Court File and Parties
COURT FILE NO.: CV-12-463720 MOTION HEARD: 20180601 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Edward Sobie, Executor and Estate Trustee of the Estate of Stanley Sobie, Deceased, Plaintiff AND: Frederick Paul Sobie, 2032101 Ontario Inc. o/a Titan Construction Group and Steven Johns also known as Stephano Johns, Defendants
BEFORE: Master Jolley
COUNSEL: Martin Goose, Counsel for the Moving Party Plaintiff A. Dychtenberg and R. Levitsky, Counsel for the Responding Party Defendant Frederick Sobie B. Greenberg, Counsel for the Responding Party Defendants 2032101 Ontario Inc. o/a Titan Construction Group and Steven Johns
HEARD: 1 June 2018
Reasons for Decision
Overview
[1] The plaintiff brings this motion for a status hearing order for a timetable and an extension of time to set the action down for trial. He also seeks an order reconstituting the action nunc pro tunc to name Edward Stanley Sobie and Kimberley Jane Wright as estate trustees of the Estate of Stanley Sobie, deceased. He then seeks an order that the action continue in the name of Edward Stanley Sobie personally and that the title of proceedings in all documents reflect that change. Lastly, he asks the court to set a timetable and to establish deadlines for the parties for the completion of all the remaining steps necessary to have the action set down for trial.
[2] The defendants oppose the motion. They each bring their own motion seeking an order dismissing this action for delay, for failure to properly constitute the action within a reasonable time and for failure to obtain an order to continue within a reasonable time.
Material Facts
[3] Edward Sobie (“Ed”) owns property located at 16 Norris Crescent, Toronto (“16 Norris”). His cousin Frederick Sobie (“Fred”) owns the next door property located at 14 Norris (“14 Norris”). Fred has owned 14 Norris since 1980.
[4] Ed and Fred are cousins. This is not Ed’s first piece of litigation against Fred. Fred describes Ed as suing him “for sport”. Fred has deposed that Ed has started a number of small claims court and Superior Court actions against him and his family. In one action commenced in November 2008, Ed sued Fred and Fred’s wife and daughter alleging among other things, breach of trust, fraudulent and negligent misrepresentation, breach of fiduciary duty, deceit, conspiracy and misappropriation of funds. Ultimately Fred offered to settle on the basis that Ed pay him $25,000, which Ed accepted. Fred deposes that his legal fees to defend that action were $109,000.
[5] Fred has obtained a peace bond against Ed, stating that Ed tried to run him over with Ed’s truck at one point.
[6] Ed’s father Stanley Sobie (“Stanley”) bought 16 Norris in 1956. Stanley died in November 2009. In his will, Stanley appointed his daughter Kimberley Wright (“Kimberley”) and Ed as executors of his estate. A Certificate of Appointment of Estate Trustee with a Will was issued in respect of Stanley’s estate on 19 February 2010, two years prior to this action being commenced, appointing both Ed and Kimberley as executors. Under Stanley’s will, Ed inherited 16 Norris.
[7] In September 2012, more than 5½ years ago, Ed commenced this action against Fred and against Titan Construction and Steven Johns (together, “Titan”). Ed claims an easement over a portion of the laneway at 14 Norris based on uninterrupted use of that land for a period in excess of 20 years. He also claims adverse possession of a portion of the yard at 14 Norris over which his shed allegedly extends and alleges that that use has been uninterrupted for in excess of 10 years. As against Titan, Ed alleges that some work it did on 14 Norris caused flooding on his 16 Norris property.
[8] Other than the pleadings, nothing substantive has happened in this action since 2012. After many years and many requests from the defendants, Ed delivered his affidavit of documents in 2015. Titan delivered its affidavit of documents in January 2016. Fred delivered his affidavit of documents in July 2017.
[9] As more particularly noted below, it took years and multiple emails to agree on dates for examinations for discovery. In the vast majority of instances, any arrangements attempted were made by Fred and not by Ed. Examinations for discovery were finally set for July 2017, almost five years after the action was commenced.
[10] At that point, Fred started to make inquiries about the will of Stanley, given this action was commenced by Ed in his capacity as executor of Stanley. Fred learned that Ed was not the sole executor of the will. Kimberley, the co-executor, had not been named as a plaintiff or added as a defendant.
