In personal injury cases, including slip and fall injuries, claimants are expected to move the litigation along and to name all of the right people and companies in the lawsuit. This dismissal of slip and fall case for want of prosecution (Morice v. Toronto-Dominion Bank,2014 BCSC 380) shows that when delay causes prejudice which goes directly and profoundly to the ability of a party to participate in the lawsuit, dismissal of a personal injury lawsuit for want of prosecution can occur.
The claimant suffered a serious back injury as a result of slipping and falling on ice in the parking lot outside a bank located in a shopping mall in West Kelowna. The claimant did not report his fall or his injury to anyone at the bank or to anyone having anything to do with the management or maintenance of the Mall’s parking lot and sidewalks.
The lawyer hired for the personal injury case only named the Bank in the lawsuit and not the Shopping Mall or any other companies. Despite becoming aware that the Mall may have been responsible for the maintenance of the area the lawyer did not include them in the lawsuit in a timely manner. Having no notice of the lawsuit, the Mall’s principal destroyed all of its records relating to its management of the Shopping Mall. Those records included reports from its maintenance manager.
The Bank applied successfully to have the lawsuit dismissed for want of prosecution. As Judge Rogers explained:

[23] Rule 22‑7(7) of the Supreme Court Civil Rules provides the authority for dismissal of a proceeding for want of prosecution. Dismissal under this provision is a discretionary order. The principles that inform the exercise of that discretion were laid down in Irving v. Irving, [1982] 38 B.C.L.R. 318 (C.A.). Those principles have been affirmed from time to time. More recently, in Murrin Construction Ltd. v. All-Span Engineering and Construction Ltd., 2012 BCCA 251, the Court of Appeal confirmed that the factors to consider on an application to dismiss for want of prosecution are:

(a)      the length of the delay and whether it is inordinate;

(b)      the reasons for the inordinate delay and if it is inexcusable;

(c)      whether the delay has caused or is likely to cause serious prejudice to the applicant; and

(d)      whether the balance of justice requires dismissal of the action.

 But for the destruction of the maintenance records the judge would have allowed the claimant to add the Mall as a defendant. However, the loss of the maintenance records caused significant prejudice to the Mall’s ability to advance the only viable defense it might have to the claim. The claimant adduced no evidence to show that the Mall could somehow retrieve the lost information from some other source and therefore the prejudice was irremediable. In the judges view, the prejudice that the Mall suffered outweighed the claimant’s interest in prosecuting the claim, and the lawsuit was dismissed.
Learn more about how to help prevent this from happening by readng my short article, Slip and Fall Personal Injury Lawyer- Tips for Business Premise Claims.
Posted by Personal Injury Laywer Mr. Renn A. Holness, B.A. LL.B.

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