COURT FILE NO.: 39517

DATE: 20200123

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Peter Norman Charles Dean

Plaintiff

• and -

Teri Orenchuk and Bonnie Prince

Defendants

P. Downs, for the Plaintiff

S. Gallagher, for the Defendants

HEARD: September 25, 2019

TEMPLETON J.

[1] This action is between the son and two daughters of Grenville Earol Dean (“Mr. Dean”) who died on February 16, 2002.

[2] At the heart of the disagreement between the siblings is their father’s testamentary capacity with respect to a Will he signed just two months before he died in which he left everything in his Estate to his son, alone.

[3] There are two motions before me, namely, a Motion for Directions which has been brought by the Plaintiff son and a Motion to dismiss the action which has been brought by the Defendant daughters.

[4] The Estate is worth approximately $262,551.

The Law with respect to the dismissal of an action

[5] An action may be dismissed for delay when the Plaintiff has failed to take the procedural steps listed in Rule 24.01 and the Defendant is not in default. A Defendant who is not in default under the Rules or an order of the Court may move to have an action dismissed for delay where the Plaintiff has failed to set the action down for trial within six months after the close of pleadings. The Court shall dismiss an action for delay if the action has not been set down for trial or termination by any means by the fifth anniversary of the commencement of the action, unless the Plaintiff demonstrates that the dismissal of the action would be unjust[^1].

[6] Unless the court orders otherwise and subject to specified exceptions, the registrar shall dismiss an action for delay when the action has not been set down for trial or termination by any means by the fifth anniversary of the commencement of the action[^2].

[7] The Ontario Court of Appeal has held as follows,

An order dismissing an action for delay is obviously a severe remedy. The plaintiff is denied an adjudication on the merits of his or her claim. Equally obviously, however, an order dismissing an action for delay is sometimes the only order that can adequately protect the integrity of the civil justice process and prevent an adjudication on the merits that is unfair to a defendant.

The test under Rule 24.01 for dismissal of an action for delay is well established and is taken from English case law: see e.g. Saikaley v. Commonwealth Insurance Co. et al. (1978), 1978 1575 (ON SC); Armstrong v. McCall et al. (2006), 2006 17248 (ON CA), 213 O.A.C. 229; De Marco v. Mascitelli (2001), 14 C.P.C. (5th) 384 (Ont. S.C.); Allen v. Sir Alfred McAlpine & Sons, Ltd. [1968] 1 All E.R. 543 at 556.

The language used to describe the appropriate test varies slightly in the authorities. I prefer the language of Lord Diplock in Allen, at p. 556, where he described the exercise of the power to dismiss for delay in these terms:

It should not in any event be exercised without giving the plaintiff an opportunity to remedy his default, unless the court is satisfied either that the default has been intentional and contumelious, or that the inexcusable delay for which the plaintiff or his lawyers have been responsible has been such as to give rise to a substantial risk that a fair trial of the issues in the litigation will not be possible at the earliest date at which, as a result of the delay, the action would come to trial if it were allowed to continue.

The first type of case described by Lord Diplock refers to those cases in which the delay is caused by the intentional conduct of the plaintiff or his counsel that demonstrates a disdain or disrespect for the court process. In dismissing cases which fall within this category, the court effectively declares that a continuation of the action in the face of the plaintiff’s conduct would constitute an abuse of the court’s process. These cases, thankfully rare, feature at least one, and usually serial violations of court orders…

The second type of case that will justify an order dismissing for delay has three characteristics. The delay must be inordinate, inexcusable and such that it gives rise to a substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay: see De Marco, at paras. 22, 26; Armstrong, at paras. 11-12.

The inordinance of the delay is measured simply by reference to the length of time from the commencement of the proceeding to the motion to dismiss. Most litigation does not move at a quick pace. Some litigation, because of the issues raised and/or the parties involved, will move even more slowly than the average case. It is fair to say that many medical malpractice actions are among those cases that move slowly. However, even accepting that litigation customarily moves at a somewhat stately pace and that this kind of litigation can move even more slowly than most, there can be no doubt that 15 years from the commencement of the action to the motion to dismiss constitutes inordinate delay.