[11] Fred also discovered that on 14 March 2016, four years after this litigation was commenced, and seven years after Stanley’s death, 16 Norris was transferred first to the executors Ed and Kimberley and, that same day, from Ed and Kimberley to Ed personally. No transmission of interest had ever been obtained. With this new information, Fred canceled the examinations for discovery that had been scheduled.
[12] As of this date, and in this simplified rules action, discoveries have not been completed. There has been no mediation. Until Ed served his amended notice of motion on 30 January 2018, there was no motion for an order to continue and no motion to deal with the failure to name Kimberley as an executor.
[13] This motion for a status hearing was brought on 14 September 2017, four days before the five year period to set the action down would have expired.
Issue 1: Should the Action be Dismissed for Delay
[14] The plaintiff brings this motion under Rule 48.14 of the Rules of Civil Procedure for an extension and the defendants move under the same Rule for an order that the action be dismissed for delay. The defendants also rely on Rule 48.14 for their motions to dismiss. Rule 48.14 provides as follows:
(1) Unless the court orders otherwise, the registrar shall dismiss an action for delay in either of the following circumstances, subject to subrules (4) to (8):
- The action has not been set down for trial or terminated by any means by the later of the fifth anniversary of the commencement of the action and January 1, 2017.
(5) If the parties do not consent to a timetable under subrule (4), any party may, before the expiry of the applicable period referred to in subrule (1), bring a motion for a status hearing.
(6) For the purposes of subrule (5), the hearing of the motion shall be convened as a status hearing.
(7) At a status hearing, the plaintiff shall show cause why the action should not be dismissed for delay, and the court may,
(a) dismiss the action for delay; or
(b) if the court is satisfied that the action should proceed,
(i) set deadlines for the completion of the remaining steps necessary to have the action set down for trial or restored to a trial list, as the case may be, and order that it be set down for trial or restored to a trial list within a specified time,
(ii) adjourn the status hearing on such terms as are just,
(iii) if Rule 77 may apply to the action, assign the action for case management under that Rule, subject to the direction of the regional senior judge, or
(iv) make such other order as is just.
[15] While the defendants’ facta and cases also reference Rule 24.01, that test for dismissal is different than the test under Rule 48.14. Were the defendants to have proceeded under Rule 24.01, they would have borne the onus of proving that the delay was inordinate, inexcusable and such that it gave rise to a substantial risk that a fair trial of the issues in the litigation would not be possible because of the delay. Under Rule 48.14 the onus is on the plaintiff to demonstrate why the action should not be dismissed for delay. The plaintiff must demonstrate that there is an acceptable explanation for the delay and establish that, if the action were allowed to proceed, the defendant would suffer no non-compensable prejudice ( Faris v. Eftimovski, 2013 ONCA 360 ). There the court noted that when a motion is brought until Rule 48, placing the onus on the plaintiff to show cause why the action should not be dismissed is fair considering that the purpose of the rule is to enable the court to control the pace of litigation and ensure that disputes are resolved in a timely manner.
[16] The court noted that, when exercising its discretion under Rule 48.14(13) or under Rule 24.01 to dismiss an action for delay, it must balance the plaintiff’s interest in having a hearing on the merits against the defendant’s interest in having the matter resolved in an expedient and time-efficient manner. However, it went on to acknowledge at paragraph 40 that:
“The onus placed on the plaintiff under rule 48.14(13) therefore, is mandated not only by the plain wording of the rule but also by the greater severity of the plaintiff’s delinquency in pursuing its claim. In other words, at this juncture, the emphasis on the objectives expressed in rule 1.04(1) to ‘secure the just, most expeditious and least expensive determination of every civil proceeding on its merits’ must necessarily shift toward ensuring that disputes be resolved expeditiously and in a time-efficient manner.”
[17] With that background, I turn to the chronology of events.
Chronology of Key Dates
(a) 2012-2013
[18] The action was commenced on 18 September 2012 and pleadings were closed in June 2013 after Fred delivered his statement of defence.
[19] In June 2013 plaintiff’s counsel advised that he hoped for an early resolution. Fred’s counsel expressed an interest in hearing him out but nothing was heard in response and that exchanged ended. There were no further steps taken to move this matter forward for the remainder of 2013.
(b) 2014
[20] Ten months passed from the June 2013 exchange between counsel without any movement on the file until, in April 2014, Fred’s counsel emailed to advise that the parties should get on with the litigation absent some proposal from Ed. There was no proposal from Ed, other than an indication in June 2014 that it would be a good time to discuss settlement.
