4.33: Dismissal for long delay

Case Summary

The Applicant, a beneficiary of the estate in issue, applied to strike a motion brought by an executor and beneficiary of the estate (the “Respondent”) under the Dependants Relief Act, RSA 2000, c D-10.5 (the “DRA Claim”), for long delay pursuant to Rule 4.33 (the “Application”).

At a Case Management Conference (“CMC”), one of the estate executors requested that the Case Management Justice (“CMJ”) determine whether the Respondent was a dependant. The matter was scheduled to be heard on December 7, 2016. At that time, the CMJ declined to determine the issue on Affidavit evidence alone and proposed a Judicial Dispute Resolution (“JDR”) take place to settle the claim. The matter was adjourned sine die to schedule a JDR, which never took place because the Respondent declined to participate.

The Application was initially filed on December 19, 2019, and was heard on June 24 and July 2, 2020. At that time, Bokenfohr J. queried whether the Respondent was incapacitated during the three-year period, and ordered that he undergo a capacity assessment as a result of the decision in AF v Alberta, 2020 ABQB 268 (“AF”), which made it a live issue as to whether this would extend the limitation period. The Respondent refused to attend the assessment. At the subsequent CMC, Bokenfohr J. held that there was no issue with the Respondent’s ability to represent himself, and the Application was re-scheduled for March 1, 2023.

The Court held that the period for determining whether an uncontroversial significant advance had taken place was December 7, 2016, the date the matter was originally set to determine whether the Respondent was dependant, until December 18, 2019, the date the Applicant filed the Application (the “Relevant Period”). Justice Loparco found there had been no significant advance in the DRA Claim during the Relevant Period.

That, however, did not decide the issue, and the Court moved on to consider whether there were any other reasons for the delay, namely whether there was an agreement that suspended Rule 4.33, whether the Respondent was incapacitated during the Relevant Period, and whether any steps taken in a related Action constituted a significant step in the DRA Claim. The Court found there was no agreement that suspended the Rule and there was no evidence that proved the Respondent’s disability on a balance of probabilities as required by the decision in AF.

The Court then moved on to consider the factors in Angevine v Blue Range Resource Corp., 2007 ABQB 443, to determine whether the Application to pass accounts that was heard in 2018 by Renke J. was “inextricably linked” to the DRA Claim, thereby suspending the passage of time. The Court found that Renke J.’s decision resolved several issues pertinent to the DRA Claim, namely the determination of the Respondent’s compensation and the validity of the lease agreement between the Respondent and the deceased. Justice Loparco held that Renke J.’s decision related to assets and income, which was relevant to the Respondent’s entitlement as a dependant, and it thereby increased the quality of the information such that the parties and the Court would be better situated to rationally assess the merits of the DRA Claim. The Court also opined that the Respondent had experienced complex medical issues that may entitle him to a dependency claim and that any doubt as to whether there was a significant advance in the Action “ought to be resolved in his favour.” Accordingly, the 2018 Application to pass accounts constituted a significant step in the DRA Claim that suspended the passage the time. The Application was dismissed.

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