DAWSON v DAWSON, 2015 ABQB 449
1.4: Procedural orders
4.31: Application to deal with delay
6.21: Preserving evidence for future use
7.3: Summary Judgment (Application and decision)
The Defendants brought an Application for Summary Dismissal of the Plaintiff’s Claim. The Plaintiff alleged that the family ranch should have been willed to him upon his father’s death. The Court noted that, since Hryniak v Mauldin, 2014 SCC 7 (CanLII), the onus for obtaining a summary disposition has lessened. Master Prowse stated that, due to the conflict in evidence between the parties, the evidence of the Respondent is to be assumed true. As such, Master Prowse declined to summarily dismiss the Claim pursuant to Rule 7.3.
The Defendants argued, in the alternative, that the Claim should be dismissed for inordinate delay pursuant to Rule 4.31. The Defendants argued that they were significantly prejudiced by delay due to the death of their father’s wife, who was one of their witnesses. The Court acknowledged that her death affected the Defendant’s ability to present a full defence, but that the prejudice complained of was not caused by the Plaintiff’s delay. Further, there was evidence that she was in poor health for quite some time and the Defendants could have applied to order Questioning to preserve evidence under Rule 6.21.
Master Prowse declined to strike the Action, but made a procedural Order directing the Plaintiff to complete Questioning and answer Undertakings, failing which the Defendants could apply for an Order dismissing the Action pursuant to Rule 1.4(2)(a).View CanLII Details