The requirement that the delay be “inexcusable” requires a determination of the reasons for the delay and an assessment of whether those reasons afford an adequate explanation for the delay. As LaForme J. explained in De Marco, at para. 26, explanations that are “reasonable and cogent” or “sensible and persuasive” will excuse the delay at least to the extent that an order dismissing the action would be inappropriate.

In assessing the explanations offered, the court will consider not only the credibility of those explanations and the explanations offered for individual parts of the delay, but also the overall delay and the effect of the explanations considered as a whole…

The third requirement is directed at the prejudice caused by the delay to the defence’s ability to put its case forward for adjudication on the merits. Prejudice is inherent in long delays. Memories fade and fail, witnesses become unavailable, and documents and other potential exhibits are lost. The longer the delay, the stronger the inference of prejudice to the defence case flowing from that delay: Tanguay v. Brouse, 2010 ONCA 73, at para. 2.

In addition to the prejudice inherent in lengthy delays, a long delay can cause case-specific prejudice.[^3]

[8] The Ontario Court of Appeal has further held that,

An action may be dismissed for delay where the delay is (1) inordinate; (2) inexcusable; and (3) such that it gives rise to a substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay. The jurisprudence provides guidelines for evaluating the three requirements:

Inordinate: A court will measure the length of time from the commencement of the proceeding to the motion to dismiss to determine if the delay is inordinate: Langenecker, at para. 8; Ali v. Fruci, 2014 ONCA 596, 122 O.R. (3d) 517, at para. 11. When considering the delay, the court should remember that some cases will move slower than others because of the issues raised, the parties involved, and/or the nature of the action: Langenecker, at para. 8.

Inexcusable: A court should consider the reasons offered for the delay and whether those reasons provide an adequate explanation, with regard to the credibility of the explanations, the explanations for individual parts of the delay, the overall delay, and the effect of the explanations considered as a whole: Langenecker, at paras. 9-10.

Prejudice: The third factor considers the prejudice caused by the delay to a defendant’s ability to put forward its case for adjudication on the merits: Langenecker, at para. 11. An inordinate delay will give rise to a presumption of prejudice and, unless rebutted, that presumption may result in the action being dismissed: Armstrong v. McCall (2006), 2006 17248 (ON CA), 213 O.A.C. 229 (C.A.), at para. 11. A defendant may also suffer, and demonstrate, case-specific prejudice: Langenecker, at para. 12. [^4]

The Evidence

[9] The evidence with respect to the motions consists of Affidavits from the parties and exhibits attached thereto.

(a) Chronology of Life Events

[10] In 1996, Dr. Ferguson wrote that Mr. Dean was complaining that “at any time he is not occupied during the day, he is quite drowsy” and had told her that he had fallen asleep at a red light and did not drive long distances because of concerns about drowsiness. Dr. Ferguson reported that she was obligated to notify the Ministry of Transportation.

[11] On October 27 1997, Mr. Dean was assessed for progressive memory loss. He was living alone and had difficulty recalling the names of things and people. He would apparently forget what he had done earlier in the day or a few days previously, but his memory was better with respect to “remote events”. He was oriented as to the month and year that day but was wrong about the date. He was able to calculate, and his writing and construction were normal, but he recalled 3:3 objects after ten minutes and his knowledge of current events was vague. He was unable to continue the testing because he became very upset. The doctor concluded by indicating that Mr. Dean may be eligible for a drug trial for early dementia.

[12] On December 31, 1997, Mr. Dean executed his Last Will and Testament in which he provided for the distribution of his Estate equally in three ways to his three children, namely, Mr. Peter Dean (“Peter”), the Plaintiff and his two daughters Teri Orenchuk (“Teri”) and Bonnie Prince (“Bonnie”), the Defendants.

[13] In this Will, he named Teri as the Executrix and Trustee of his Estate. If she were unable to act, Bonnie was nominated to act in her stead.

[14] On February 3, 1998, the original testing that had started in December 1997 was completed and the assessors concluded that Mr. Dean had demonstrated evidence of both visual and verbal memory loss.

