Madore v Madore, 2016 ABQB 146

Court of Queen ’ s Bench of Alberta Citation: Madore v Madore, 2016 ABQB 146 Date: 20160314 Docket: 4801 153461 Registry: Calgary Between: Angus Blair Madore Plaintiff/Respondent - and - Mary Jean Madore Defendant/Applicant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M. David Gates _______________________________________________________ Introduction and Overview [ 1 ] The Applicant, Mary Jean Madore (“Ms. Madore”) seeks an order dismissing the matrimonial property action instituted by the Respondent, Angus Blair Madore’s (“Mr. Madore”), on the basis of long delay. In the alternative, she says that the Trustee in

Bankruptcy for the Respondent has discharged any claim that the Respondent had in the matrimonial property. In addition, Ms. Madore seeks an order discharging the Certificates of Lis Pendens registered by the Respondent against the property. [ 2 ] In the alternative, the Applicant asks this court to make a procedural order advancing the action to a

summary trial. She seeks security for costs relative to any such

summary trial ordered and an order that a failure to comply with the procedural order will result in the dismissal of the Respondent’s action. [ 3 ] This application was heard by me by way of a Special Chambers Application on January 12, 2016. At the conclusion of oral argument, and for reasons more fully discussed below, I adjourned the matter to January 22, 2016, at which time I allowed the Respondent’s counsel to file a supplementary brief by February 12, 2016. Counsel for the Applicant was given until February 26, 2016, to file any response submissions that she wished to place before the court.

Both parties filed briefs. [ 4 ] These are my reasons for decision. Facts [ 5 ] The parties commenced cohabitation in 1990, and married on December 31, 1995. They separated on October 15, 2011, following a 15 year marriage and 20 year relationship. They were divorced on January 6, 2016. [ 6 ] Both parties are currently 61 years of age. [ 7 ] There was one child of the marriage, a son born on December 11, 1991. He is currently 23 years of age.

He is financially dependent on the Applicant due to severe migraine headaches. [ 8 ] The Respondent moved to Nova Scotia upon separation and filed for bankruptcy shortly thereafter. In the documents filed in support of his bankruptcy, the Respondent made no reference to any interest he might have in any real property in Alberta. [ 9 ] The Respondent previously owned a successful hardwood flooring company in Calgary, but stopped taking work approximately one year prior to separation.

There is no evidence that he has been employed since moving to Nova Scotia. [ 10 ] The Applicant was a stay-at-home mother until October 2010, at which time she went back to school to upgrade her education. She began work in the medical field in April 2011, but accepted a higher paying administrative type position in a family-run business at the time of separation in order to support herself and the child. [ 11 ] The Respondent has paid no child or spousal support since the date of separation.

As a result of his bankruptcy, he avoided paying any portion of the matrimonial debts, a total of $99,107.12 arising from a line of credit and credit card debt. The Applicant has incurred significant legal fees in responding to the matrimonial property litigation. [ 12 ] There were very few matrimonial assets at time of separation. Both parties retained individual RRSPs of an approximate value of $13,000. The Applicant retained his tools worth approximately $65,000, as well as a truck worth approximately $1,000.

The Respondent retained a vehicle of little, if any, value, as well as three horses valued at approximately $1,000 each. [ 13 ] In 2002, the Applicant’s mother gifted a quarter

section of land to the Applicant. The Applicant used money saved prior to her relationship with the Respondent to build a home on the property. A day prior to separation, the Applicant’s mother made a further gift of two, quarter sections of land, both in the sole name of the Applicant. The Applicant has maintained throughout that all three parcels of land are exempt property under the Matrimonial Property Act , R.S.A. c. M-8. The Respondent contends, however that the one of the quarter sections of land, the “Home Quarter” was registered in the Applicant’s name in 2002, but actually given to both of them in 1997.

In his affidavit sworn August 28, 2013, he states that he made financial contributions to the construction of the home built on the Home Quarter. [ 14 ] On October 18, 2012, the Respondent filed for bankruptcy. On December 18, 2012, the Trustee in Bankruptcy, Price Waterhouse Cooper (“PWC”) advised the Applicant’s previous counsel that any property coming to the Respondent pursuant to his Matrimonial Property Act claim was payable to PWC for distribution to his creditors. [ 15 ] The Applicant’s counsel entered into negotiations with PWC with respect to the Matrimonial Property Act claim.

