COURT FILE NO.: 26228/13
DATE: 2021-11-29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DONALD NELSON
Plaintiff
– and –
LAURIENE RANCOURT personally and LAURIENE RANCOURT as trustee for the estate of jean Isabelle Nelson, deceased
Defendant
Benjamin F. Pritchard, for the Plaintiff
Paul A. Johnson, for the Defendant
HEARD: July 6, 2021 and August 30, 2021
rasaiah j.
reasons for decision
INTRODUCTION
[1] By way of motion, the defendant, Ms. Lauriene Rancourt (hereinafter “Ms. Rancourt”), as trustee for the estate of Jean Isabelle Nelson (hereinafter “Mrs. Nelson), deceased, is seeking, inter alia, an order dismissing the plaintiff’s action bearing Court File Number 26228/13 for delay.
[2] Ms. Rancourt is the estate trustee of Mrs. Nelson’s estate, pursuant to Mrs. Nelson’s last will and testament dated November 16, 2012 (hereinafter the “will”).
[3] Ms. Rancourt is the ex-spouse of the late Mrs. Nelson’s son and was Mrs. Nelson’s close friend up to the time of her passing.
[4] Mrs. Nelson was married to the plaintiff responding party to this motion, Mr Donald Nelson (hereinafter “Mr. Nelson”), for approximately 59 years before separating from him on or about July 14, 2019.
[5] After Mr. Nelson and Mrs. Nelson separated, they both retained counsel to negotiate a settlement with respect to their respective property claims.
[6] After separating from Mr. Nelson, Mrs. Nelson changed her will on November 16, 2012 through the lawyer handling the matter of her separation, namely, Ms. Tracy Ross (hereinafter Ms. Ross”).
[7] The will was witnessed by Ms. Ross and her legal assistant.
[8] Mrs. Nelson died suddenly on November 19, 2012.
[9] Mrs. Nelson’s estate is very modest – it consists, primarily of two (2) pieces of real estate, one (1) being the matrimonial home and the other being a property located on St. Joseph Island. Both properties were owned jointly by Mr. Nelson and Mrs. Nelson.
[10] By way of a notice of application issued February 27, 2013, Mrs. Nelson’s estate sought a determination from this Honourable Court as to whether or not, inter alia, Mrs. Nelson’s estate has an undivided one-half interest in the aforementioned properties (hereinafter the “estate’s application”).
[11] In response, Mr. Nelson brought a motion seeking a determination as to whether the will was valid. The court ordered Mr. Nelson to commence the within action within 30 days after April 25, 2013, to address his challenge of the will. This order was later varied by the June 27, 2013 endorsement of Justice Koke, attached to the affidavit of Donald Nelson sworn March 3, 2021, as Exhibit “A”, such that Mr. Nelson was required to commence the action by July 31, 2013.
Mr. Nelson’s Delays
[12] Mr. Nelson issued his statement of claim on August 1, 2013 but did not serve the claim on Ms. Rancourt until over five months later, on January 16, 2014. Ms. Rancourt’s statement of defence was delivered on March 7, 2014.
[13] The estate’s application, and the administration of the estate, were stayed pending a determination of Mr. Nelson’s claim regarding the will or further order of this Honourable court.
[14] Mr. Nelson has not set the matter down for trial since commencing the action, and further, has only taken the following steps to move the matter forward:
(a) In February 2015, being almost two years since the claim was ordered to be issued in April of 2013, brought a motion seeking access to Mrs. Nelson’s medical records and Ms. Ross’ notes relating to the preparation of the will;
(b) Two years later, in February of 2017, Mr. Nelson scheduled examinations for discovery; and
(c) Approximately eight months later in November 2017, a non-party was examined for discovery.
[15] Mr. Nelson has not taken any steps since November 2017 to move this matter towards a conclusion.
[16] Almost eight years have passed since Mr. Nelson commenced the within action to challenge the will.
[17] By way of his affidavit of March 3, 2021, Mr. Nelson has abandoned his position that Mrs. Nelson was not competent at the time she made her will but, it appears, he wishes to continue to contest the will on the basis that Mrs. Nelson was allegedly unduly influenced at the time she executed the will.
[18] Mr. Nelson’s action it is submitted ought to have been administratively dismissed on or about August 1, 2018. It was not because the Local Registrar’s Office did not set time limits in its system to track the administrative dismissal date and in addition, will not dismiss Mr. Nelson’s action without an order from this Honourable Court.
[19] The moving party states that the administration of the estate and the adjudication of the estate’s application has been delayed for almost eight years, and will continue to be delayed, as a result of Mr. Nelson’s failure to move his action forward in a timely manner and in accordance with the Rules of Civil Procedure.