[21] Thereafter the defendant Fred started the process of arranging examinations for discovery. In response to the first overture in June 2014, Ed’s lawyer advised that he had not heard from his client in over a year and would have to meet him and obtain instructions before agreeing to any date.
[22] Counsel for Titan had not been contacted at all between June 2013 when he delivered his client’s defence to crossclaim and June 2014 when he was asked for discovery dates. There the matter stood until mid July 2014, at which point, Fred’s lawyer wrote as follows:
“As you know, our client has been attempting to move this action forward. I have asked you for your client’s Affidavit of Documents, without response. My assistant contacted your office in an effort to arrange examinations for discovery and was told that you were planning to meet with your client first to obtain instructions and she would ‘get back to us’. She has not done that. Unless you do something to move this action forward within the next 30 days, please expect that we will deliver motion material to ask that the matter be dismissed for delay.”
[23] As of July 2014, the plaintiff was on notice of Fred’s intention to seek a dismissal order in the event the matter did not move forward on a timely basis.
[24] In October 2014 counsels’ assistants spoke intermittently about discovery dates but nothing was set. On 1 November 2014, the action being more than two years old at this stage, Fred’s lawyer sent a further email:
“Louis, this file seems to be in a permanent holding pattern at your end. We have tried to secure an Affidavit of Documents from you and discovery dates. Is your client serious about proceeding? If he is, could you please do something, anything, to please move the action forward?”
[25] On 5 November 2014 Ed’s lawyer confirmed that he had spoken to his client “and we are to proceed with our case involving the mutual driveway”.
[26] In December 2014, after follow up from the defendant, the assistants confirmed examination dates for October 28, 29 and 30, 2015 subject to plaintiff’s counsel’s assistant confirming those dates with Titan’s lawyer. It was then noted by Fred that only one day of examination was needed as this was a simplified rules matter.
[27] By the end of 2014, more than two years into the action, the action had not proceeded any further. There were no affidavits of documents delivered and no discoveries had taken place. Proposed discovery dates were ten months away.
(c) 2015
[28] There was nothing further from December 2014 until April 2015 when Fred’s lawyer wrote to Ed’s lawyer requesting his affidavit of documents and advising that only one date of three October 2015 dates that had been set aside should be used. Titan’s lawyer wrote the following day expressing his surprise that dates had been chosen as he had not been consulted and was not available on one of the three chosen dates. Further he did not have Ed’s affidavit of documents. Two dates remained available to complete the one day of examinations.
[29] Nothing was heard from Ed’s lawyer in response. In July 2015, Fred’s lawyer wrote noting that he had not had a response to his 5 April 2015 letter and advising that he was no longer holding the October dates. He closed his letter: “Perhaps you could please let us know whether your client has any serious intention of proceeding with this action.”
[30] In August 2015 Ed’s lawyer wrote to apologize for the delay in responding, stating, “we experienced issues in obtaining our client’s instructions as we have now been advised was due to his involvement with personal, family matters.” Fred’s lawyer advised that they would revisit discovery dates once they had Ed’s affidavit of documents. That put an end to the 2015 tentative examinations for discovery.
[31] In November 2015 Fred’s lawyer wrote to Ed’s lawyer as follows:
“Your client obviously has no intention of pursuing this action and accordingly, we will be arranging a motion to dismiss for delay. If your client’s intentions are otherwise, we would ask that you deliver his sworn Affidavit of Documents no later than 5:00 p.m. on Monday, November 9, 2015, following which our motion material will follow without further notice.”
[32] That did prompt Ed to deliver his affidavit of documents on 6 November 2015, three years into the action. On 8 December 2015 Ed’s lawyer asked Fred’s lawyer for available discovery dates and June and July 2016 dates were provided in a responding email of 15 December 2015. There was no response to those dates from Ed in 2015.
[33] By the end of 2015, three years into the action, Ed had delivered his affidavit of documents. The defendants had not and discoveries had not taken place.
(d) 2016
[34] In early January 2016 Ed’s lawyer’s office responded to the proposed June and July discovery dates by simply saying that they would check with Titan’s lawyer and advise. There was nothing heard for the next seven months, a month after the July dates that had been proposed in December 2015 had gone by.
