Klychak v. Samchuk, 2012 ABQB 85

Court of Queen ’ s Bench of Alberta Citation: Klychak v. Samchuk, 2012 ABQB 85 Date: 20120203 Dockets : 0703 11199, 0803 10406, 0803 13340 Registry: Edmonton Docket: 0703 11199 Between: Albert Klychak Plaintiff - and - Donald Samchuk Defendant And between: Docket: 0803 10406 Albert Klychak Plaintiff - and - Donald Samchuk Defendant And between: Docket: 0803 13340 Donald Samchuk Plaintiff - and - Anfred & Co. Inc. and Albert Klychak Defendants _______________________________________________________ Memorandum of Decision of the

Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [1] Donald Samchuk asks the court to order that three actions involving himself and Albert Klychak be tried together, or oneafter the other. Samchuk also asks the court for an order compelling Klychak, or Klychak’s company, to provide him with advance,sometimes called interim, costs for one or more of the three actions. [2] The three actions arise from events which occurred during the period from late 2002 to early 2008 in the business andpersonal relationships of Mr. Klychak and Mr. Samchuk. The first two actions were initiated by Mr. Klychak and relate to propertylocated near Leduc, Alberta.

In a “foreclosure action”, Klychak is claiming against Samchuk on a $150,000.00 promissory noteexecuted by the latter in 2004 and secured by Klychak as mortgagee on the Leduc property, which was acquired by Samchuk in 2004with money advanced by Klychak. Samchuk’s defence of that action includes a claim that the action is void because Klychak did notcomply with the notice requirements in the Farm Debt Mediation Act.

In that action, Samchuk has also counterclaimed, stating that theforeclosure action is an abuse of process because it was instituted by Klychak to deprive Samchuk of his interest in a cattle feedlotpartnership between the two. In an “unjust enrichment action” or “caveat action” dealing with the same Leduc property, Klychak claimsthat he is the beneficial owner of the Leduc property as a result of having advanced all of the money used to purchase the property. Thethird action, hereafter referred to as the “partnership action”, was initiated by Mr.

Samchuk relatively shortly after the filing by Klychakof his “unjust enrichment” action; in the “partnership action”, Samchuk claims to be a partner of Klychak, and Klychak’s company, in afeedlot operation established at Devon, Alberta in 2002.

Samchuk alleges that his contribution to the partnership was farming know-howand Klychak’s contribution was money. [3] Because of the inter-related parties and issues and danger of inconsistent verdicts, the interests of justice are best served byhearing the three actions together. [4] Case law establishes a tri-partite test for the award of advance, or interim, costs in commercial litigation: the applicant mustestablish that he genuinely cannot afford to pay for the litigation, the applicant’s claim must be prima facie meritorious, and there mustbe special circumstances.

Here, even if Samchuk’s claim - at least for quantum meruit payment - is prima facie meritorious and even ifSamchuk has established special circumstances based on the misunderstanding concerning accrued interest, Samchuk has not establishedthat he genuinely cannot afford to pay for the litigation. He has presented no evidence, for example, of the unavailability to him of legalservices on a contingency basis or of his inability to access third party litigation funding: Dugal.

Nor has he indicated his inability to payinstalments relative to litigation process rather than an inability to meet today the anticipated total cost of litigation: L.C.. [5] However, because of the circumstances here, including the inability of Klychak to be successful in both of his lawsuitsrelating to the Leduc property and the misunderstanding concerning accrued interest on the promissory note relating to that property, thecourt exercises its authority under s. 142 of the Land Titles Act to order that Klychak postpone his second caveat on the Leduc propertywhich will presumably allow Samchuk to obtain financing on the property not only to pay off Klychak, but also to finance the remaininglitigation.

Cases and authority cited [6] By Mr. Klychak: Andy & Jean Grebely Holdings Ltd. v. Commercial Union Assurance Co. of Canada, 2000 ABQB 604,[2000] A.J. No. 1048; Rae-Dawn Construction Ltd. v. Edmonton, [1992] A.J. No. 823 (C.A.); Tanguay v. Vincent, 1999 ABQB 814;British Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] 3 S.C.R. 317; Little Sisters Book and Emporium v. Canada(Commissioner of Customs and Revenue), 2007 SCC 2 , [2007] 1 S.C.R. 38; R. v. Caron, 2009 ABCA 34; Arndt v Gray[1993] A.J. No. 400 (M.). [7] By Mr. Samchuk: Bank of Montreal v. Valerio, 2009 ABQB 578; Mikisew Cree First Nation v.