Counsel received two letters from PWC (June 4, 2013, August 15, 2014) releasing any claim by the Respondent to the three, quarter-sections of land on the basis that they were exempt property. PWC refused to sign any documentation releasing the claim and directed the Applicant’s lawyer to obtain the Respondent’s agreement directly.

While the Respondent’s counsel initially agreed to sign the releases, they were never actually signed by either the Respondent or his counsel. [ 16 ] By way of letter dated November 13, 2015, PWC’s solicitors wrote to counsel for both parties to provide clarification relative to the June 4, 2013, and August 15, 2014, correspondence from PWC. As such, the letter stated that when PWC indicated that it was releasing and disclaiming any interest in the described real estate, such release was in favour of the bankrupt.

History of the Proceedings [ 17 ] On August 22, 2012, the Respondent filed a Statement of Claim for Divorce and Division of Matrimonial Property, as well as a Notice to Disclose. The following day, August 23, 2012, he filed Certificates of Lis Pendens on two of the three quarter sections of land, namely Meridian 5 Range 5 township 24

Section 20 NE Corner, and Meridian 5 Range 5 Township 24

Section 20 NW Quarter. [ 18 ] On August 24, 2012, the Applicant filed a Notice to Disclose application. On October 9, 2012, she filed a Statement of Defence and Counterclaim for Divorce and Division of Matrimonial property. According to the Applicant’s affidavit sworn May 25, 2015, the Respondent has never provided complete financial disclosure despite frequent requests to do so. The Applicant also swears that she has provided complete financial disclosure to the Respondent and his counsel on three separate occasions.

[ 19 ] On March 28, 2013, the Respondent’s then counsel, David Vallance, filed a Notice of Withdrawal. [ 20 ] On July 16, 2013, the Applicant’s previous counsel filed an application returnable on August 20, 2013, to have the Respondent’s matrimonial property action set down for trial.

The parties then counsel were unable to reach an agreement on this issue and the matter was never addressed in court. [ 21 ] On August 14, 2013, the Applicant filed an application seeking to sever the divorce from corollary relief and allowing the Applicant to proceed with a desk divorce. [ 22 ] On September 5, 2013, the Applicant was served with a Notice to Produce by the Respondent’s current counsel. On October 21, 2014, she provided a full Affidavit of Records. The Applicant filed a similar Notice to Produce on September 10, 2013.

The Respondent ultimately responded by filing an Affidavit of Records on December 9, 2015, seven months after the filing of the within application. [ 23 ] On June 20, 2014, the Applicant was served with a Notice of Appointment for Questioning set for July 17, 2014. The questioning was adjourned on two occasions, first to September 9, 2014 and then to October 16, 2014, due to the unavailability of the Applicant’s then counsel.

Ultimately, both counsel agreed that both parties would be questioned on October 16 & 17, 2014. [ 24 ] The Respondent was served with a Notice of Appointment for Questioning on October 17, 2014, and provided conduct money. The questioning of the Applicant was set for October 16, 2014, but she failed to attend due to a multi-day power outage affecting the downtown core of Calgary. The Respondent also failed to attend for questioning on October 17, 2014.

The Respondent’s counsel advised that the conduct money was insufficient, but declined a suggestion that the parties attend before a Master to set the appropriate conduct money. Both parties obtained Certificates of Non-Attendance relative to the opposing party. [ 25 ] On August 14, 2014, the Applicant’s previous counsel filed an application to sever the divorce from corollary relief to permit the Applicant to proceed with a desk divorce. The Applicant, though her then counsel, believed that the Respondent was prepared to consent to this application.

A draft order was sent to the Respondent’s counsel but never returned despite written requests dated October 17, 2014, November 2014, and again in February 2015. [ 26 ] On May 15, 2015, the Respondent filed an application returnable May 29, 2015, seeking an order holding the Applicant in civil contempt for failing to attend questioning on October 16, 2014, and an order compelling her to attend on a date and location specified by the Court.