[35] In August 2016 Ed’s lawyer proposed discovery dates for November, December or January. A range of dates was agreed to and on 20 September 2016 Fred’s lawyer wrote asking all parties to confirm February 16 so it could be booked. There was no response in 2016.
[36] By the end of 2016, more than four years into the action, discoveries had not taken place. Ed had not confirmed the February 2016 proposed date so there were no examinations scheduled.
(e) 2017
[37] On 7 February 2017, Ed’s lawyer wrote requesting dates for examinations for discovery between March and May 2017 and a date for mediation in May, June or July 2017. Fred’s lawyer responded the next day and advised that he had no availability then and proposed examinations for discovery be held in July, which were agreed.
[38] Ed’s lawyer then proposed a mediation for September. Fred’s lawyer reminded Ed’s lawyer that he had given him late fall availability in February but had not heard back and those dates had been taken. A mediation date of 31 August 2017 was ultimately agreed to but Fred’s lawyer advised that if he were called to trial he would not be able to attend. He ended his April 4 letter stating, “From all appearances, your client is not serious about proceeding with this action and please do not be surprised if we object strenuously to any effort to extend the 5 year dismissal date.”
[39] As it turned out, neither the examinations for discovery nor the mediation proceeded.
[40] In early July 2017 the defendants made inquiries about the ownership of 16 Norris. They asked Ed’s lawyer for excerpts of Stanley’s will and for a copy of the Certificate of Appointment of Estate Trustee to confirm that Ed was the appropriate and proper representative. Ed’s lawyer did not respond.
[41] Titan’s lawyer then did a title search of 16 Norris. He discovered that almost 16 months earlier, on 14 March 2016, 16 Norris had been transferred from Stanley to Kimberley and Ed and then from Kimberley and Ed to Ed alone.
[42] Kimberley was an estate trustee along with Ed. She had not been named as a plaintiff or a defendant in the action and the defendants took the position that the action was stayed from the outset as a result. Further 16 Norris was no longer owned by Ed as trustee. Upon discovering these issues, Fred’s lawyer advised Ed’s lawyer on 10 July 2017 that the defendants would not be proceeding with the examinations for discovery without an explanation.
[43] Ed’s lawyer did respond to advise that the action was commenced with the consent of Kimberley. This statement is either is at odds with his later position that he understood Ed to be the sole executor and trustee when he commenced the action or something he would not have known when he started the action in 2012 as he deposed that he believed Ed to be the sole executor. The defendants advised that this information was insufficient and, in any event, they would not incur costs in an action where there may be costs against an estate that had been wound up. These issues would need to be resolved prior to any examinations for discovery taking place.
[44] A month went by without response. Fred’s lawyer followed up again on 16 August 2017. In response to that overture, Ed’s lawyer advised that same day that he had prepared a requisition for an order to continue the action under Rule 11. He also indicated that discoveries would need to be rescheduled, that he would send a proposed timetable and that, if there was no consent on the timetable, he would bring a status hearing motion.
[45] No timetable was delivered. The requisition was not filed with the court until three weeks later, on 7 September 2017 and was rejected. The defendants advised that they would not consent to a timetable and would seek a dismissal of the action. This was consistent with the position Fred took in April 2017 that Ed should not be “surprised if we object strenuously to any effort to extend the 5 year dismissal date.”
[46] When Ed served his notice of motion on 13 September 2017, he did not seek an order to remedy the naming of the estate executors or to continue the action in the name of Ed personally. He sought only a status hearing order for a timetable and for an extended deadline to set the action down for trial.
[47] The motion record was delivered on 24 October 2017 and no other relief was sought. The motion was then adjourned to provide time for preparation of responding materials and facta.
[48] It was not until 30 January 2018 and after delivery of the defendants’ cross motions that Ed served an amended notice of motion seeking an order reconstituting the action nunc pro tunc to name Ed and Kimberley, estate trustees, as plaintiffs and an order, by reason of transmission of interest to Ed and amending the title of proceedings to reflect Ed personally as the sole plaintiff.
Application of the Test on a Status Hearing Motion
[49] As noted above, at a status hearing under Rule 48.14(7) Ed bears the onus of showing cause why his action should not be dismissed for delay. This is a two part test. First, he must provide an acceptable explanation for the delay in the litigation. Second, he must demonstrate that the defendants would not suffer non-compensable prejudice if the action were allowed to proceed. Both branches of the test must be satisfied.
