Facts: The first defendant underwriter brought a motion to dismiss the plaintiff’s claim for want of prosecution. The plaintiff brought the claim in 2008 for damage to its fishing vessel after the second defendant found that damages exceeded the total value of the vessel but the defendant underwriter found damages were less than the total value. Some steps and correspondence were made in the litigation and the vessel was decommissioned in 2013 at the request of the plaintiff. In 2016 the Court heard the same application by the defendant underwriter and found that the plaintiff’s delay was to that point was inordinate and inexcusable, but held the defendant insurer would not suffer prejudice and that application was dismissed. No material steps were taken in the action except for document disclosure and a notice of intention to proceed filed by the plaintiff in October 2017 until this motion in 2021.
Decision: Claim Dismissed
Held: For the defendant underwriter’s application to succeed it must be shown there was an inordinate delay, that the inordinate delay was inexcusable and the defendants were seriously prejudiced by the delay. The Court found the plaintiff did little to advance the claim since the defendant underwriter’s first application to dismiss and found that the 13-year delay was inordinate. The Court then turned to whether the delay was inexcusable and held it was, dismissing the plaintiff’s claim that the delay was strategic as it was pursuing a second, unrelated claim that it wished to have determined prior to the current action. Lastly, the Court held the defendants had been prejudiced finding the second defendant’s witness was no longer employed by the defendant and had no recollection of meeting the plaintiff in 2005, and inferred it was on the basis of extremely lengthy delay of 13 years.