[15] Mr. Dean was tested again in October 1999 regarding “increasing problems with his memory”.

[16] Dr. Stewart wrote in her report that Mr. Dean had forgotten to take his list of medications with him to the appointment. His greatest difficulty was remembering names. He was oriented as to month and year but not the day. he occasionally had difficulty remembering words and mild difficulty with respect to calculation. Otherwise his speech, construction and writing were normal.

[17] In her conclusion, Dr. Stewart wrote that Mr. Dean was showing continued problems with recent memory and had an “obvious severe sensory neuropathy and ataxia” all of which she suspected were related to chronic alcohol intake.

[18] On November 18, 1999 Mr. Dean indicated to the assessors that he was having ongoing problems with his memory. He often misplaced his belongings, had difficulty remembering the names of people including the names of his grandchildren and old acquaintances and relied on the use of a daybook to remind him of upcoming appointments. He had also noted little improvement on his mood and refused to answer the question regarding suicidal ideation on the Beck Depression Inventory.

[19] Unfortunately, on June 14, 2001, Mr. Dean who was 72 years of agreement at the time, was involved in a serious motor vehicle accident. He was admitted to hospital. According to a hospital record dated June 19, 2001, Mr. Dean was the sole driver and occupant of the vehicle which had rolled over. His car had been hit by a truck. By this time, Peter had been living with his father in the family home for a couple of years[^5].

[20] The hospital social worker who wrote a report dated June 19, 2001 noted that he met with Peter and Teri and Bonnie on June 19 and June 20, 2001 respectively. He learned that Peter had the Power of Attorney for Mr. Dean’s personal care and Teri and Bonnie had the Power of Attorney for his property and finances. The social worker also noted that there had initially been disharmony between Peter on the one hand and his two sisters on the other but that they had resolved their differences during a meeting on June 20, 2001 and had agreed to act in the best interests of their father.

[21] The Radiology report dated June 14, 2001 confirmed that Mr. Dean’s injuries were serious. He had suffered right temporal lobe cortical contusions, a traumatic subarachnoid hemorrhage with a possible small tentorial subdural, right side, extensive scalp injury and fracture of the left maxillary antrum anterior wall (sinus wall).

[22] According to Dr. Goddard, Mr. Dean was unconscious for eleven days.

[23] In a hospital record dated July 3, 2001, the author noted that Mr. Dean had a decreased level of consciousness and increased confusion.

[24] By July 12, 2001 there was no longer any evidence of a traumatic arachnoid hemorrhage.

[25] Apparently, upon discharge from the hospital, Mr. Dean moved into the Chelsey Park Retirement Residence (“Chelsey Park”) in London.

[26] On August 7, 2001 Mr. Dean met with his family physician who noted that Mr. Dean was complaining of persistent headaches and confusion.

[27] On August 10, 2001 Mr. Dean went to see Mr. Michael Lamb, a lawyer in London. Mr. Dean instructed Mr. Lamb to prepare a new Power of Attorney for Property in favour of his son, Peter, and to notify his daughters, Teri and Bonnie, that the previous Power had been revoked. Mr. Dean did not give instructions to Mr. Lamb to change his Will.

[28] According to Mr. Lamb’s notes of their meeting, Mr. Dean indicated that he was living in Chelsey Park but intended to return home as soon as possible. His daughters were closing his business and refusing to give him money[^6]. Insurance was covering Chelsey Park. He had no idea what they were doing with his assets. He also indicated that his son was a truck driver and on the road a lot, but this was a better way “to care for his father”. A Power of Attorney for Care was already in place appointing Peter so “only need financial”. There is a further note, “CIBC Oakridge – notify when P of A signed so no further activity by daughters”.

[29] On August 31, 2001 Mr. Dean met again with Mr. Lamb and confirmed that he wanted to revoke the for Powers of Attorney but also wanted to wait before signing a new one. He wanted to take control himself. A letter dated September 11, 2001was sent to Teri by Mr. Lamb indicating that he had been retained by Mr. Dean and that Mr. Dean had revoked the Power of Attorney appointing her and Bonnie management of his finances. He sought the return of all documents, bank records and other items belonging to Mr. Dean.

