What is the test for a finding that there has been inordinate and unjustified delay in terminating an action?
British Columbia, Canada
The following excerpt is from Bradshaw v. Corp. of the District of North Cowichan & the City of Duncan et al, 2004 BCSC 1435 (CanLII):
In Busse v. Robinson Morelli Chertkow, Mr. Justice Goldie wrote this in respect of the issue arising from a finding that there has been inordinate and unjustified delay: When the correct test is applied the concerns expressed by Mr. Justice Lambert are subsumed in the question the chambers judge must answer at the end of the day: has the plaintiff established on a balance of probabilities that the defendant has not suffered prejudice or that other circumstances would make it unjust to terminate the action? If the answer to this question is “no”, judgment must go in favour of the defendant. If the answer is “yes”, the application must be dismissed. In some circumstances it may be appropriate to make this order without prejudice to the right of the defendant to make another application.
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