While this application was filed on May 15, 2015, it does not appear to have actually been served on the Applicant until May 27, 2015. [ 27 ] On May 22, 2015, the Applicant’s current counsel, Ms.

Stephen, filed a Notice of Change of Representation. [ 28 ] On May 26, 2015, the Applicant filed the within application seeking, amongst other things, an order dismissing the Respondent’s matrimonial property action for long delay, an order severing the divorce from corollary relief, an order directing the Registrar of Land Titles to discharge the Certificates of Lis Pendens registered by the Respondent and, alternatively, a procedural order to advance this action to trial.

This application was heard by Campbell J on June 18, 2015, who severed the divorce from corollary relief and directed that all remaining matters be heard in a Domestic Special Application on January 12, 2016. [ 29 ] There is no evidence before me as to what, if anything, transpired in court on the return date of this application, May 29, 2015. When the Applicant’s May 26, 2012 application was addressed by Campbell J on June 18, 2015, the resulting order made no reference whatsoever to this seemingly outstanding application brought by the Respondent.

I note that the Respondent’s current counsel signed the order prepared following the June 18, 2015 appearance. [ 30 ] On July 15, 2015, the Respondent filed a Statement of Defence to Counterclaim, following the filing of the application to dismiss the action for long delay. On the same date, the Respondent filed a Certificate of Lis Pendens on a parcel of land described as Meridian Road 5, Range 6, Township 25,

Section 1 Quarter South East. [ 31 ] On December 9, 2015, the Respondent filed his Affidavit of Records. The Law [ 32 ] The Alberta Rules of Court address the issue of delay in the conduct of an action in Rules 4.31and 4.33 as follows: 4.31

(1) If delay occurs in an action, on application the Court may (

a) dismiss all or any part of a claim if the Court determines that the delay has resulted in significant prejudice to a party, or (

b) make a procedural order or any other order provided for by these rules.

(2) Where, in determining an application under this rule, the Court finds that the delay in an action is inordinate and inexcusable, that delay is presumed to have resulted in significant prejudice to the party that brought the application. 4.33

(1) If 3 or more years has passed without a significant advance in an action, the Court, on application, must dismiss the action as against the applicant, unless (

a) the parties to the application expressly agreed to the delay, (

b) the action has been stayed or adjourned by order, an order has extended the time for advancing the action, or the delay is provided for in a litigation plan, (

c) the applicant did not provide a substantive response within 2 months after receiving a written proposal by the respondent that the

action not be advanced until more than 3 years after the last significant advance in the action, or (

d) an application has been filed or proceedings have been taken since the delay and the applicant has participated in them for a purpose and to the extent that, in the opinion of the Court, warrants the action continuing.

(2) If the Court refuses an application to dismiss an action for delay, the Court may still make whatever procedural order it considers appropriate. [ 33 ] In Kahlon v. Cheecham , 2015 ABQB 203 , Master Mason held that an application brought under Rule 4.31 involves three steps. At para. 52, she held: “The court first determines whether the delay is inordinate. It then decides whether the delay is inexcusable. If these two criteria are met, the presumption of significant prejudice is engaged.” She went on, however, to explain that the so-called presumption of significant prejudice requires some qualification.

Specifically, at para. 56, she referred to the decision of the Alberta Court of Appeal in Volk v. 331323 Alta. Ltd. , 1998 ABCA 54 , and explained that “the applicant must still establish a likelihood of serious prejudice before the action will be struck” if the presumption is rebutted by evidence that raises a legitimate doubt as to the existence of serious prejudice. (para. 56). See also Willard v. Compton Petroleum Corporation , 2015 ABQB 766 . [ 34 ] I note, and agree with, the conclusion reached by Shelley J in Huerto v Canniff , 2014 ABQB 534 , and Crighton J in Steparyk v.