Canada, [l998] A.J. No.869 (Q.L)(Q.B.); Jeerh v. Yorkton Securities, 2004 ABQB 975 ; Andy & Jean Grebely Holdings Ltd. v. Commercial UnionAssurance Co. of Canada, 2000 ABQB 604; Community Futures Development Corp. v. Litzenberger, [2006] B.C.J. No. 1244 (Q.L.)(S.C.); Alliance Pipeline Ltd. Partnership v. C.E. Franklin Ltd., 2007 ABCA 285; British Columbia (Minister of Forests) v. OkanaganIndian Band, 2003 SCC 71 , [2003] S.C.J. No. 76; Deans v. Thachuk, 2005 ABCA 368; Bre-X Minerals Ltd. v. Felderhof,

2010 ONSC 6921 (Sup. Ct.); Elbow River Marketing Limited Partnership v. Canada Clean Fuels Inc., 2011 ABQB 321; FDMA, s. 22;McKenna v. Marshall, [2004] O.J. No. 1963 (Q.L.) (C.A.); Intech Holdings v. Grisnich, [2003] A.J. No. 1539 (Q.L.)(Q.B.);Townsend v Florentis 2004 CarswellOnt 1402, [2004] O.T.C. 313. [8] By the court: L.C. v. Alberta (Metis Settlements Child & Family Services, Region 10) 2011 ABQB 42, [2011} A.J. No. 84; Dugal v Manulife Financial Corporation 2011 ONSC 1788; Do v Sheffer 2010ABQB 422, [2010] A.J. No. 1567. 1. Background

a) Factual [9] Samchuk is a 61 year-old former farmer and truck driver. According to the evidence filed in support of his application,Samchuk has a Grade 10 education, suffers from prostate cancer, is unable to work, and receives monthly disability benefits. He lives ina mobile home on the Leduc property, has no savings or investments, and owns very few assets, all of which (other than the Leducproperty) are of little to no value. [10] Klychak is 53 years old. [11] Between 1976 and 1992, Samchuk had a conjugal relationship with Lorraine Klyciak, Klychak’s sister.

Samchuk andKlyciak lived together from 1976 to the end of 2007; in the later years of that relationship, Samchuk and Ms. Klyciak lived in a housethey had built on an acreage in Spruce Grove, Alberta. [12] Anfred & Co. Inc. is a company which is 99% owned by Klychak. One Curtis Weiss owns the remaining 1% shareholding inthe company.

Prior to her death, Lorraine Klyciak was a director, but not a shareholder, of Anfred. [13] Samchuk has known Klychak since 1976, and believes him to be a wealthy stockbroker and businessman from Vancouver. [14] Samchuk's claim in the Partnership Action arises from a feedlot operation that was set up at Devon, Alberta in late 2001. Atthat time, the parties arranged to set up and run a cattle feedlot business on 2 80 acre parcels of land acquired for the purpose, DevonProperty #1 and Devon Property #2.

Klychak or Anfred provided essentially all the money required to purchase the two properties; thepurchase price of Devon #1 was $140,000.00 and for Devon #2 was &120,000.00. Nonetheless, the first of those properties wasregistered in Samchuk's name, and only the second was registered in Anfred's name.

Samchuk alleges that he contributed his labour,knowledge and experience with cattle to the operation, while Klychak (who lives in Vancouver, B.C.) and Anfred financed the startupcosts for the operation, and otherwise managed the financial aspects of the business. [15] In 2004, Samchuk bought some farm property at Leduc, Alberta. Klychak loaned him the approximately $150,000.00required to purchase the property and took back a promissory note. That note reads, in part: For value received, I promise to pay on demand to Albert Klychak of . . . . . . . .

West Vancouver, British Columbia, . . . the sum of OneHundred and Fifty Thousand . . . . Dollars to better secure the repayment of this Promissory Note I hereby charge the lands owned by meand legally described as follow (the Leduc property). Notice of dishonour and presentment for payment is hereby waived. There is no reference to interest in the note.

[ 16 ] All three of the properties referred to in this decision were raw land when acquired. [ 17 ] In April 2007, the personal relationship between Samchuk and Ms. Klyciak broke down and they separated, with Samchuk going to live on the Leduc property. (Ms. Klyciak passed away in 2009.) [ 18 ] Samchuk alleges that when his relationship with Ms. Klyciak broke down, she and her brother - Albert Klychak - developed a plan to deprive Samchuk of his interest in the feedlot operation and all three properties.