No reasonable explanation for the delay
[50] In support of this motion, Ed’s lawyer swore an affidavit that stated: “The plaintiff has consistently made concerted efforts to move this action towards trial and to exchange productions, schedule discoveries and mediation”. This is not borne out by the evidence.
[51] Ed has not provided an acceptable explanation for his delay. While he need not explain “every single minute of delay, he must explain most of the delay and all periods of material delay” ( Madore v Metropolitan Toronto Condominium Corp. No. 1228 at paragraph 26). Reviewing the chronology above, the periods of delay are not accounted for. For significant periods of time Ed’s counsel did not have any instructions from him to proceed with his action. It is not clear whether Ed had not made up his mind whether to continue with this claim, whether he was satisfied to leave the action hanging over Fred’s head or whether he was content that it interfere, by its very existence, with Fred’s outstanding application for a variance for 14 Norris, discussed further below.
[52] Contrary to the assertions made in argument, it is not for the plaintiff to argue that the defendants were also not in a rush to move the matter forward or were equally responsible for the delay. It was not their obligation to move the matter forward and, in any event, I have found that the majority of attempts to move the matter along were at the behest of the defendants. ( Faris v. Eftimovski supra at paragraph 46 ).
[53] It appeared from the affidavit material filed that Ed was relying on some other litigation he started against Fred and Fred’s family to explain the delay, that is not a basis for not moving this action forward. It could not be accepted as a reason for the delay, as there is nothing in the material indicating how or why it interfered with Ed pursuing this action, particularly when repeatedly pressed to do so. Further, the defendants have demonstrated that the 2008 action was settled in 2014 with Ed paying Fred an amount in settlement of Fred’s costs. In any event, that action ended in September 2014 and cannot explain any of the delay from September 2014 to September 2017. On his cross-examination, Ed’s lawyer advised that the other proceedings between Ed and Fred were not being relied on as a bar to this action moving forward but were included only as historical background demonstrating prior litigation between the cousins.
[54] The plaintiff has been on notice for some years of the defendants’ intention to bring a motion to dismiss for delay if he did not move his matter forward. It cannot be said that the defendants acquiesced in this delay.
[55] The absence of any or any acceptable explanation for the years of delay is sufficient for me to conclude that Ed has failed to show cause why his action ought not to be dismissed for delay. While this is sufficient to dispose of Ed’s action, I have considered the second branch of the test, that of prejudice.
Lack of prejudice to the defendants not established
[56] The onus is on Ed to establish that the defendants would suffer no non-compensable prejudice if his action were permitted to proceed to trial at this stage. The onus is not on the defendants to prove case-specific prejudice resulting from the delay. ( Woodheath Developments Ltd. v. Goldman , 2001 O.J. No. 4018 ONSC, at paragraph 28).
[57] Ed claims a prescriptive easement and adverse possession over portions of Fred’s property. To succeed, Ed would have to demonstrate, as pleaded in his statement of claim that:
For as long as the Plaintiff has resided at the 16 Norris Crescent Property [March 1990], and for decades prior thereto, the Plaintiff and tenants of the 16 Norris Crescent Property, along with their guests, visitors, and other invitees, have used the walkway/laneway as a pedestrian access route between the respective buildings to come and go from the 16 Norris Crescent Property and to travel from Norris Crescent to Douglas Boulevard, and vice versa.
In addition, for the said period of time, the Plaintiff and the tenants at the 16 Norris Crescent Property, along with their guests, visitors, and other invitees, have used a portion of the walkway/laneway from the southerly boundary of the 16 Norris Crescent Property and north towards the respective buildings a distance of approximately 10 metres to park, egress, and enter their motor vehicles.
The Plaintiff obtained a survey in January 2011 delineating the location of the of the [sic] original property lines of the subject lands.
At that time, it was discovered that approximately 2.5 metres of the width of the walkway/laneway was located within the easterly boundary of the 14 Norris Crescent Property and the remaining approximate 1 metre was located within the westerly boundary of the 16 Norris Crescent Property.
It was thereupon determined that, for the period of time described herein, pedestrians using the walkway/laneway as an access route from Norris Crescent to Douglas Boulevard, and vice versa, have been doing so by in fact using the 2.5 metres of the 14 Norris Crescent Property.