Alberta , 2014 ABQB 367 , that the foundational rules, specifically Rule 1.2, are relevant to the proper

interpretation and application of Rules 4.31 and 4.33. As such, Rule 1.2 signals the importance of moving legal disputes forward in a timely and cost-effective way. See also Envision Edmonton Opportunities Society v. Edmonton (City) , 2011 ABQB 29 , at para. 47 . [ 35 ] The decision of Shelley J in Huerto contains a very useful, and frequently cited, overview and analysis of the principles to be applied when dealing with applications for long delay.

Of relevance to this particular application, she held (at para. 26) that: Inordinate delay is evaluated in the context of the litigation in question : Montreal Trust Co. of Canada v Talcorp Ltd. , at para 67. A finding of inordinate delay leads to the inference that delay is also inexcusable: Montreal Trust Co. of Canada, at para 67. This presumption can be rebutted by a credible excuse: Kuziw v. Kucheran Estate , 2000 ABCA 2256 at para. 37 , 39. [ 36 ] In Raavin Holdings Ltd. v.

Ghitter , 2008 ABCA 208 , the Court of Appeal addressed the issue of presumed prejudice in relation to former Rule 244(4), referring to its earlier decision in Volk . At para. 37, the Court stated: In Volk , the court went on to discuss Sub-Rule 244(4) and noted that where the court finds inordinate delay, that delay itself will be prima facie evidence of serious prejudice sufficient to satisfy the applicant’s burden of proof unless other evidence exists that raises a legitimate doubt about the existence of that prejudice that can be attributed to the delay.

Speaking of this presumption, the court stated, at para. 21: The applicant must still establish a likelihood of serious prejudice before the action will be struck under this rule. The presumption may lead to dismissal unless there is evidence that at least raises a legitimate doubt about the existence of serious prejudice to the applicant attributable to the delay.

In the absence of such evidence, the delay alone is sufficient proof of serious prejudice to warrant dismissal for want of prosecution. [ 37 ] It seems clear from the various cases which have considered this Rule, as well as the predecessor Rule, that the court’s focus in these types of applications involves an examination of the conduct of the litigation and, specifically, whether the actions of the parties “mov[e] the litigation closer to trial in a meaningful way”: Morasch v. Alberta , 2000 ABCA 24 , at para. 6 and 8 .

This examination requires a functional approach that focuses on substance, as opposed to form, and, as such, examines the nature, value, importance and quality of the action taken: St Jean Estate v. Edmonton (City) , 2014 ABQB 47 , at para. 17-18 ; Phillips v. Sowan , 2007 ABCA 101 ; Huerto v. Canniff , at para. 23, 26 ; Le v. 1055168 Alberta Ltd. 2013 ABQB 431 . [ 38 ] In Donnelly v. Brick Warehouse Corp ., 2013 ABQB 621 , Yamauchi J. set out a very helpful list of steps that do and do not advance an action. I would specifically refer to the following matters which he found do advance an action:

a) Filing an affidavit of documents that sets out all of the relevant documents: Matthews v. Great-West Life Assurance Co. , 2002 ABQB 297 ; Heikkila v. Alberta (Workers’ compensation Board Appeals Commission) , 2011 ABCA 87 . He also referred to other matters which do not advance an action, including:

b) Setting a date for examinations for discovery (questioning): Co-Operators Life Insurance Co. v. Rollheiser , 1998 ABQB 874 at para 6 ;

c) A change of legal representation for the plaintiffs: Calliou v. Bouchard , 2006 ABQB 925 ; Riviera Developments Inc. v. Midd Financial Corp ., 2002 ABQB 853 at para. 22 ;

d) Commencing a step that is not completed: Morasch v. Alberta , 2000 ABCA 24 , at paras 6-7 . Analysis [ 39 ] At the outset, it should be noted that the only application before me is Ms. Madore’s application filed on May 26, 2015.

The order of Campbell J of June 18, 2015, granted some relief in terms of severing the divorce from corollary relief, but she set the balance of the application over for determination during this special application. [ 40 ] The Respondent did not produce either a separate order or a transcript relating to the June 18, 2015 proceedings to support his contention that his May 15, 2015 application was to be heard during the Special Chambers Application set for January 12, 2016.

