Ali v. Fruci et al.

[Indexed as: Ali v. Fruci]

Ontario Reports

Court of Appeal for Ontario,

Doherty, Laskin and Epstein JJ.A.

August 19, 2014

122 O.R. (3d) 517 | 2014 ONCA 596

Case Summary

Civil procedure — Dismissal for delay — Plaintiff bringing action contesting two wills on ground that testatrix lacked testamentary capacity when she made them — Motion judge dismissing action for delay after finding that five-year delay was unreasonable and inexcusable and that it prejudiced defendants' right to fair trial — Defendants' appeal allowed — Motion judge's finding of actual prejudice unreasonable in light of continuing availability of witnesses and considerable documentary evidence relating to testatrix's testamentary capacity.

In February 2008, the plaintiff commenced an action contesting two wills on the grounds that the testatrix lacked testamentary capacity and was unduly influenced when she made them. In 2013, the motion judge dismissed the action for delay after finding that the delay was both unreasonable and inexcusable and that it prejudiced the defendants' right to a fair trial. The plaintiff appealed.

Held, the appeal should be allowed.

It was open to the motion judge to find that the delay was unreasonable and unexplained. There was some presumed prejudice to the defendants. However, the delay was not so inordinate that the defendants could rely on presumed prejudice alone to show that their right to a fair trial was substantially at risk. The motion judge's finding of actual prejudice was unreasonable. At least two of the doctors who examined the testatrix were still alive, and the defendants did not file any material to show that either doctor was unable to testify. Moreover, the motion judge failed to take into account the availability of considerable documentary evidence relating to the issue of the testatrix's capacity at the time she made the challenged wills.

Cases referred to

Langenecker v. Sauvé, [2011] O.J. No. 5777, 2011 ONCA 803, 286 O.A.C. 268

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 24.01(1) (c)

APPEAL by the plaintiff from the order of Walters J. of the Superior Court of Justice dated September 24, 2013 dismissing an action for delay.

Christopher McClelland, for appellant.

Robert Budgell, for respondent Mary Fruci.

Ken Garland, for respondent David Willis. [page518]

BY THE COURT: --

A. Introduction

[1] Lorilee Ali brought this action contesting two wills made by her grand-aunt Florence Blackburn. The motion judge dismissed Ali's action for delay. She appeals from that order.

B. Background

[2] Florence Blackburn died in 2007. Between 1998 and 2003, she made three wills. In the first of these wills, she named Ali as her executrix and residual beneficiary. In the second and third of these wills, she eliminated Ali in favour of the respondents, Mary Fruci, a close friend, and David Willis, her grandnephew.

[3] In February 2008, Ali began this action claiming that Blackburn lacked testamentary capacity and was unduly influenced when she made her second and third wills. Pleadings in the action were completed by August 2008. Since then, Ali has made some efforts to obtain relevant documents, including medical records. Otherwise, she has taken no steps in the action.

[4] Last September, Fruci moved under rule 24.01(1) (c) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to dismiss Ali's action for delay. That rule permits a defendant to have an action dismissed for delay where the plaintiff has not set the action down for trial within six months after the close of pleadings. The motion judge granted the motion and dismissed the action. She concluded that the delay was both unreasonable and inexcusable, and prejudiced the respondents' right to a fair trial. In so concluding, she found both "real and presumed prejudice".

[5] In her factum on appeal, Ali submits that the motion judge erred in dismissing the action for delay because she failed to consider the "Tucker litigation order" made on consent on January 30, 2008. That order, Ali contends, sets out the procedures for this action, and those procedures differ from the usual procedures in civil litigation. Ali maintains that she has complied with the Tucker order.

[6] In oral argument, Ali focuses on the motion judge's reasons. She submits that the motion judge erred in finding that the delay was unreasonable, erred in finding that the delay was inexcusable and erred in finding real prejudice to the respondents' fair trial rights.

[7] The respondents contend that Ali did not raise the Tucker order before the motion judge, and that the motion judge applied well-established law and exercised her discretion reasonably in dismissing the action. [page519]

C. Discussion

(a) The Tucker order

[8] The Tucker order modified some of the usual rules for the conduct of a civil action -- for example, production and discovery were on request -- but it did not relieve Ali of her obligation to move the action toward trial. Thus, even we were to consider the Tucker order, it would have no bearing on the outcome of this appeal.

