Ballam Insurance Services Limited v Fundy Computer Services Ltd., 2022 NSSC 277
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By: Chloe Jardine (Articled Clerk)
Fundy Computer Services Ltd. and Atlantic Datasystems Inc. (collectively “the
Defendants”) filed a motion to dismiss an action filed by Ballam Insurance Services Limited
(“the Plaintiff”) on October 4, 2011. The Defendants provided information technology
services to the Plaintiff in 2010 and 2011, from which a dispute arose over server issues. An
Amended Notice of Action was filed by the Plaintiff on January 23, 2014, and Examination
for Discovery was held June 18-19, 2014.
The Defendants argued that the last meaningful step taken by the Plaintiff occurred on
February 17, 2016, when the Plaintiff partially fulfilled their Discovery undertakings. The
Plaintiff argues there had been further efforts made to advance the action including obtaining
an expert. Further, the Plaintiff argued that any delays were out of their control due to their
original expert changing employment in 2017, staffing changes at their legal counsel’s office,
the COVID-19 pandemic delaying the process of hiring a new expert, and the Defendants not
making the original physical server and associated software/logs available to the Plaintiff.
When considering whether to dismiss an action for delay, the Court must determine:
(1) if there was an excessive delay; (2) if this delay was excusable; (3) if this delay presents a
substantial risk of an unfair trial or prejudice against the Defendant(s), and (4) in the presence
of such a risk, what outcome is just when considering the interests of both parties.
The Court clearly stated that there was an excessive delay in this action. Discovery
had concluded eight years prior, yet undertakings had not been fulfilled. Further, no expert
report had been presented by the Plaintiff notwithstanding their subsequent expert had been
hired nearly two years prior.
When such a delay is found, the burden is on the Plaintiff to prove that this delay was
reasonably excusable. The Court found that while the delays argued by the Plaintiff likely
impacted their ability to move the action forward, the Plaintiff had not satisfied the Court/
that these factors were entirely responsible for the extensive delays occurring in this matter.
The Plaintiff could not explain why there has yet to be an expert report produced or why
nearly half of their undertakings remain unfulfilled.
Even with the finding of an excessive and inexcusable delay, the Court found there
was no risk to the fairness of a trial. The Defendant argued that “there can be no doubt that
the memories of those involved have faded.” The Court was not satisfied, as the Defendant
did not identify key witnesses impacted by the delay or how this would result in a risk of an
unfair trial or prejudice to the Plaintiff. With this finding, the Court did not need to consider
what a just outcome would be in this case.