Moreover, the Respondent also failed to file a concise letter or, indeed, any materials in support of this application, as clearly required by the Rules. Under the circumstances, I am not prepared to accept the Respondent’s contention that the court’s procedure card accurately

reflects the decision of the Court on June 18, 2015. It follows that I do not agree with the Respondent’s suggestion in his written materials that his own application filed on May 15, 2015 is properly before me or, indeed, that Ms. Madore’s May 26, 2015 application is a cross-application filed in response.

Should the Action be Dismissed for Long Delay? [ 41 ] The period of delay to be assessed in this case is two years and ten months, running from the date on which the Respondent filed his Matrimonial Property Act claim, August 22, 2012, to the date on which the Applicant filed the within application, June 10, 2015. [ 42 ] The Applicant concedes that the facts of this particular case do not bring her within Rule 4.33 so as to require the Court to dismiss the application on account of long delay.

Rather, the Applicant urges the Court to exercise its discretion under Rule 4.31 on the basis that the delay has resulted in significant prejudice to the party. While I agree that this application falls to be considered under Rule 4.31, I do take into consideration the fact that this is a situation where almost three years have elapsed. [ 43 ] Rule 4.31 requires the court to consider whether the delay is inordinate and whether it is inexcusable.

Was the Delay Inordinate? [ 44 ] As stated by Master Mason in Kahlon , (at para. 53 ): “Inordinate delay is delay that is in excess of what is reasonable, having regard to the nature of the issues in the action, and the circumstances of the case. The onus of establishing inordinate delay is on the applicant and the time is measured from the last thing that materially advanced the action”: Willard v. Compton Petroleum Corp , 2015 ABQB 8 , citing Kuziw v. Kucheran Estate , 2000 ABCA 226 at para. 31-33 ”. [ 45 ] In this case, it is clear that the Respondent has not pursued his action with great dispatch.

After filing the Matrimonial Property Act claim on August 22, 2012, the Respondent then filed a Notice to Produce on September 24, 2012. However, this application was adjourned on consent on October 2, 2012, and October 18, 2012, and then adjourned sine die on November 1, 2012. A further Notice to Produce was served on the Applicant on September 5, 2013, which was responded to by the filing of a full Affidavit of Records on October 21, 2014. [ 46 ] The Rules of Court provide as follows: 12.38(1) Despite rule 5.5, this rule applies in the following proceedings: (

b) a proceeding that is both a proceeding under the Divorce Act (Canada) and a proceeding under the Matrimonial Property Act ; (

c) a proceeding under the Matrimonial Property Act ;

(2) In order to compel production of an affidavit of records, a party must file and serve a notice to produce an affidavit of records in Form FL 15 on the party from whom the affidavit of records is required.

(3) In the proceedings to which this rule applies, every party must serve an affidavit of records on every other party (

a) within 3 months after the notice referred to in sub rule (2) is served, (

b) in the case of the party serving the notice, within 3 months after service of the first notice. [ 47 ] In this instance, it is clear that neither party complied with this Rule. The Applicant’s Affidavit of Records was filed ten months late, whereas the Respondent’s Affidavit of Records was filed more than two years late. I note in this regard that the Applicant challenges the sufficiency of the Respondent’s Affidavit of Records, ultimately filed on December 9, 2015, in her Reply Submissions filed February 25, 2015, describing them it as ‘woefully inadequate’.

Similarly, in his affidavit sworn June 10, 2015, the Respondent challenges the Applicant’s Affidavit of Records, alleging that the materials do not contain “one document in the 3 inch binder that comes close to addressing the Applicant’s claim that she is entitled to a $700,000 exemption in the matrimonial home.” [ 48 ] While the filing of an affidavit of documents that sets out all of the relevant documents is a step that can move an action closer to trial, I am not satisfied that either party has actually completed this step in this instance.

I accept the Applicant’s description of the Respondent’s Affidavit of Records as being woefully inadequate. Moreover, I agree that the timing of the filing of his Affidavit of Records, some 7 months after having been served with this application to dismiss for long delay, leads to the conclusion that this “step” should not form part of my analysis. See Trout Lake Store Inc. v.