(b) The test

[9] This is not a case where the plaintiff intentionally delayed the action or showed a disdain for the court's processes. Thus, to have Ali's action dismissed for delay, the respondents had to meet a three-part test. On their motion, they had to show

-- the delay was inordinate or unreasonable;

-- the delay was inexcusable;

the delay gave rise to a substantial risk that a fair trial of the issues in the litigation would not be possible

See Langenecker v. Sauvé, [2011] O.J. No. 5777, 2011 ONCA 803, at para. 7.

[10] The motion judge's order dismissing this action for delay is a discretionary order. It is therefore entitled to the usual deference from an appellate court. We are not justified in interfering with the order unless the motion judge exercised her discretion unreasonably or acted on a wrong principle.

(c) Application of the test

(i) Inordinate or unreasonable delay?

[11] The length of the delay is measured from the beginning of the action to the motion to dismiss -- in this case, over five years. The motion judge found that a delay of this length was unreasonable. Although perhaps a close case in the context of this litigation, we defer to the motion judge's finding.

(ii) Inexcusable delay?

[12] The motion judge also found that the delay was inexcusable. In coming to this finding, she commented that Ali has not produced an affidavit of documents or made any effort to discover either respondent, and that she did nothing after receiving the authorizations for the release of information in March 2010. [page520]

[13] These comments are not entirely justified. As we have said, production and discovery were on request, and neither side asked for an affidavit of documents or to conduct discovery. And, after receiving the authorizations, Ali did collect some documents, which she forwarded to the respondents in October 2011.

[14] However, these were relatively minor errors in the motion judge's reasons. Her overall conclusions that Ali "has done very little to advance this action in an expeditious manner" and that "there is no cogent or reasonable explanation for this failure" are reasonably supported by the record. We especially note that Ali's affidavit contains few if any particulars of the "difficulties" she claims she encountered in advancing her claim. We thus defer to the motion judge's finding of inexcusable delay. In our view, especially the delay of over three years from the time Ali obtained the authorizations has not been adequately explained.

(iii) Fair trial rights?

[15] This third branch of the test focuses on whether a defendant's ability to put its case forward on the merits or have a fair trial is prejudiced by the delay. "Prejudice" can be of two sorts: presumed prejudice, which is inherent in a long delay; and actual prejudice to a defendant because of the delay. The motion judge found both sorts of prejudice.

[16] We accept that there is some presumed prejudice in this case and that on the record before the motion judge Ali has not rebutted that presumed prejudice. In some cases, presumed prejudice is sufficient to meet this third branch of the test for dismissal. See, for [example], Langnecker, supra. This is not one of those cases.

[17] The presumption of prejudice increases with the length of the delay. In this case, although the length of the delay was inordinate (and much of it was not adequately accounted for), this delay was not so inordinate that the respondents could rely on presumed prejudice alone to show that their right to a fair trial was substantially at risk. To deprive Ali of her day in court, of a trial on the merits, the respondents had to show that they would actually be prejudiced by the delay. The motion judge did find actual or real prejudice but in our view that finding was unreasonable and cannot stand.

[18] The fundamental issue in this litigation is the testamentary capacity of Blackburn when she made her second and third wills. As the motion judge noted, two of the professionals who [page521] might have given evidence on that issue have died -- the lawyer who took the wills died in 2009; and one of Blackburn's doctors died before she did. However, at least two of the doctors who examined Blackburn are still alive, though retired from practice. And the respondents, who bore the onus of demonstrating actual prejudice, did not file any material to show that either doctor was unable to testify.

[19] As important, there appears to be considerable documentary evidence to shed light on Blackburn's capacity at the time she made the two wills challenged in this litigation. The lawyer's files are available and a number of medical reports are available. Some of these reports were filed on the motion. One report, for example, by one of Blackburn's doctors, speaks directly to Blackburn's capacity at the time she made her second will, and references a psychiatric assessment of Blackburn at the time. In finding actual prejudice, the motion judge failed to take into account this documentary evidence. Her failure to do so undermines her finding that the respondents' right to a fair trial would actually be prejudiced by the delay.

[20] For these reasons, we conclude that the respondents did not satisfy the third branch of the test for dismissal for delay.

D. Conclusion

[21] The appeal is allowed, the motion judge's order is set aside and the respondents' motion is dismissed. It is imperative that this action now proceed promptly. If the parties cannot agree on a schedule for the next steps in the litigation, then either side may move for directions in the Superior Court.

[22] Ali is entitled to her costs of the appeal in the agreed-on amount of $8,000, inclusive of disbursements and applicable taxes. There shall be no costs of the motion before the motion judge.

Appeal allowed.

End of Document