[20] The defendant seeks an order dismissing the action of the plaintiff based on delay.
[21] In the alternative, the defendant seeks to set it down for trial and pre-trial.
[22] Mr. Nelson appears now to be conceding the deceased capacity to make a will.
[23] The relevance of that is that the proceeding related to severance and right of survivorship of the matrimonial home he shared with the deceased could resolve or advance the within action he states.
[24] I agree that it does make practical sense now to prefer that proceeding on the severance/right of survivorship action to advance for these reasons. The order of Koke J. dated June 2, 2013 in action 26105/13 adjourned the case sine die – it is not stayed. It can be revived.
[25] On the issue of delay Mr. Nelson has set on his elderly age of 88 and issues that have arisen because of same, and Covid as his explanation for delay.
[26] The estate trustee submits Mr. Nelson has not established that it would be unjust to dismiss for delay emphasizing the steps to date and the time (8 years) that has passed.
[27] Has there been inordinate and excusable delay resulting in a substantial risk that a fair trial will not be possible? I conclude the answer is no given the concession of Mr. Nelson regarding the deceased’s capacity.
[28] Further, I am not satisfied that the delay was intentional on the evidence, or out of disdain or respect for the court process. I accept his age and Covid have interfered in his progress with the action or his perception as to how he could, if he could, continue to proceed. Covid has been a significant issue for the courts and processing of cases. Mr. Nelson has explained his delay in his affidavit as stated herein.
[29] When Mr. Nelson received the request to set this matter down for trial, it is true that the court was not operating trials for civil matters. Mr. Nelson, I accept, as an elderly then unvaccinated person was choosing to remain in his home for his health and safety.
[30] The prejudice on the capacity issue is significantly lessened by Mr. Nelson’s concession in my view, that he is no longer challenging the deceased’s capacity. The issue of undue influence/suspicious circumstances Mr. Nelson submits still exists and he outlined the evidence from the transcripts he may and intends to rely on. Accordingly, I disagree that there is an absence of evidence. For clarity, I make no assessment of that evidence, only that it is not correct to say that there is none.
[31] I don’t take issue with the credibility of Mr. Nelson’s explanation. His position on the capacity of the deceased is important. As such I am not persuaded a fair trial is not possible as a result. The issues will be less complex.
[32] The home in which Mr. Nelson resides is at stake and his rights regarding same will be significantly prejudiced given the severance/survivorship determination that has yet to be made if this action is dismissed.
[33] It is true that witness memories fade and fail. The materials suggest that discoveries occurred, and transcripts exist and/or are available which in my view addresses this concern in part.
[34] In making this decision, I noted that it will be Mr. Nelson’s burden to demonstrate undue influence/suspicious circumstances when it comes to the evidence including witnesses and the issue of memories fading, and as such the prejudice I see may be more so on him.
[35] In terms of administration of the estate and delay, I am not of the view that this factor tips the balance and outweighs the potential prejudice to Mr. Nelson. It appears that all but this property interest has been administered and it is correct to argue, as Mr. Nelson may, that there is no specific devise in the will with respect to the property and how it was to be dealt with specifically.
[36] Further, as for costs the estate may incur, the avenue of recovery of same is not foreclosed and this is not a security for costs motion.
[37] It appears now that Mr. Nelson is prepared to move this case forward and states he is ready for it to be heard along with the said application. The witnesses are all still available that are relevant to those proceedings. Transcripts exist. The court record for this case and others (family law proceedings) it appears also contains relevant materials to further address/promote fairness for trial.
[38] It appears also that the severance application, which was submitted is ready to be heard, as factums have been filed.
[39] Based on the facts and the issues, the parties in my view would be wise to proceed with concluding the application and/or have the matters heard together.
[40] Finally, it is true that it was uncertain at one time when trials could be set down as Covid restrictions and protocols changed. Since the motion was argued, cases are now being set. I am not satisfied that there is no trial time available on this case which I note may now require less time and may no longer be as complex. Moreover, in respect of Covid delays, such delays affect everyone, not just the litigants in this case and same is not the fault of Mr. Nelson nor should be visited on him (in terms of future delay) in my view with respect to the delay component in this case.
[41] Accordingly, the relief seeking dismissal for delay is not granted, however, the relief sought that it be set down for trial and a pretrial be set is granted.
[42] The parties are urged to resolve the issue of costs failing which submissions of three pages maximum may be made and submitted within 30 days along with bill of costs.
Rasaiah J.
Released: November 29, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DONALD NELSON
- and –
LAURIENE RANCOURT personally and LAURIENE RANCOURT as trustee for the estate of Jean Isabelle Nelson, deceased
REASONS FOR decisION
Rasaiah J.
Released: November 29, 2021