Canadian Imperial Bank of Commerce , 2003 ABCA 259 . [ 49 ] Based on the evidence before me, I am satisfied that there is some merit to the Respondent’s contention that the Applicant’s Affidavit of Records is also incomplete in terms of providing evidence in support of her claim to an exemption under the Matrimonial Property Act .

However, other than to voice concern about the adequacy of the Applicant’s production, the Respondent, the Plaintiff in this action, has taken no concrete steps to address his apparent concerns in this regard. [ 50 ] Under the circumstances, I am not satisfied that the Respondent’s September 2013, Notice to Produce was a significant step that moved the litigation forward in a meaningful way.

The timing and quality of both the Applicant’s and the Respondent’s consequential filing of Affidavit of Records does not, in my view, alter the proper characterization of this step. [ 51 ] In his Concise Letter filed February 12, 2016, the Respondent points to various exchanges or discussions between counsel regarding the scheduling of questioning, culminating in the service on the Applicant of a Notice of Appointment for Questioning requiring her to attend on July 17, 2014.

The Respondent says that this step, together with other steps, were “necessary steps to progress the litigation.” [ 52 ] At the Applicant’s request, the questioning of the Applicant was adjourned from July 17, 2014, first to September 9, 2014,

and then to October 16, 2014, with the Respondent to be questioned the following day, October 17, 2014. Unfortunately, due to circumstances beyond the control of the parties, a power outage affecting much of the downtown core of Calgary prevented the questioning from taking place. While both parties have produced Certificates of Non-Attendance, I attach little significance to same.

In my view, this was an unfortunate situation created through no fault of either of the parties. [ 53 ] While it seems clear that there was further discussion between counsel after October 17, 2014, as to how to proceed, no questioning has yet taken place. Under the circumstances, it was incumbent on both of the parties to take steps to reschedule the questioning. In terms of the Applicant’s questioning, absent agreement between the parties, the Respondent’s remedy was to bring a court application compelling the Applicant’s attendance. Indeed, he did file such an application on May 15, 2015, some 7 months later.

As previously indicated, this application does not appear to have ever been addressed in court. [ 54 ] The service of a Notice of Appointment for Questioning and, indeed, an agreement reached between counsel fixing a date for such questioning to take place, is not, without more, a significant step that moves the litigation forward. While it is a necessary step to the actual conduct and completion of questioning, it is merely a preliminary step and not, in and of itself, a significant step: Co- Operators Life Insurance Co. v.

Rollheiser . [ 55 ] The Respondent describes both the filing of a Notice to Produce and the filing and service of a Notice to Attend as “necessary steps to progress the litigation”. While they may well have been necessary steps, this is the wrong standard to be applied when considering an application for long delay under Rule 4.31. In my view, this sets the bar too low in terms of a Rule 4.31 analysis. Rather, the appropriate test is whether the action has moved the action closer to trial in a meaningful way.

For the reasons set out above, I am of the view that none of the actions relied upon by the Respondent meet this requirement. [ 56 ] In Kuziw v. Kucheran Estate , 2000 ABCA 226 , Wittmann J.A. (as he then was) held (at para. 29) that “inordinate delay is to be determined in light of all the circumstances of a particular case.” Quoting Buckley L.J. in Wallersteiner v.

Moir , [1974] 3 All E.R. 217 (C.A.) , he found that “using the word [inordinate] to mean much in excess of what was reasonable having regard to the nature of the issues in the action and the circumstances of the case.” [ 57 ] In my view, this is a relatively straight-forward Matrimonial Property Act action that should have moved relatively quickly through the standard litigation processes: completion of pleadings; production of Affidavits of Records; questioning; responses to undertakings; exchange of any required expert reports; and setting the matter down for trial.

While I acknowledge that the Respondent’s bankruptcy created a complication, it is apparent that as of June 2013, possibly sooner, the Trustee in Bankruptcy made it clear that the Respondent was free to pursue his Matrimonial Property Act action without any involvement on the part of the Trustee. Other than the completion of the pleadings, none of the other litigation steps described above have been completed. Indeed, some of those steps have not even been commenced notwithstanding the passage of two months shy of three years.