In particular, Samchuk alleges that he was locked out of the Devon properties, that he was misled into signing over ownership of Devon Property #1 to Klychak - which transaction is more fully described below - and that all of the feedlot operation ’ s assets were liquidated including some 120 cattle, farm equipment, and Devon Property #1 itself, which was sold for the sum of $725,000.00.

Samchuk alleges that he never received any income or assets from the feedlot operation, and was never compensated for the five and half years of labour that he contributed to the feedlot operation, which he estimates at 4,000 - 8,000 hours of work. [ 19 ] When the relationship between Samchuk and Ms. Klyciak broke down, Samchuk alleges that Klychak threatened to foreclose on the Leduc property, unless Samchuk transferred title to Devon Property #1 to Klychak.

On May 22, 2007, Klychak wrote to Samchuk stating that he would release Samchuk from all accumulated interest payments applicable to the Promissory Note of the registered Caveat on the Leduc land. . . . This release shall expire on midnight of the 28 th of May of the year 2007 and if Donald R.

Samchuk has not signed the required documentation for full transfer of title of the said land prior to the expiration then this release in its entirety shall become invalid. [ 20 ] In May, 2007, while he was represented by a different lawyer who represents him on this application, Samchuk transferred Devon Property #1 to Klychak, in exchange for Klychak's agreement to waive interest which had accrued on the Promissory Note. Klychak has since acknowledged that no such interest was owing at that time. [ 21 ] On July 16, 2007, Ms.

Klyciak filed a Statement of Claim against Samchuk. [ 22 ] On July 19, 2007, Klychak demanded payment of the $150,000.00 promissory note together with interest on the note from July 1, 2007 at 5.5% per annum. [ 23 ] On July 26, 2007, Ms. Klyciak filed a Certificate of Lis Pendens against the Leduc property, apparently claiming an interest in the property as a result of the common-law relationship. [ 24 ] By early August, 2007, Samchuk had obtained a financing commitment to obtain $150,000.00 to pay off the promissory note; the financing would have been secured by way of a new mortgage on the Leduc property.

However, the financer would not advance any money in light of the certificate of lis pendens filed by Ms. Klyciak. [ 25 ] On August 24, 2007, Samchuk filed a Caveat on Devon Property #2, claiming a partnership interest in the property. [ 26 ] On August 31, 2007, Klychak started the Foreclosure Action. [ 27 ] By December 18, 2007, Samchuk had again secured financing for the purpose of paying off the promissory note. The commitment was again conditional on removal or postponement of Ms.

Klyciak ’ s certificate of lis pendens. [ 28 ] On December 21, 2007, Klychak executed a second caveat against the Leduc property, which was registered on January 7, 2008.

[ 29 ] At some point, Klychak paid the property taxes on the Leduc property; it is not clear if this was done only after he had placed the second caveat on the property. [ 30 ] On February 1, 2008, a consent order issued in the family law action postponing Ms. Klyciak ’ s certificate of lis pendens for the purpose of executing the financing. [ 31 ] On March 5, 2008, Klychak told Samchuk that he refused to discharge the caveat Klychak had registered on the Leduc property unless Samchuk discharged the Caveat he had on Devon Property #2.

The letter stated that if Samchuk was alleging a partnership “ then we can litigate the issue with respect to both pieces of property ” , i.e. the Devon and the Leduc property. Klychak ’ s Statement of Claim requesting a change of title to the Leduc property issued on July 23, 2008. [ 32 ] Samchuk ’ s Statement of Claim against Klychak and Anfred & Co. claiming a partnership interest in the Devon feedlot operation issued on September 25, 2008.

b) Procedural [ 33 ] The pleadings and affidavits of records have now been completed in all three actions. Samchuk had brought an application to have Anfred provide its affidavit of records, failing which the company should be held in contempt. The company filed its affidavit of records on the Tuesday before this application was heard. [ 34 ] Klychak has conducted examinations on Samchuk in the Leduc actions - the foreclosure action and the caveat action - in February and September 2009. During the course of these examinations, Samchuk provided 101 undertakings.

The undertakings are substantially complete and were provided on May 13, 2011. [ 35 ] Neither party has conducted examinations in the partnership action. Klychak anticipates that, in addition to himself, Samchuk would also wish to question Mr. Weiss, who is a 1% shareholder of Anfred. 2.

