How to proceed with an application to strike for want of prosecution?

The best way to proceed is by adjusting the Carey v. Twohig approach so that a finding to the effect a defendant will likely suffer serious prejudice is not a strict precondition to striking a claim. Rather, the question of prejudice should be a factor – an important one – considered when determining whether it is in the interests of justice that a claim proceed to trial notwithstanding inordinate and inexcusable delay. In other words, the approach for dealing with an application to strike for want of prosecution should involve the three steps described below.

The first step, as set out in Carey v. Twohig, is an inquiry about whether the defendant has established that the delay in moving a case ahead has been inordinate. This will involve considering the time the plaintiff has taken to get the litigation to the point where the application to strike is brought and comparing that lapse of time to what might typically be expected in a case of similar complexity. This is necessarily a matter of informed judgment grounded in the overall experience of the court and the particulars of the file in question.

The second step in the analysis, again as per Carey v. Twohig itself, is an examination of the reasons for the delay aimed at determining whether it is excusable. This inquiry will entail consideration of the nature of the claim, the diligence with which the claim has been pressed by the plaintiff, and the specific reasons offered as to why the matter has not moved more quickly. A wide variety of factors might be expected to factor into this assessment.