In addition, it was determined that the Plaintiff and tenants of the 16 Norris Crescent Property, their guests, visitors and other invitees, have been using the 2.5 metres of the 14 Norris Crescent Property to park, egress, and enter their motor vehicles in the manner and for the period of time described herein.
The Plaintiff states that the portion of the 14 Norris Crescent Property approximately 2.5 metres westerly from its easterly boundary is subject to a prescriptive easement for the aforesaid uses.
The Plaintiff states that throughout the relevant period of time described herein, the use and enjoyment of the prescriptive easement has been conspicuous, obvious and known to any observer including the owners and tenants of the 14 Norris Crescent Property, visitors and other invitees to the subject lands.
The Plaintiff states that the use of the prescriptive easement has been open and peaceful and without force or argument between owners and tenants of the subject lands.
The Plaintiff states that the use of the prescriptive easement is not subject of any consent, limited or otherwise, granted by the owners or tenants of the 14 Norris Crescent Property.
The Plaintiff states that the use of the prescriptive easement has spanned for a continuous period of greater than 20 years and had not been interrupted or disrupted in any manner prior to June 2012.
[58] In support of his adverse possession claim, Ed alleges that there has been a metal shed/building on 16 Norris before he commenced residing there in 1990. He pleads in paragraph 41 of his claim that
- The metal shed/building has been in actual possession of and used the portion of the 14 Norris Crescent Property in a manner that has been open, notorious, continuous, exclusive and inconsistent with the use of Fred Sobie or previous owners of the 14 Norris Crescent Property for an uninterrupted period in excess of ten years.
[59] Ed claims that the use has gone back more than 28 years. It may be that the evidence required would have to go back to 1994 for the adverse possession claim and 1984 for the prescriptive easement claim. Further any evidence of even a one-time use by Fred would arguably set the ten and twenty year clocks running again. Ed has led no evidence as to what witnesses he would call, what their evidence would be to demonstrate the fact and duration of this activity or that their memory is unaffected by the passing of years.
[60] Where a party must rely on evidence that is years old in order to prove his claim, the language of the Court of Appeal in Tanguay v. Brouse 2010 ONCA 73 , paragraph 2 becomes even more relevant: “As the motion judge observed, in the face of inordinate delay, a rebuttable presumption arises that the defendants are prejudiced because a substantial risk arises ‘that a fair trial might not be possible’.… There are several bases for the presumption. One recognizes that memories fade over time and another recognizes that justice delayed is justice denied. Expeditious justice is the objective. The presumption strengthens with the length of the delay.”
[61] As for Ed’s claim against Titan, Ed alleges that Titan did certain work on the walkway/laneway in September 2010 which resulted in flooding in November 2010. He also alleges that Fred is jointly liable for this flooding because he took part in the demolition, excavation and related work with Titan. Ed alleges that damage was done to the property of the tenants who resided at 16 Norris in 2010 and that the tenants were exposed to dangerous conditions among other things. Titan denies any negligence and any damage but pleads, in the alternative, that any damage sustained as due to actions taken by Ed. On this motion, Ed has not stated who those tenants are or were, that they are available, that their documents remain available and that their memories of these events more than seven years’ ago are reliable and unimpaired. He does not depose that all relevant documents have been preserved nor stated his recollection of what he did to 16 Norris, if anything, around that time.
[62] The only evidence tendered to address the issue of prejudice was an affidavit by Ed wherein he agreed to be responsible for costs of the action that had been commenced by him as executor of Stanley’s estate. However, exposure to having a costs award against an estate that had been wound up was not the only prejudice alleged by Fred and Titan.
[63] Ed has been aware since April 2014 that Fred had brought a variance application in late 2013 or early 2014 before the Committee of Adjustments to have three parking spots in the rear of 14 Norris rather than two. 14 Norris is a six-plex rental building. He was also aware that the Committee stayed Fred’s application pending determination of the land issues raised in this litigation. In fact, Ed’s counsel wrote to Fred’s counsel on 16 April 2014 stating, “I figure that your client may be willing to discuss the land issues now that he wants to complete his variance application and my client would consider lifting his opposition if we can make progress on the walkway”.
[64] Fred deposed that the Committee was seeking to dismiss his application for delay due to the boundary issue raised by Ed in this litigation. He also deposed that he has promised his tenants additional parking and a paved driveway and has been unable to deliver on that promise for the prior four years and is at risk of losing tenants as a result. He could not charge the same rent he could to the tenants he did have without being able to deliver promised parking. He was not cross-examined on his affidavit.