Should the actions be tried together or one after the other? [ 36 ] The three actions should be tried together: the parties and the issues are so inter-related that the interests of justice can only be served by having the same judge assess all three claims at the same time. [ 37 ] Samchuk asks the court to order that all three of the actions be heard together, that is heard by the same judge at the same time even though they are not consolidated. In the alternative, Samchuk asks for an order that the two Leduc actions be heard together.

Klychak opposes any order that the actions be tried together: he claims that he would be seriously prejudiced by such an order since the unjust enrichment action is significantly more advanced than the partnership action. [ 38 ] Rules 3.72 and 1.4(1) and s. 8 of the Judicature Act outline the Court ’ s authority to order actions to be tried at the same time or one after the other.

Case law, including Valerio and Mikisew , outline the types of factors which a court should consider when deciding whether to exercise its power under the Rules and the statute; although individual factors should be considered, the court ’ s overall objective is to ensure that its decision on how the actions should be tried will serve the ends of justice: Alliance Pipeline . [ 39 ] Much of the case law cited by the parties was developed under the former Rules of Court; because of the similarity between the old Rules and the current ones, the existing case law continues to be applicable.

Indeed, Rule 1.4 emphasizes the need to foster just and fair resolutions of disputes in a timely and cost-effective way.

[ 40 ] Here, there are common relationships amongst the parties in all three proceedings; because Anfred is really Klychak ’ s vehicle and it is inconceivable that Anfred would have a different trial strategy than Klychak, for the purposes of this application, Klychak and Anfred can be considered to be the same person. Therefore, the same two parties are common to all three proceedings.

More importantly, despite the chronology relating to the institution of proceedings, the common thread to all three proceedings is the relationship between Samchuk and Klychak when the feedlot operation started; if there was a partnership agreement, the dealings between the parties take on one character whereas the absence of a partnership agreement leaves the dealings between them on an entirely different footing.

That relationship will presumably explain how it came to be that Devon Property #1 was put into Samchuk ’ s name and why Klychak loaned Samchuk essentially the whole of the purchase price on the Leduc property.

It is therefore necessary for the actions to be tried together so that a judge can correctly understand the relationship between Klychak and Samchuk. [ 41 ] With respect, I do not share Samchuk ’ s view that the extent of his farming activities is also a common factor to all three actions; therefore, in my view, this is not a factor which either adds or detracts from the necessity to have all three actions heard together. [ 42 ] Undoubtedly, great efficiency in the disposition of these claims could be achieved if the proceedings are tried together: alternative dispute resolution could only be effective in the circumstances here if all three proceedings are dealt with at the same time. [ 43 ] However, in the situation here, it is even more important that greater fairness can be achieved if the proceedings are tried together since the critical evidence in all three proceedings will consist almost exclusively of the evidence of the Samchuk and of Klychak; Ms.

Klyciak is dead and, at least at this stage of the proceedings, it appears that there are very few contemporary documents that can provide effective evidence on the relationship between Klychak and Samchuk. Naturally, it would be more efficient to have the two principal parties testify only once rather than on three separate occasions; there would be a significant reduction in total trial time.

More importantly, it would be more just to have one assessment of their credibility; if the proceedings are not heard together, there is a real risk that the results in the three proceedings could not be reconciled with one another. For example, Klychak cannot be both an owner and a mortgagee; at a minimum, the foreclosure and caveat actions must be tried together.

Inconsistent decisions should be avoided where possible: Alliance Pipeline Ltd. [ 44 ] Finally, neither of the parties would suffer serious prejudice by having the actions tried at the same time; on the contrary, both parties would achieve efficiencies from having the three actions heard at the same time. [ 45 ] Klychak is obviously correct when he states that there are important differences in the pre-trial preparedness in each of the actions: although pleadings and affidavits of records have been served by each of the parties in all three actions, it is only Klychak who has completed questioning of Samchuk in the foreclosure and caveat actions.

However, it must be remembered in the context of this application, that it was Klychak who is responsible for the very late filing of Anfred ’ s affidavit of records. An impartial observer might agree with Klychak that it was unreasonable of Samchuk to delay the questioning of Klychak until the Anfred affidavit of records was filed; it might be assumed that Anfred ’ s affidavit would mirror Klychak ’ s affidavit. And indeed, that proved to be the case.

However, from Samchuk ’ s perspective, given the problems that had arisen in relation to the non-existent accrued interest, it was not unreasonable to wait until the required affidavit was actually filed before starting the questioning. [ 46 ] In

summary, the benefits of hearing all three actions together vastly outweigh the disadvantages of doing so. Indeed, as Mr. Klychak himself put it, “we can litigate the issue with respect to both pieces of property”. [ 47 ] The parties must now return to case management to work out litigation plans, including, for example, the potential for the trial of any discrete issues that might help to advance an overall resolution of the dispute. [ 48 ] But the real problem here is not how and when the various proceedings should be heard, but whether Mr. Klychak should be required to help defray the costs of Mr.

