What is the test for dismissal for want of prosecution?

Nova Scotia, Canada


The following excerpt is from Smith v. Lord, 2013 NSCA 34 (CanLII):

Roscoe, J.A.’s recitation of the test for dismissal for want of prosecution differs slightly from the well-established and non-controversial test set out in Clarke v. Ismaily, 2002 NSCA 64: 8 Thus, to summarize, in order to succeed the onus is upon a defendant to show: first, that the plaintiff is to blame for inordinate delay; second, that the inordinate delay is inexcusable; and third, that the defendant is likely to be seriously prejudiced on account of the plaintiff's inordinate and inexcusable delay. If the defendant is successful in satisfying these three requirements, the court, before granting the application must, in exercising its discretion, go on to take into consideration the plaintiff's own position and strike a balance - in other words, do justice - between the parties.(Underlining in original)

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