[30] An appointment was arranged for Mr. Dean to meet with Mr. Lamb and sign the new Power of Attorney on December 6, 2001 but Peter contacted Mr. Lamb’s office and left a message cancelling the appointment.

[31] On December 5, 2001 Mr. Ronald Dickie, another lawyer in London went to see Mr. Dean at Chelsey Park. It is unclear at whose initiative this meeting was arranged. In later correspondence, Mr. Dickie indicated that when he met with Mr. Dean on this date, Mr. Dean was aware of his deteriorating health but was not on any medication at the time. He found Mr. Dean to also be aware of his assets and liabilities; the fact that he had three children; and, the fact that he did not want to provide for his two daughters in his Will. Apparently, Peter was not present as Mr. Dickie took instructions for a new Will.

[32] Mr. Dickie returned to see Mr. Dean at the Chelsey Park Retirement Residence on December 11, 2001 at which time the new Will prepared by Mr. Dickie was signed by Mr. Dean. Mr. Dickie later wrote that from his (Mr. Dickie’s) perspective, there was no issue regarding Mr. Dean’s testamentary capacity.

[33] In this Will, Mr. Dean nominated his son as the Executor and Trustee of his Estate and named him to be his sole heir.

[34] Five days later, on December 16, 2001, Mr. Dean was admitted to hospital with an upper GI bleed. He complained of band-like epigastric pain. He had lost 40 pounds since the accident six months earlier. He had a history of alcohol abuse but had not consumed alcohol since the accident. Mr. Dean was in hospital for four days until December 19, 2001.

[35] It was noted in the Discharge Summary dated January 10, 2002 that Mr. Dean had also experienced “increasing confusion since his motor vehicle accident during which he had suffered a head injury” and that “[h]is confusion had notably worsened over the two weeks prior to his admission. He also had a two-week history of increase in abdominal girth. An ultrasound performed approximately one month prior to his hospital admission showed lesions on his liver.”

[36] In the same Discharge Summary, Mr. Dean’s “Problem List – Active” included the following:

• esophageal varices;
• esophageal ulcers;
• multiple gastric ulcers;
• duodenal ulcer;
• ascites;
• confusion/dementia; (my emphasis)
• liver masses;
• alcohol abuse;
• ventricular pacemaker;
• gout;
• osteoarthritis;
• benign prostatic hypertrophy;
• head injury from motor vehicle accident in June 2001

[37] On January 25, 2002 Mr. Dean was assessed by Dr. Ghent who diagnosed him with having cirrhosis with hepatocellular carcinoma. In his report dated January 29, 2001 Dr. Ghent reviewed Mr. Dean’s history but also indicated, “I abbreviated the review of systems since it was clear that he was not mentally normal. He was a wasted, frail, vague fellow who was mildly icteric…His nutritional state could only be rated as fair or even poor…I did not get him out of the wheelchair to examine him in detail, but he had obvious ascites and collaterals over the abdominal wall. He was confused but didn’t have any fetor or definite asterixis.” Sadly, the doctor did not see any prospects for meaningful treatment and believed it appropriate for Mr. Dean to receive palliative care.

[38] Mr. Dean died on February 16, 2002.

[39] Peter’s two sons moved into their grandfather’s home to live with Peter after their grandfather’s death.

[40] According to Peter:

• after his father’s death, he became the custodial parent to his sons then aged 9 and 7 years;
• thereafter, he became consumed with raising his children and working fulltime to provide for them;
• in 2007/2008, his younger son was diagnosed with ulcerative colitis and was hospitalized;
• he became distracted dealing with his son’s illness, caring for his other son and working fulltime;
• he then ran out of funds to pay for a lawyer due to the medical expenses incurred for his son’s treatment;
• he suffered a knee injury that interfered with his employment.
• in January 2015, he retained another lawyer because Mr. Dickie had retired but had difficulty paying this lawyer;
• in May 2015, he was introduced to yet another lawyer, Mr. Morrissey by a third party, Chris Buckley who personally took steps to resolve the litigation;
• he lost contact with this third lawyer and their party because he fell at home and hit his head on the back of the tub;
• in April 2017, he resumed contact with Mr. Buckley who instructed Mr. Morrissey to draft a Consent to the Appointment of Peter as the Estate Trustee and dismissal of the action for Teri and Bonnie to sign. Teri and Bonnie refused.
• in May 2017, he retained his current lawyer Paula Downs to respond to the Motion initiated by Teri and Bonnie seeking an order preventing the sale of Mr. Dean’s home;
• on consent, the property was sold and the net proceeds of sale in the amount of $262,551.18 were placed in trust.

