What is the legal test for striking for want of prosecution?

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 including: (a) The prejudice the defendant will suffer in mounting its case if the matter goes to trial – … Relevant matters here would include failing memories on the part of witnesses, the disappearance or death of witnesses over the course of time and the loss or destruction of physical evidence. … (b) The length of the inexcusable delay – Obviously, the longer the unjustifiable delay, the more likely it is that letting a matter go to trial will not be appropriate. An unjustifiable delay of a few months is something quite different than an unjustifiable delay of many years. (c) The stage of the litigation – In general terms, a court should be less inclined to strike an action which is well advanced than one which is in its early stages. The interests of justice will normally weigh in favour of getting a case to trial if it has somehow stalled just short of that mark. On the other hand … an action which has never progressed beyond the pleadings stage, and in which the parties have invested little time or resources, might be easier to strike. (d) The impact of the inexcusable delay on the defendant – The court should be sensitive to the impact of claims which put in question the professional, business or personal reputation of the defendant, which put the livelihood of the defendant at risk or which involve significant or ongoing negative publicity for the defendant. … (e) The context in which the delay occurred – Defendants are generally understood to have no positive obligation to move litigation forward. Nonetheless, a court entertaining an application to strike for want of prosecution should note whether the inexcusable delay took place in the face of pressure from the defendant to move the file ahead. … (f) The reasons offered for the delay – In considering the justice of allowing a claim to move forward to trial, a court should revisit the reasons offered by the plaintiff for the delay. Not all explanations for delay which fall short of establishing an “excuse” will be the same. For example, a claim which is launched and then allowed to sit entirely dormant for years for no reason is not the same thing as a suit where a plaintiff makes progress but takes too long to make it. (g) The role of counsel in causing the delay – There is a comment in Carey v. Twohig to the effect it might be unjust to deprive a plaintiff of the chance of recovering damages in circumstances where the plaintiff himself or herself is blameless in relation to the delay and his or her lawyer is fully responsible for it. … This is a legitimate consideration when assessing the justice of allowing litigation to continue after inexcusable delay. … However, this consideration should not be overstated or given undue weight. … Plaintiffs select and instruct their counsel. If a litigant engages a lawyer and the lawyer then fails to move matters forward expeditiously, the litigant should bear the burden of his or her choice of counsel and should not expect to have that burden shifted wholly to a defendant who played no role in retaining or instructing the lawyer. … (h) The public interest – There may be a narrow category of actions in relation to which a court should think especially carefully before granting an order to strike for want of prosecution. It is not possible to describe this class of matters with great particularity but, in broad terms, it could be expected to include cases of genuine public importance. Normally, they will have implications and significance reaching beyond the specific interests of the litigants themselves. …