[65] In find that this second branch of the test relating to prejudice to the defendants also supports dismissal of the action for delay.
Issue 2: Did the plaintiff seek an order to properly constitute the action in a reasonable period of time?
[66] Rule 9 of the Rules of Civil Procedure deals with proceedings involving estates. Rule 9.01(3) provides that an executor who does not consent to be joined as a plaintiff to an action shall be made a defendant. Rule 9.03(5) provides that a proceeding by an estate shall not be treated as a nullity because it was not properly constituted, but the court may order that the proceeding be reconstituted. However, pursuant to Rule 9.03(6), no further step in a proceeding shall be taken until the action is properly constituted and, unless it is properly constituted within a reasonable time, the court may dismiss the proceeding or make such other order as is just.
[67] The defendants argue that the action has not been properly constituted since its inception in September 2012 and delivery of an amended motion to correct that in January 2018 is not a step to properly constitute the action within a reasonable time, as required by Rule 9.03(6). I agree.
[68] Stanley passed away on 6 November 2009. The Certificate of Appointment of Estate Trustee with a Will appointing Ed and Kimberley is dated 19 February 2010.
[69] Ed’s lawyer deposed that he believed Ed to be the sole executor and trustee of the estate of Stanley. He prepared a draft demand letter and sent it to Ed on 1 December 2011. Ed corrected the reference to him as “the Trustee” to read “one of the Estate Trustee [sic] of the Estate of Stanley Sobie” and sent it back to his lawyer. The lawyer advised that his assistant made the change and sent it out without him reviewing it.
[70] Even accepting that, the claim that the lawyer then drafted went on to reference the Certificate of Appointment by specific date. Had the Certificate been reviewed, it would have been apparent that Kimberley was an executor.
[71] Even if I consider that Ed’s lawyers did not know that Kimberley was an executor until being told by the other side in July 2017, he did not take steps to add her as a plaintiff or a defendant for six months. Ed’s lawyers filed a requisition for an order to continue on 7 September 2017. That was rejected, in light of the initial failure to add Kimberley as a party. Nothing occurred thereafter until 22 January 2018 when Kimberley signed a consent to be added as a co-plaintiff. At that time the amended notice of motion was served seeking that Kimberley be added as a co-plaintiff.
[72] The plaintiff argues that the defendants should have obtained the Certificate of Appointment of Estate Trustee with a Will of Stanley sooner and should have objected sooner. It is not the obligation of the defendants to ensure an action is properly constituted or to search records. However, when the defendants did take that step, they did point out the lack of compliance to the plaintiff and that did not cause any immediate action on the part of the plaintiff to remedy the issue.
Issue 3: Did the plaintiff seek an order to continue the action in a reasonable period of time?
[73] Rule 11.03 provides that where a transfer or transmission of interest of a plaintiff takes place while an action is pending and no order to continue is obtained within a reasonable time, a defendant may move to have the action dismissed for delay.
[74] The property was transferred to Ed on 14 March 2016, almost two years before the amended notice of motion was served. As of the date of that transfer, Ed was required to obtain an order to continue. Again, it was the defendants who brought this transfer to the attention of Ed’s lawyer in July 2017. Again, no relief was sought to obtain the necessary order to continue until the requisition was filed in September 2017 and, after its rejection, the amended notice of motion was served on 30 January 2018.
[75] The existing plaintiff has not had an interest in 16 Norris since March 2016. I find that Ed did not move in a reasonable period of time to obtain an order to continue his action.
[76] Even if I am wrong and these last two issues are not sufficient grounds to dismiss the plaintiff’s action on their own, I find that they are supportive of the defendants’ motion as they constitute further grounds as to why the action should be dismissed for delay.
Disposition
[77] The plaintiff’s action is dismissed with costs of the motion and of the action. While I have submissions from some parties on costs, I have not reviewed them as they appear to reference settlement offers. I encourage the parties to attempt to settle costs of the motion and of the action. If they are unable to do so within 30 days of this decision, the defendants may file costs submissions for the motion and for the action, each no more than three pages in length and a costs outline for each by 10 August 2018. The plaintiff may file responding costs submissions of a similar length by 24 August 2018.