[41] In May 2016, the Municipality registered a Certificate on title to Mr. Dean’s property indicating that the property would be sold for unpaid taxes.

(b) Chronology of the Litigation

[42] Subject to further or other evidence, the events with respect to the chronology of the litigation proper is described below.

(i) 2002

March

[43] In early March, Peter filed an Application for a Certificate of his Appointment as the Estate Trustee. In the Application, the value of the Estate was listed at $90,000.

[44] On or about March 18, 2002 Teri and Bonnie served and filed a Notice of Objection.

[45] A Notice to Objector was sent out by Peter on or about April 17, and on or about May 6, Teri and Bonnie served and filed a Notice of Appearance indicating that they opposed the issuing of the Certificate requested by Peter.

May

[46] On May 10, Peter initiated a Motion in the Superior Court for Directions with respect to the objections filed by Teri and Bonnie.

June

[47] On June 11, Mr. Justice Browne ordered Peter to serve a Statement of Claim within the next twenty days. Peter was to be named the Plaintiff and Teri and Bonnie were to be named the Defendants. He further ordered that this matter be tried by a judge without a jury on a date to be fixed by the Registrar.

[48] A Statement of Claim was issued on June 13. In this Claim, Peter sought (and still seeks) a declaration that

• the Will dated December 11, 2001 was and is the last Will and Testament of Mr. Dean;
• Mr. Dean had testamentary capacity to make the Will dated December 11, 2001; and
• an order granting him probate of the Will dated December 11, 2001.

July

[49] On or about July 25, Teri and Bonnie served and filed a Statement of Defence. In their Statement, Bonnie and Teri alleged and still allege that their father had developed an irrational belief that they had taken financial advantage of him and that Peter had interfered with attempts by each of them to communicate with their father.

(ii) 2003

September

[50] Examinations for Discovery of all parties were completed on September 16, 2003. All parties were represented by counsel.

[51] Peter gave four undertakings to obtain and produce the following:

• LHSC, Victoria Hospital emergency room records regarding Mr. Dean;
• any additional LHSC records regarding Mr. Dean not included in the emergency room records;
• the records in the possession of Chelsey Park Residence including clinical notes of nurses and the notes of Dr. Harris; and
• the entire no-fault accidents benefit file relating to Mr. Dean from CAA.

(iii) 2005

June

[52] A letter was sent by Mr. Gallagher for Teri and Bonnie to Mr. Dickie and Mr. Lamb seeking satisfaction of the Undertakings.

(iv) 2017

May

[53] On May 30, an interim, interim Court order is granted prohibiting the sale of Mr. Dean’s home without the consent of Teri and Bonnie.

June

[54] The tax arrears in the amount of $27,814 that had accrued on the property were paid by way of a mortgage that was placed on the property on the consent of all parties.

September

[55] An Agreement of Purchase and Sale of the property was signed.

November

[56] On November 17, Ms. Downs sent a letter to Mr. Gallagher that Peter was not agreeable to paying any money from the Estate to Teri and/or Bonnie.

[57] On November 24, Mr. Gallagher confirmed his clients’ agreement to the sale.

(v) 2018

March

[58] On March 13, Ms. Downs sent an email to Mr. Gallagher confirming that the sale of the property had been completed and that she would review the file and contact Mr. Gallagher thereafter.

August

[59] On August 28, Ms. Downs wrote to Mr. Gallagher and indicated, inter alia, that

• at the trial, Mr. Dickie, Mr. Lamb and Mr. Buckley would be called as witnesses with respect to Mr. Dean’s testamentary capacity; and
• the transcripts of Bonnie’s and Teri’s evidence at the Examinations for Discovery were never ordered and the oral recordings have been destroyed due to the passage of time.

