HUB International Canada West ULC v. Forgotten Treasures International Inc., 2026 BCCA 230
Reading time: 4 minutes (approx.)
By: Hayley Gardner
This matter arose from the denial of an insurance claim for allegedly stolen sculptures. Forgotten Treasures International Inc. had commenced an action against its insurance provider, Lloyd’s Underwriters, and its insurance broker, HUB International, in May 2018. Afterwards, the litigation was not meaningfully advanced for approximately six-and-a-half years. In December 2024, Lloyd’s and HUB each brought applications to dismiss the action for want of prosecution.
At the application hearing, the chambers judge stated that the test for dismissal of a claim for want of prosecution requires a consideration of three factors, including (1) whether the delay is inordinate, (2) whether it is inexcusable, and, if so, (3) whether it is in the interests of justice to allow the action to proceed, regardless.
The chambers judge found that the six-and-a-half year delay was inordinate, and that the first five years of the delay was inexcusable. For the last year-and-a-half, the delay was excusable because the availability of counsel for Lloyd’s had played a role in the plaintiff’s failure to advance litigation.
She then went on to assess whether it was in the interests of justice to allow the action to proceed. She determined that the prejudice to the defendants, the length of the delay, and the reasons for the delay all weighed in favour of dismissal. However, the context in which the delay occurred weighed against dismissal, because there was no evidence that the defendants had put any significant pressure on the plaintiff to advance the litigation prior to the summer of 2024.
The defendants, Lloyd’s and HUB, appealed the chambers judge’s decision, alleging that she had made a palpable and overriding factual error in finding that the defendants had not taken issue with the pace of litigation until 2024, and that she had placed undue weight on this factor. They also alleged that she had erred by failing to treat the absence of public importance in the litigation as a factor that weighed in favour of dismissal.
The defendants pointed to the fact that there had been some email exchanges in 2023, wherein counsel for Lloyd’s had questioned plaintiff’s counsel regarding the delay in advancing the claim. However, in that same exchange, counsel for Lloyd’s had also advised that they would not be available for the plaintiff’s proposed summary trial application for at least eight months.
The Court of Appeal for British Columbia found that there was no palpable and overriding error of fact. It was open to the chambers judge to conclude, after reading the 2023 correspondences, that the defendants had not meaningfully pressured the plaintiff to advance the litigation. The Court also rejected the notion that she had placed undue weight on this factor, finding instead that she had undertaken a qualitative and balanced assessment of all relevant factors.
On the issue of the absence of public importance, the defendants’ arguments were again rejected. While the Court does have the discretion to treat the presence of “genuine public importance” I the underlying litigating as a factor weighing against dismissal, the opposite is not necessarily true. Rather, if no issues of genuine public importance arise during a particular action, then the Court can conclude that this factor simply has no bearing on this analysis.
The appeal was dismissed and the chambers judge’s decision was upheld.
