How have courts in Canada dealt with a claim for delay in determining whether or not to dismiss the claim for wrongful death due to the long delay?

Fiala v. Bellingham, 2005 MBQB 147, [2005] M.J. No. 259, (upheld 2005 MBCA 143, [2005] M.J. No. 512), involved a claim for negligence by the widow of a man who had committed suicide while in police custody. Jewers J. dismissed the claim for delay on the basis of the inherent prejudice related to the long delay (the incident had occurred almost 12 years before the hearing and involved a period of some six years of inaction by the plaintiff, examinations for discovery had not been held and the case was “not anywhere near ready for trial”) where the case depended “utterly on the recollection and credibility of the witnesses”.

In Voulgaris v. ScotiaMcleod Inc., 2006 MBQB 162, [2006] M.J. No 278 (affirmed 2007 MBCA 37, [2007] M.J. No. 88) the court dismissed an action for delay on the basis of inherent and actual prejudice. The action involved two claims which had been consolidated. The plaintiff had sued her stockbrokers for mishandling her account. The plaintiff took no active steps in the litigation for a period of six years, and the claims involved events which occurred twelve years before the hearing. The actual prejudice was serious as one of the defendants in one claim who was also a witness in the other, and whose evidence was crucial, had died. Jewers J. noted that the defendants would be at a serious disadvantage without his viva voce evidence at trial.