and one silver—as prizes. On May 29, 2016, both sculptures were allegedly stolen from the plaintiff’s principal, Ron Shore, during a violent robbery. Shore claimed serious injuries from the incident.

At the time of the theft, the sculptures were covered under an insurance policy issued by Lloyd’s Underwriters and Endeavour Insurance Services Limited. The plaintiff filed a proof of loss in August 2016, but Lloyd’s denied coverage, citing breach of the “Two Person Accompanying Warranty” (TPAW), a condition requiring the insured items to be in the close custody of two individuals. The plaintiff maintained that an associate, Ms. Tanya Merx, was present during the robbery and therefore the TPAW was satisfied.

In addition to claims against Lloyd’s, the plaintiff sued its insurance brokers—HUB International and an individual broker, Mark Loewen—alleging that if the policy did not cover the loss, then HUB’s negligence or breach of duty caused the resulting damages.

Procedural history and delay

The plaintiff filed its notice of civil claim in May 2018, nearly two years after the loss. The litigation quickly became entangled in procedural complications. The plaintiff’s counsel sought default judgment against Lloyd’s while Lloyd’s was preparing an application for particulars, leading to a contested motion. Default judgment was ultimately set aside in April 2019, and the plaintiff’s appeal of that decision was dismissed in 2020.

From that point forward, the plaintiff took minimal steps in the litigation. Only sporadic actions—such as filing an amended notice of claim or serving a list of documents—occurred over the next several years. Meanwhile, the defendants did not take steps to compel progress, such as scheduling discoveries or seeking trial dates.

In 2024, the defendants finally applied to dismiss the action for want of prosecution, arguing that the plaintiff had delayed the matter in an inordinate and inexcusable manner.

Outcome and reasoning

Despite the serious procedural delay, the court declined to dismiss the claim. It acknowledged that while the defendants did suffer some prejudice due to faded memories and lack of evidence preservation, this prejudice was not severe enough to deny the plaintiff a trial on the merits. The court also noted that the defendants had taken no proactive steps to advance the litigation or compel the plaintiff to act.

Ultimately, the court concluded that it was a “close call,” but the interests of justice—especially the principle that matters should be resolved on their merits—favored letting the case proceed. The applications to dismiss were dismissed. The court reserved the matter of costs for potential further submissions.