(vi) 2019

January

[60] There is an exchange between counsel regarding the need for the file to be moved forward. The Undertakings remained unsatisfied.

May

[61] Ms. Downs sent letters to each of LHSC, Chelsey Park Retirement Residence and CAA seeking production of the records sought by Teri and Bonnie in 2003.

[62] On May 29, Peter learned that the records from Chelsey Park Retirement Residence are no longer available.

[63] Peter’s Undertaking to obtain these records cannot be satisfied.

July

[64] The Undertaking with respect to the medical records from LHSC was satisfied.

[65] On July 18, Peter learned that the records from the CAA were no longer available.

[66] Peter’s Undertaking to obtain these records cannot be satisfied.

The Position of the Parties

(a) The Defendants (Moving Parties)

[67] It is the position of the Defendants that this delay in this case is inordinate and inexcusable. Further, the loss of relevant evidence from both Chelsey Park Retirement Residence and the insurance company, CAA creates a substantial risk that a fair trial will not be possible.

[68] For these reasons, the Defendants seek a dismissal of the action and an order that the Defendant Teri Orenchuk may apply for an Appointment as Estate Trustee with a Will for Mr. Dean pursuant to his last Will and Testament dated December 31, 1997.

(b) The Plaintiff (Responding Party)

[69] It is the position of the Plaintiff that a dismissal of the action does not advance the parties toward resolution of the issues between them. Dismissal of this action does not lead to the conclusion that the Will dated December 31, 1997 is the last valid Will of Mr. Dean or any conclusion as to Mr. Dean’s testamentary capacity at the time he executed his Will on December 11, 2001.

[70] The Plaintiff requests a dismissal of the Defendants’ Motion and a Court ordered timetable to move this matter forward to conclusion.

Analysis

[71] In determining an appropriate outcome, it is always important to look at the basis of any claim.

[72] In this case, the relief claimed by Peter is essentially administrative. He is not claiming damages or asking the Court to make findings of liability. He is simply asking the Court for permission to administer his father’s Estate in accordance with the last Will executed by his father.

[73] There are few substantial competing facts in this case. It is a fact that

• Mr. Dean signed a Will in 1997 in which he included his three children;
• he signed another Will in 2001 in which he excluded two of those children;
• prior to signing the second Will he met with two different lawyers, each of whom acted on his instructions at the time;
• he had been tested both prior to and subsequent to the execution of both Wills for memory loss and confusion;
• he was showing signs of early dementia even before he signed the first Will in 1997; and
• he had suffered a significant physical injury in June 2001 which resulted in a coma, lengthy hospitalization and release to a care facility rather than independent living in his own home;
• the litigation was commenced by Peter in 2002 and almost 18 years later has yet to be completed;
• there have been blocks of years when it appears that no effort (including correspondence) was made by Peter or his counsel to move this matter forward.

[74] On the basis of all of the evidence before me, I find that the delay by Peter in this litigation is inordinate:

• From the commencement of the proceeding to the motion to dismiss, seventeen years have lapsed.
• The issues raised in this proceeding by both the Plaintiff and the Defendants were not complex.
• The nature of this action required commitment and progress toward a resolution within a reasonable length of time given (a) the involvement of independent witnesses and the need for their evidence; (b) the reliance on medical records and meaningful interpretation of those records by the record makers or holders; and (c) the significance of reliable memory and accuracy of recall with respect to all of the witnesses involved.

[75] I also find that the delay is inexcusable. The reasons offered for the delay do not provide an adequate or credible explanation for either some or all of the delay involved in this case.

[76] The fact that Peter was looking after his sons even when one was so seriously ill for a period of time and therefore distracted is feeble as an excuse with respect to a delay of this magnitude. Single parents have serious, at times overwhelming and far-reaching responsibilities including seriously ill or challenged children; that is certain. But I cannot accept that on all of the evidence before me that Peter was unable or did not have any opportunity as a result of his parenting obligations to provide instructions to counsel with respect to the disposition of his father’s Estate for years at a time. In my view, to accept this explanation would undermine and fly in the face of the hard work and daily effort of single parents throughout this country who are able to not only prioritize their daily care for their children but also maintain fulltime employment and remain engaged in yet other responsibilities such as litigation, if and when required. It is a trite observation that the Courts are filled with single parent litigants on a daily basis.

