Michael S. Deverett

At a contested status hearing, the defendant sought dismissal of the plaintiff’s action for delay.

The action alleged breach of contract and negligence arising from the defendant’s failure to publish advertisements in telephone directories.

Applying the test from appellate authority, the court considered whether the plaintiff provided an acceptable explanation for the delay and whether the defendant would suffer non‑compensable prejudice if the action proceeded.

The court held that explanations including lack of communication from defence counsel, internal file management failures, and the absence of an external client were not reasonable explanations for over two years of inactivity.

As the plaintiff failed to provide an acceptable explanation for the litigation delay and did not fully establish absence of prejudice, the action was dismissed.

The deceased transferred his residence to his sons in trust to be used for his and his wife's maintenance if required, with the remainder to his five children.

The trustees later sold the residence and mistakenly transferred the proceeds of $205,342.63 to the deceased.

After the deceased's death, his widow (the appellant) argued the funds belonged to his estate.

The motions judge held that the transfer was a breach of trust made under a mistake of law, and that the trust was entitled to recover the funds secured by an equitable lien.

The Court of Appeal dismissed the widow's appeal, finding that the deceased knew or should have known of the breach of trust, and that his estate would be unjustly enriched if permitted to retain the funds.