BOYKO v BOYKO, 2021 ABQB 266


2.11: Litigation representative required
2.13: Automatic litigation representatives
2.14: Self-appointed litigation representatives
4.31: Application to deal with delay
4.33: Dismissal for long delay
6.14: Appeal from master’s judgment or order

Case Summary

The Appellant appealed from a Master’s Decision which had determined that the two sons of the deceased Plaintiffs had standing as litigation representatives to continue this Action on behalf of their parents. The Master also dismissed the Appellant’s Application for dismissal due to long delay pursuant to Rules 4.31 and 4.33.

Justice Sulyma began by discussing the standard of review on Appeal from a Master’s Decision, which is a correctness standard. Justice Sulyma noted that it is not strictly true to refer to these types of Appeals as being de novo. This is so because, pursuant to Rule 6.14, the addition of new evidence is not automatic (although the bar is not high) and because the record before the Master, and the Master’s reasons, are being reviewed. The reviewing Judge is not hearing the matter anew.

With respect to the matter of the standing of the litigation representatives, Sulyma J. observed that the Master properly limited the analysis to the necessity of a litigation representative, as described under Rules 2.11, 2.13, and 2.14. Justice Sulyma also noted that no case law was provided that would require the litigation representatives to prove underlying matters of standing to an Applicant. Justice Sulyma upheld the Master’s Decision to permit the two sons to continue acting as litigation representatives and to continue the Action.

With respect to Rules 4.31 and 4.33, Sulyma J. held that the Master was correct in finding that unsuccessful settlement discussions which took place in 2015 constituted a significant advance in the Action because these settlement discussions had the effect of narrowing the issues in dispute, and therefore were progress towards resolution. Justice Sulyma agreed with the Master that there was no period of three or more years without a significant advance in the Action, as required by Rule 4.33.

Justice Sulyma therefore dismissed the Appeal.

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