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Federal Court - Dismissal for Delay. Boulachanis v. Canada
In Boulachanis v. Canada (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against an order "granting the respondent’s motion to dismiss the appellant’s action for undue delay pursuant to Rule 167 of the Federal Courts Rules":[2] Rule 167 states that:The Court may, at any time, on the motion of a party who is not in default of any requirement of these Rules, dismiss a proceeding or impose other sanctions on the ground that there has been undue delay by a plaintiff, applicant or appellant in prosecuting the proceeding.
La Cour peut, sur requête d’une partie qui n’est pas en défaut aux termes des présentes règles, rejeter l’instance ou imposer toute autre sanction au motif que la poursuite de l’instance par le demandeur ou l’appelant accuse un retard injustifié. [3] The three-prong test to be applied when exercising the discretion under Rule 167 to dismiss a proceeding for undue delay is as follows. The Court must determine whether: (1) there has been an undue delay; (2) whether the delay is excusable; and (3) whether the defendants or respondents are likely to be seriously prejudiced by the delay: Sweet Productions Inc. v. Licensing LP International S.À.R.L., 2022 FCA 111 at para. 35; Vermillion Networks Inc. v. Green Circle Ideas Inc., 2024 FC 579 at para. 17; Canada v. Smiling Spruce Farms Ltd., 2003 FC 1238, 241 F.T.R. 230 at para. 12; Ruggles v. Fording Coal Ltd. 1998 CanLII 8262 (FC), [1998] F.C.J. No.1172, 152 F.T.R. 96 at para. 3 [Ruggles]; Canada v. Aqua-Gem Investments Ltd., 1993 CanLII 2939 (FCA), [1993] 2 FC 425, [1993] F.C.J. No. 103.
[4] A central element of Rule 167 is the wide discretionary power granted to the Court to impose any type of sanction it sees fit to ensure the orderly and timely prosecution of a proceeding: Sweet Productions at paras. 39 and 45. As such, the Court must consider whether a measure less drastic than dismissal ought to be applied: Dick v. Canada, 2000 CanLII 15113 (FCA), [2000] 2 C.T.C. 277; Ruggles at para. 10; Comartin v. Marsh, 2024 FC 160 at para. 21.
[5] Discretionary orders rendered by Federal Court judges are reviewable under the appellate standard of review, meaning that questions of law are reviewable on the correctness standard whereas findings of fact and findings of mixed fact and law can only be overturned in the presence of a palpable and overriding error: Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215 at para. 79; Housen v. Nikolaisen, 2002 SCC 33 at para. 1. A palpable error is one that is obvious, whereas an overriding error is one that goes to the very core of the outcome of the case: Qualizza v. Canada, 2025 FCA 222 at para. 9. The standard of palpable and overriding error is highly deferential and is not easily met: Ibid; Western Oilfield Equipment Rentals Ltd. v. M-I L.L.C., 2021 FCA 24, at para. 11.
[6] Our Court has stated that a decision to dismiss the proceeding instead of imposing another sanction under Rule 167 is largely a question of mixed fact and law: Sweet Productions at para. 24. We find this to be true in the present case.
[7] The Federal Court identified the correct test when considering whether the appellant’s action should be dismissed and applied each limb of the test to the evidence before it. In addition, the Federal Court, as the case management judge, turned its mind to whether a sanction other than dismissal would be appropriate under the circumstances. In so doing, the Federal Court noted that the matter had been under special case management since November 2020 and the discovery of the Plaintiff had not yet been completed. The Federal Court then concluded that the alternatives to dismissal had already been exhausted without any concrete results.
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