What steps have been taken to establish that the delay in moving a case ahead has been inordinate?

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.

The third step of the approach is where the refinement of the Carey v. Twohig approach arises. It is this. If the court finds delay to have been both inordinate and inexcusable, it should not consider the issue of “serious prejudice” as a discreet question. Rather, it should move directly to the issue of whether it is in the interests of justice that the case proceed to trial notwithstanding the delay and should consider the issue of prejudice in that context. In dealing with this third and final part of the analysis, the court should have regard to all of the relevant circumstances …