Samchuk ’ s litigation and, if so, whether it should be by direct contribution - an advance of costs - or by indirect contribution - a postponement of the second caveat on the Leduc property, and I turn to those issues next. 3. Is Samchuk entitled to advance, or interim, costs from Klychak? [ 49 ] Samchuk has not established an entitlement to advance, or interim, costs from Klychak:

he does not meet the first part of the tri-partite test for the award of advance, or interim, costs in commercial litigation. Even if Samchuk has established that his claim - at least for quantum meruit payment - is prima facie meritorious and even if he has established special circumstances based on the misunderstanding concerning accrued interest - he has not established that he genuinely cannot afford to pay for the litigation. [ 50 ] The Supreme Court of Canada began its analysis of advance or interim costs in public interest litigation with the following

summary of the existing, in the context original, law with respect to interim costs in all litigation: The party seeking the order must be impecunious to the extent that, without such an order, that party would be deprived of the opportunity to proceed with the case; the claimant must establish a prima facie case of sufficient merit to warrant pursuit; and there must be special circumstances sufficient to satisfy the court that the case is within the narrow class of cases where this extraordinary exercise of its powers is appropriate. [ 51 ] It is only in public interest litigation that additional, special, considerations come into play.

There are no such considerations here. Therefore, we are left with the original three considerations that apply in the civil context, including ordinary commercial litigation. In other words, Klychak is in error when he states that the third criterion for advance costs is that the issues raised in the litigation are of public importance; consideration of that factor is only required in public interest litigation. Klychak appears to have been misled by a casual linking, in Caron , of those two concepts.

The distinction between special circumstances, and public importance as a special circumstance, is usefully drawn by the SCC in paras. 36 and 38 of Okanagan and by our Court of Appeal in Deans at para. 17 . (

i) Has Samchuk established that he requires advance costs in order to proceed with the litigation? [ 52 ] Samchuk has not provided any evidence that he is impecunious to the extent that he requires an order for advance costs in order to proceed with the litigation. [ 53 ] The high, in some cases prohibitively high, cost of litigation today seriously concerns all those who champion access to justice: we have failed as a society if those who with serious legal positions are excluded from the courts because they cannot afford to be there.

At the same time, however, it would be naive, dangerous and unfair to routinely require financially well off litigants to financially support litigation against themselves. It is therefore reasonable, as a first step, to require a litigant who asks for advance costs to establish that without those costs, they will be unable to proceed with the litigation. [ 54 ] Samchuk has not met the first part of the tri-partite test. Even assuming that Samchuk ’ s pension and property settlement are insufficient to fund major litigation, Samchuk has not adequately explored alternative methods of funding litigation.

Although at the hearing, his current lawyer expressed the opinion that his own firm may not agree to take on representation of Samchuk on a contingency basis, no application for contingency services had been made to the firm. There was no evidence that Samchuk ’ s cause of action had been presented to other firms, perhaps smaller firms, that might be interested in taking on the work on a contingency basis. Klychak ’ s own litigation is apparently being undertaken on a contingency basis.

The apparent rise in the value of Devon Property #1 makes the potential for contingency realistic, even though some law firms might also look for real property security to secure their contingency interest. I note that in L.C. evidence was available to the chambers judge about contingency representation: see para. 87.

Samchuk argued that Klychak had not proved that contingency representation was available; with respect, such an argument reverses the onus. [ 55 ] In addition to services on a contingency basis, another possibility that litigants should be required to explore in Canada today is third party litigation funding: Dugal . It may well be that, in appropriate circumstances, the cost of third party litigation funding is itself a recoverable cost: Do . [ 56 ] Finally, when addressing the issue of impecuniosity, an applicant should be prepared to address the need for financing at various stages of litigation.

Klychak challenges Samchuk ’ s estimate of $150,000.00 as being required to fund the litigation here. However, a real issue is not whether $150,000.00 is too high an estimate of the cost of litigation to conclusion, but what steps need to be done to get to the first potential determination of rights such as the mandatory alternate dispute resolution step. Relatively few of the actions which are initiated in Alberta actually go to trial; most are settled.

