What is the test for establishing prejudice in a motion for damages against a defendant?

The third criterion for establishing prejudice was addressed in Busse v. Robinson Morelli Chertkow, 1999 BCCA 313, 63 B.C.L.R. (3d) 174. Goldie J.A., for the court, concluded that once the defendant had established the delay complained of was inordinate and inexcusable, a rebuttable presumption of prejudice arises and the onus then falls on the plaintiff to establish, on a balance of probabilities, that the defendants have not suffered prejudice.

This test was later refined in Tundra where Esson J.A., for the court, stated at ¶35 to 37: I also regard it as error in principle to dispose of the issue of prejudice by asking whether the plaintiffs had rebutted ‘the presumption of prejudice that arises in the circumstances’ and by going on to answer that question in the negative. The “presumption of prejudice” is not a presumption of law. It can be termed a presumption of fact but only in the sense, as it is put in Sopinka and Lederman “The Law of Evidence in Civil Cases”, 1974 at p. 378: The term “presumption of fact” is used in many instances in which it is desired merely to shift the secondary burden to a particular party. When used in this sense, it means that the facts are such that a certain inference should, but need not, be logically drawn. It is in that sense that the word “presumption” is employed in Busse v. Robinson Morelli Chertkow, supra. In considering whether the presumption of prejudice has any application in a particular case, the question properly to be asked, as stated by Goldie J.A. in para. 27 of Busse, is: … 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? In considering that question it may be misleading to approach it by asking whether the plaintiff offered evidence on the point. In most cases, it will only be the defendant who is in a position to offer evidence as to the existence of specific prejudice – as two of the defendants attempted to do in this case. The plaintiff often will be able only to point to the overall circumstances, including the absence of any evidence from the defendant of specific prejudice, as establishing on the balance of probabilities that serious prejudice has not been suffered. In this case, much of the evidence which tends to prove absence of prejudice was put in the record by those defendants who sought to establish that the case against them is a weak one. It matters not who puts forward the evidence. The question remains whether, on a balance of probabilities, absence of prejudice has been established. In considering that, it must be borne in mind that in all contested law suits there is likely to be sufficient passage of time that memories erode to some extent, records may be lost, witnesses may disappear. It is no light matter to dismiss an action for want of prosecution. …