In my view, this is in excess of what was reasonable having regard to the nature of the action and the overall circumstances of the case. I find that the delay was inordinate. Was the Delay Inexcusable? [ 58 ] In Kuziw , Wittmann J.A. held that the onus rests on the delaying party to “make out a credible excuse” for the delay (at para. 37). He then goes on to quote Salmon L.J. in Allen v.

Sir Alfred McAlpine & Sons Ltd. , [1968] 1 All E.R. 543 (C.A.) that “until a credible excuse is made out, the natural inference would be that it is inexcusable” (at para. 39). [ 59 ] In this instance, the Respondent appears to attribute the delay to the actions of the Applicant. In his Concise Letter filed February 12, 2016, he cites the Applicant’s deliberate refusal to be questioned or provide relevant documents supporting her claimed exemptions under the Matrimonial Property Act , as the basis for the overall delay in moving the action forward.

He also suggests that the Applicant should not be entitled to rely on “her failure to comply with the litigation process”. The Respondent’s affidavit sworn June 10, 2015 contains a similar allegation. [ 60 ] I am not satisfied that any of the explanations provided by the Respondent amount to a credible excuse for the inordinate delay. Any concerns relative to the adequacy of the Applicant’s document production or the Applicant’s willingness to submit to questioning could have been easily addressed through an application to the court.

No such application was ever taken, save for the May 15, 2015, application filed to compel the Applicant to submit to questioning. As previously discussed, the Respondent does not appear to have pursued this application with any diligence. In the absence of a credible excuse, I am satisfied that the delay in this instance is inexcusable. Has the Delay Resulted in Significant Prejudice? [ 61 ] The Respondent has not advanced any evidence or argument that raises a legitimate doubt regarding the existence of significant prejudice.

Indeed, there is no mention of the issue in either of his Concise Letters or in any of his filed affidavits. In the result, I am satisfied that the Applicant is entitled to rely on the presumption set out in Rule 4.31(2). Conclusion [ 62 ] I am satisfied that the delay in this instance was inordinate and inexcusable. The Applicant is entitled to rely on the presumption that the delay has resulted in significant prejudice. The application to dismiss for long delay is, accordingly, granted.

Did the Trustee in Bankruptcy discharge any claim the Respondent had in the matrimonial property? [ 63 ] The Applicant raises a second argument in support of her application to dismiss the Respondent’s action. In light of my conclusion that this action is dismissed for long delay, it is not strictly necessary to address this second argument.

However, given the importance that both parties attribute to this issue, I propose to deal with the matter. [ 64 ] The position of the Applicant, briefly stated, is that she concluded a settlement with PWC, acting on behalf of the Respondent, relative to the Respondent’s Matrimonial Property Act claim to the three, quarter sections. As such, she says that PWC

accepted her position that all three properties were exempt property under the Act . The Respondent, on the other hand, says that a proper reading of the correspondence received from the Trustee reveals that the Trustee was releasing its interest in the property and permitting the Respondent to pursue his claim on his own behalf. [ 65 ] I do not share the Applicant’s view as to the legal effect of the content of PWC’s letters dated June 4, 2013, August 15, 2014, and November 13, 2015. [ 66 ] I would refer to the applicable provisions of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 : 30.

(1) The trustee may, with the permission of the inspectors, do any or all of the following things: (

d) bring, institute or defend any action or other legal proceeding relating to the property of the bankrupt; (

h) compromise and settle any debts owing to the bankrupt; (

i) compromise any claim made by or against the estate; (emphasis added) [ 67 ] I note that this provision is permissive, i.e. that the trustee may, not must, do any and/or all of these enumerated acts. [ 68 ] While I acknowledge the possible confusion created by the language used by PWC in its letters, I do not agree with the Applicant’s contention that either letter evidenced a settlement of the Respondent’s Matrimonial Property Act litigation in her favour.