Rather than focussing on the cost of completing the litigation, Samchuk should focus on the cost of getting the actions to a stage where settlement is at least possible. In order to achieve that result in an economical and yet fair way, Samchuk should consider whether some mechanisms are more cost efficient than others; for example, whether answers to interrogatories would be as effective as questioning while being considerably less costly.

[ 57 ] In

summary on this point, I am not satisfied from the evidence presented on the application that Samchuk is impecunious within the meaning of the first part of the tripartite test. (ii) Prima facie meritorious case [ 58 ] Although it is not possible at this stage of proceedings to determine if Samchuk has a meritorious partnership claim, it is possible to say that, prima facie , he has meritorious claim based in quantum meruit .

Although there is apparently no evidence of time sheets or daytimers or independent recording of hours spent, the evidence presented on the motion establishes that Samchuk did work on the feedlot operation. Although the size of his claim is unclear, the existence of a claim is clear.

Indeed, the very placing of Devon Property #1 in Samchuk ’ s name is some evidence to support Samchuk ’ s claim of a special relationship between Klychak and himself. (iii) Special circumstances [ 59 ] The special circumstances required in civil litigation include a wide range of possibilities, starting from the entitlement and financial dependence of matrimonial property litigation. Here, the special circumstances include the features relating to the misunderstanding that occurred between the parties that led to the transfer by Samchuk to Klychak of Devon Property #1.

Neither Klychak ’ s lawyer nor Samchuk ’ s lawyer would have deliberately ignored the wording of the promissory note in facilitating a transfer of property worth $725,000.00; nevertheless, the transfer occurred. This is a special circumstance which may be considered to be somewhat analogous to the type of special circumstance found by the Court of Appeal in Deans at para. 45 . (iv) Failure to meet all three parts of the test [ 60 ] By failing to meet the first part of the test, Samchuk has failed to meet the common law test for advance costs. 4.

Is Samchuk entitled to a postponement of Klychak ’ s second caveat? [ 61 ] Samchuk has established that he is entitled to an order requiring Klychak to postpone his second caveat on the Leduc property to allow Samchuk to obtaining financing, both to pay off Klychak ’ s note and to fund the litigation, based on his interest in that property. [ 62 ] Klychak acknowledges that the court has the authority to order the postponement of a caveat pursuant to s. 142 of the Land Titles Act . [ 63 ] The real issue in this area is, therefore, whether the court should exercise the authority it possesses to require the postponement of the caveat. [ 64 ] In concluding that the authority should be exercised, I have taken the following factors into account: - Klychak ’ s two positions, that he is both a mortgagee and an owner of the Leduc property, cannot stand together.

While the law is comfortable in dealing with two, opposite, positions advanced by the same litigant, those two positions should be advanced in one proceeding - relating as it were to one overall claim which might have two different routes - to prevent inconsistent verdicts. That one claim should be represented by one caveat, not by two, especially if the second caveat unfairly hampers the apparent legal owner of the property with respect to dealings with the property; - Klychak does not advance any independent support for his claim in constructive trust or unjust enrichment.

In this context, the court recalls Klychak ’ s previously serious contention that there was accrued interest owing on the promissory note; all of Klychak ’ s seriously offered claims clearly cannot be taken at face value. If Klychak were able to advance any evidence supporting his claim in constructive trust or unjust enrichment, even to the stage where the court could say that he had a prima facie case for unjust enrichment, the court might well conclude that it was inappropriate to require the postponement of the caveat. But that is not the situation here.

[ 65 ] In opposing any suggestion that his second caveat should be postponed, Klychak argues that Samchuk ’ s impecuniosity causes problems: if he cannot pay off the financing, then Klychak will be entitled to foreclose. The weakness of that argument is that the evidence before the court on this motion is to the effect that Samchuk had available sufficient financing to pay off the Klychak note and would have done so had it not been for Klychak ’ s second caveat which Klychak refused to postpone. [ 66 ] In

summary, the court orders Klychak to postpone his second caveat on the Leduc property. 5. Contempt in relation to Anfred ’ s late filing of its affidavit of records [ 67 ] In all of the circumstances, I do not impose any penalty on Anfred for the late filing of its affidavit of records. 6. Costs [ 68 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. Heard on the 4 th and 8 th days of November, 2011. Dated at the City of Edmonton, Alberta this 2 nd day of February, 2012. J.B. Veit J.C.Q.B.A. Appearances: Chad C. Bowie, Snyder & Associates LLP for Mr. Klychak Jeremy L. Taylor, Field LLP for Mr. Samchuk