The Obligation to Prosecute an Action Without Delay

The question of who has the primary responsibility to keep an action moving is often asked – is it the plaintiff who started it or the defendant?

Courts in Nova Scotia have recently landed on both sides of this.

Before getting to those decisions, a reference to the decision in Barbiero v. Pollack, 2024 ONCA 904, a decision we reported in the March 2025 edition of LIANSwers. In Barbiero, the Court stated:

[13]      Under the Langenecker approach, delay or the passage of time on its own cannot constitute harm or prejudice sufficient to support the dismissal of an action. Langenecker merely treats the existence of delay as giving rise to a rebuttable presumption of prejudice – that is to say, the lingering of an action in our courts for over two decades may or may not result in a harm or prejudice. According to Langenecker, it all depends.

[14]      I strongly question whether Ontario’s civil courts can achieve the culture shift demanded by the Supreme Court of Canada in Hryniak if they continue to cling to Langenecker’s lax attitude toward delay. The late Willard Z. Estey, former judge of the Supreme Court of Canada, succinctly described the social harm caused by such an attitude:

Disputes, unlike wine, do not improve by aging. Many things happen to cause a cause and to parties in a dispute by the simple passage of time, and almost none of them are good. Delay in settlement or disposal of conflicting claims is … a primary enemy of justice and peace in the community.”[2]

[15]      As well, Langenecker’s tolerant attitude toward delay is out of step with a key element of the general principle for civil litigation set out in r. 1.04(1) of the Rules of Civil Procedure, namely to secure the “most expeditious … determination of every civil proceeding on its merits”. A litigation culture based on Langenecker focuses more on justifying delay than on achieving the most expeditious determination of civil proceedings. To the extent that Langenecker denies that the passage of time, on its own, can constitute sufficient prejudice to dismiss an action for delay and not simply a rebuttable presumption of prejudice, it should not be followed.

Which brings us to the two recent Nova Scotia decisions.

First there is Distinguished Properties Inc. v. First Mutual Properties Ltd., 2025 NSSC 387. The issue here was whether the Court should discharge a Certificate of Lis Pendens (CLP), as the plaintiff had failed to take any steps to advance the litigation in 26 months. In concluding that the CLP should be discharged the Court stated:

[18]         As stated by the Honourable Justice Robert Wright in Dempsey, relying on Anger and Honsburger, once a CLP is filed, it serves as notice to everyone that the title to a particular piece of land is being questioned in a legal proceeding and warns against dealing with the defendant with respect to that land until the title dispute is determined: Dempsey at para.14. Its practical effect is to act as an injunction so as to prevent the defendant from dealing with the land until the lawsuit is determined: ibid.

…

[21]         Based on the above authorities, I conclude that a claimant has an implied duty to prosecute their claim without delay where they have registered a CLP against the property in dispute.

…

[23]         I find that Distinguished Properties has failed to promptly prosecute the action.

[24]         A 26-month lapse during which Distinguished Properties did nothing to advance the action, when the only steps taken by it were to file the action and its defence to the counterclaim, is inordinate.

[25]         Distinguished Properties’ inordinate delay in prosecuting the action is inexcusable. The total lack of communication by Distinguished Properties during the 26-month lapse is inexcusable. I agree with the submission of counsel for First Mutual that, like Mr. MacIntyre, many litigants before this court are busy. This does not excuse such an inordinate delay. The steps that Distinguished Properties was expected to take are “elementary,” in the words of Norton J. in JPA at para.10, and are not onerous: some form of communication, the exchange of Affidavits Disclosing Documents and the scheduling of discoveries. Moreover, Mr. MacIntyre’s proffered excuse does not explain the six-month lapse in time between January and June of 2025. I find that the only reason Distinguished Properties eventually filed its Affidavit Disclosing Documents was because First Mutual moved to discharge the CLP.

Contrast this to Christakos v. Adlington, 2025 NSSC 351 where the Court stated:

[38]         I am to presume that an inordinate delay is inexcusable unless and until the Plaintiffs have provided a credible excuse to rebut that inference (see for example, Clarke, para. 7). No one factor, in and of itself, is definitive or conclusive. In some circumstances a change of counsel has been held to explain delay, and of course, there was the impact of the COVID-19 shutdown during the first portion of the period which I have found constitutes the delay.

[39]         There is also the fact that the Defendants, themselves, did nothing during that period to move the matter along. Obviously, they do not bear an onus or obligation to advance the Plaintiffs’ litigation, as some authorities have pointed out (see, for example, Creswell, at para. 11). However, complete inactivity on the part of the Defendants may also be considered when questions of fault and/or whether the delay is excusable are examined.

[40]         To put a finer point upon it, even though defendants are not obligated to maintain an identifiable quantum of momentum in litigation, the steps taken or not taken by defendants may be relevant to a determination as to whether they effectively acquiesced in the pace at which the litigation was being conducted.

In Distinguished Properties, the Court seems to put the responsibility to move the matter along on the plaintiff.

In Christakos, the Court seems to take the approach that the defendants also have some responsibility to keep the matter active, though the Court did qualify this to some extent by noting that defendants “…are not obligated to maintain an identifiable quantum of movement…”

So, when it comes to responsibility for delay, the court in Christakos seems to say – contrary to what the Ontario Court in Barbeiro said should no longer be the law – that “…it all depends…”.  Conversely, the Court in Distinguished Properties seems to say, at least with respect to a CLP or lien, that the responsibility for delay should rest with the plaintiff because, as stated in Barbiero, “…passage of time, on its own, can constitute sufficient prejudice to dismiss an action for delay…”, in keeping with what that Court states should perhaps be the law in the broader sense.

Either way, it appears the Courts are signalling there is a greater risk of an action – and particularly a CLP or lien – being dismissed for delay if the delay is attributable to the plaintiff not diligently pursuing their matter. If a defendant has taken minimal steps to prod the plaintiff to move the proceeding along, the odds of a dismissal for delay increase.