[77] It is also somewhat ironic that with all of the health issues Mr. Dean personally faced as described above, he was apparently able to meet with a lawyer, provide instructions and execute a document on which Peter relies all within a matter of weeks.

[78] Peter also alleges that he had insufficient funds to retain a lawyer. But he took no steps to address this issue by move the matter forward on a self-represented basis. On the evidence before me, twelve years passed between 2005 and 2017 with no formal action taken by Peter at all.

[79] In my view, Peter’s explanations are neither reasonable nor cogent. They are not persuasive. When consideration is given to the overall delay and the effect of these explanations, the reasons proffered are neither sensible nor persuasive.

[80] Based on all of the evidence before me, I find it entirely reasonable to infer that Peter intentionally delayed the litigation process for such a long time in order to enjoy the benefit of living in his father’s home with his family for as long as possible and defer the potential for an adverse outcome until he was ready in his own time.

[81] The third factor referred to by the Ontario Court of Appeal as cited above, considers the prejudice caused by the delay to a defendant’s ability to put forward its case for adjudication on the merits. An inordinate delay will give rise to a presumption of prejudice and, unless rebutted, that presumption may result in the action being dismissed. A defendant may also suffer, and demonstrate, case-specific prejudice.

[82] I find that the delay in this matter has specifically prejudiced the Defendants’ ability to put its case forward for adjudication on the merits. Chelsey Park no longer has the records generated when Mr. Dean was a resident there. The CAA insurance file is no longer available.

[83] The Plaintiffs submit that the Chelsey Park records are immaterial to the outcome of the trial because they cover a brief period of time (July to December 2001) and it is unlikely that they will provide the Defendants with the evidence to prove that Mr. Dean suffered a head injury. They are further unlikely to contain evidence about an “irrational belief” the Defendants allege with respect to their father. They are also unlikely to contain evidence about any attempts by Peter to interfere with communication between Mr. Dean and his daughters. The CAA records are unlikely to have contained any of this evidence either.

[84] The submissions of the Plaintiff may well be accurate but there is a risk that they are not. And it is that risk – of proceeding without evidence that but for the delay of the Plaintiff would have been available for the Defendants’ and the Court’s consideration– that enures to the detriment of the Defendants and creates the prejudice. It is impossible to know what information those records contained. I am also of the view that the information contained in any records regarding Mr. Dean’s mental, physical and psychological health in the months leading up to the execution of the Will dated December 11, 2001 may well be significantly relevant to the outcome of this litigation.

[85] It is also reasonable to infer that memories have faded given the lapse of time. As noted by the Ontario Court of Appeal, “… 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. Given the length of the delay in the present case, the presumption of prejudice is strong.” [^7]

[86] In Tanguay, the delay was eighteen years, documents were no longer available and there had been inaction for a number of years.

Conclusion

[87] For all these reasons, the Defendants’ Motion to dismiss this action is granted.

[88] The issue of costs may be addressed in writing briefly if the parties are unable to agree.

“Justice L. Templeton”

Justice L. Templeton

Released: January 23, 2020

COURT FILE NO.: 39517

DATE: 20200123

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Peter Norman Charles Dean

Plaintiff

• and -

Teri Orenchuk and Bonnie Prince

Defendants

RULING

Templeton J.

Released: January 23, 2020

[^1]: Rule 24.01 of the Rules of Civil Procedure [^2]: Rule 48.14 of the Rules of Civil Procedure [^3]: Langenecker v. Sauvé, 2011 ONCA 803 [^4]: Sickinger v. Krek, 2016 ONCA 459 [^5]: Mr. Dean was separated from his wife and had settled matters with her. [^6]: Mr. Dean had apparently operated a “fund-raising” business. [^7]: Tanguay v. Brouse, 2010 ONCA 73