4.31: Application to deal with delay

Case Summary

On June 11, 2021, the Applicant, Oustinow Estate, filed an Application to dismiss the Respondent’s Action for delay. The Statement of Claim was initially filed on February 18, 2011, wherein the Respondent sought a constructive trust or, alternatively, damages, on a property (the “Property”) that Metropolitan Oustinow (“Oustinow”) owned at the time of his death. The Property was left to a United States convent pursuant to Oustinow’s will. The Respondent alleged that he had been promised the land by Oustinow prior to his death.

Justice Ross determined that the appropriate framework to apply was the six-part test set out in Humphreys v Trebilcock, 2017 ABCA 116, but noted that this was not the only way to analyze delay pursuant to the Alberta Court of Appeal’s comments in Transamerica Life Canada v Oakwood Associates Advisory Group Ltd, 2019 ABC 276.

The Court had no issue finding that the first part of the test, whether there had been delay, was met, as the Action had been ongoing for ten years and the Pleadings were still not resolved. However, while there had been delay, the delay was not inordinate or excusable. Justice Ross found that large portions of the delay were attributable to the Applicant, including two years and nine months to find a replacement litigation representative, one year and one month to file a Statement of Defence, and an extended period wherein the Applicant failed to provide dates for Questioning. Further, the parties later agreed to adjourn Questioning to pursue settlement discussions, which took approximately two years. Justice Ross, in deeming that the delay was not inordinate or excusable, also noted that the Plaintiff had taken litigation steps by filing an Affidavit of Records and by entering into a litigation plan in 2018, and that the matter was more complex than the Applicant suggested as it involved actions taken by the Respondent over many years in purported reliance on Oustinow’s promise.

Justice Ross held that since the delay was not inordinate or excusable, the presumption of prejudice did not apply, and the onus was on the Applicant to prove significant prejudice arising from the delay, which “is the most important factor of the analysis.” The Applicant alleged prejudice in four different manners: 1) reputational; 2) inability to distribute the estate; 3) loss of evidence; and 4) as a result of an adverse possession Action brought by the Respondent. The Court rejected each argument, finding that: 1) the Defendant would have taken appropriate steps to move the Action along if there was significant reputational prejudice; 2) there was no evidence that any party was impacted from the delay in finalizing the estate; 3) there was no evidence that the Applicant had lost documents or witnesses due to the delay; and 4) there was no evidence of the Respondent’s continued occupation of the lands but, even if that existed, the Court did not accept that that alleged prejudice arose from any delay in pursuing the within Action.

The Application was dismissed.


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