In my view, this is clear from a proper reading of the two letters, particularly when read in conjunction with the letter dated November 13, 2015, prepared by the solicitors for PWC. [ 69 ] Dealing first with the June 4, 2013, letter, it is noteworthy that PWC states that “[I]t is not necessary to send us the settlement documents, any negotiations with respect to the separation can be done with the bankrupt directly.” Again, I acknowledge that this may, at first blush, seem to be at odds with the earlier statement releasing and disclaiming “any and all right, title or interest in the ‘home quarter’ legally described as SE1-25-6W5M in the Municipality of Big Horn, Alberta and the two quarter sections of land.” The August 2014 communication again confirms the earlier release and disclaimer, but goes on to state that any non-exempt, surplus equity that may be realized on the property will be payable to PWC as trustees, and, subsequently, that “any recovery on the action is not to be disbursed prior to instruction from the Trustee." [ 70 ] The letter subsequently prepared by the solicitors for PWC dated November 13, 2015, explains the language used in the earlier communication.

In particular, I note that PWC’s counsel stated that: “…that release and disclaimer was in favour of the bankrupt, Angus Blair Madore.” What I take this to mean is that the PWC, as the Trustee in Bankruptcy for the Respondent, elected not to pursue this matrimonial property litigation on behalf of the Bankrupt but, at the same time, did not purport to “settle” the litigation with the Applicant. In my view, the Trustee’s refusal to execute settlement documents and its continued expression of a right to any surplus equity realized on the property confirms this

interpretation. While I agree that the Trustee was empowered by s. 30 (1) of the Bankruptcy and Insolvency Act to pursue the Respondent’s claim, it elected not to do so while, at the same time, safeguarding its right to any equity that might be realized by the Respondent if he elected to pursue the claim himself. [ 71 ] For the foregoing reasons, I find that this Applicant is not entitled to a dismissal of the action on this basis. [ 72 ] In light of my finding that this action is dismissed for long delay, it is unnecessary for me to consider the Applicant’s alternative request for relief, namely the making of a procedural order setting this matter down for

summary trial. Likewise, it is unnecessary for me to consider her related request that I require the Respondent to post security for costs in the amount of $50,000. But for my conclusion that this action must be dismissed for long delay, I would have made a procedural order, as requested, fixing the dates for the completion of document production, setting dates for the completion of questioning and the fulfillment of undertakings, and setting the matter down for trial. I am also satisfied that the Applicant has established the necessary basis for the Court to require the Respondent to post security for costs.

Conclusion [ 73 ] The application is granted. The action is dismissed for long delay, pursuant to Rule 4.31.The Registrar of Land Titles is directed to discharge the Certificates of Lis Pendens filed by the Respondent against the three properties. Costs [ 74 ] The Applicant is entitled to her costs.

In my view, the Applicant is entitled to some enhanced costs, taking into consideration that the actions of the Respondent have unnecessarily increased the complexity of this matter and required the Applicant to take additional steps in furtherance of her claim. [ 75 ] The Respondent filed his concise letter on December 3, 2015.

In his response to the Applicant’s concise letter, the Respondent addressed only one of the three issues raised by the Applicant in her May 26, 2015, application, namely that the Trustee in Bankruptcy, acting in the place of the Respondent, had previously settled the matrimonial property litigation by releasing any rights, title or interest in the three, quarter sections of land. As such, the Respondent failed to address the first issue raised by the Applicant, namely that the action should be dismissed for long delay pursuant to Rule 4.31.

In addition, the Respondent failed to make any submissions addressing the alternative remedy sought by the Applicant, namely a procedural order setting the matter down for trial and requiring the Respondent to post security for costs.

[ 76 ] I allowed the Respondent a further opportunity to address these other issues through the submission of a further concise letter. At the same time, I allowed the Applicant to file a second response letter. The Respondent did file further written submissions on February 12, 2016. The Applicant filed materials by way of a response on February 25, 2016. I would note that half of the Respondent’s second concise letter simply re-stated the argument already set forth in his first concise letter. Heard on the 12 th day of January, 2016 Dated at the City of Calgary, Alberta this 14 th day of March, 2016. M.

David Gates J.C.Q.B.A. Appearances: Sean O'Neil for the Plaintiff/Respondent Laurie Stephen, Kirk Montoute LLP for the Defendant/Applicant