Briggs v Orlowski, 2016 ABQB 476

Court of Queen’s Bench of Alberta Citation: Briggs v Orlowski, 2016 ABQB 476 Date: 20160829 Docket: 1403 02735 Registry: Edmonton Between: Shawn Briggs Plaintiff - and - Virginia Orlowski Defendant _______________________________________________________ Reasons for Judgment of W.S. Schlosser , a Master of the Court of Queen’s Bench of Alberta _______________________________________________________ [ 1 ] This is a rule 7.1 application for the determination of a limitations issue.

The application raises the interesting question (amongst others) of whether the perceived condition of the defendant can have the effect of suspending the limitation period to start an action. [ 2 ] The Plaintiff and the Defendant were adult interdependent partners. Their 10 year relationship ended February 1, 2009. If they had been married, sections 5 and 6 of the Matrimonial Property Act, RSA 2000, c M-8, would detail the time for bringing an action for the division of matrimonial property. Since they were not married,

section 10 of the Adult Interdependent Relationships Act , SA 2002, c A-4.5 and

section 3 of the Limitations Act, RSA 2000 c L-12 provide the time limits. [ 3 ] Briggs’ claim for settlement of the quasi-matrimonial property is based on a remedial constructive trust. It is caught by

section 3 of the Limitations Act which provides: [ 4 ] 3(1) Subject to subsections (1.1) and (1.2) and

section 11, if a claimant does not seek a remedial order within

(a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known, (

i) that the injury for which the claimant seeks a remedial order had occurred, (ii) that the injury was attributable to conduct of the defendant, and (iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding, or (b) 10 years after the claim arose, whichever period expires first, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim. [ 5 ] Adult interdependent partners become former adult interdependent partners after they have (for example) lived separate and apart for more than one year.

Section 10(1) provides: 10(1) Unless another enactment provides otherwise, an adult interdependent partner becomes the former adult interdependent partner of another person when the earliest of the following occurs: (

b) the adult interdependent partners live separate and apart for more than one year and one or both of the adult interdependent partners intend that the adult interdependent relationship not continue; (emphasis added) [ 6 ] This is a time limitation with fuzzy boundaries. [ 7 ] If the Adult Interdependent Relationship Act is intended to parallel the Matrimonial Property Act in terms of relief that relates to quasi-matrimonial property, the time for a remedial constructive trust claim should begin, at the latest, when the relationship is over. Arguably, it is the end of the relationship, formal or otherwise, or the presence of one or the other factors in

section 10 , that first puts

section 3 of the Limitations Act into operation. In some circumstances, the time will run out three years after separation. If we continue the parallel, an action could be commenced but not concluded on separation. [ 8 ] A matrimonial property action is capped at two years from the ‘date of a decree nisi , declaration or judgment’: section 6(1) (b). The formal end of a common-law relationship is not so definite as that provided in the Divorce Act , RSC 1985, c 3 , in

section 6 of the Matrimonial Property Act . The end of an adult interdependent partnership requires a written agreement, or separation, intent (of at least one of the parties) and the passage of time; not a court declaration, decree or judgment. [ 9 ] There was a five year gap between the parties’ separation and the Statement of Claim.

The timeline in this case is as follows: • Separation – February 1, 2009; • Briggs notices that their former home was for sale - September 2013; • Briggs files a caveat against this property September 26, 2013; • Statement of Claim, February 21, 2014; • Lis Pendens , May 14, 2014; • Statement of Defence, May 21, 2014; • Amended Statement of Claim, September 4, 2014; • Amended Defence, September 28, 2014. [ 10 ] A Procedural Order was granted dealing with the steps leading up to this application.

It was heard in Special Chambers and then reserved for further argument on an issue that came up over the course of the hearing. [ 11 ] If the clock begins to run on February 1, 2010, (a year after separation), the February 21, 2014, Statement of Claim is out of time. The two particular issues that underlie the limitations question are as follows: First, whether the end of the relationship (and hence the beginning of the limitation period) can be postponed with reconciliatory discussions. Section 10(1)(

a) of the Adult Interdependent Relationship Act requires that one or both intend that the relationship not continue for the period of time expressed by the Act in order for the relationship to end. Second, the Limitations Act requires that the Claimant know, or ought to have known, of the coincidence of the three elements set out in

section 3 . In this case, Mr. Briggs argues that he was not aware that Ms. Orlowski was unwilling to settle the property until he saw the house listed in 2013. By that time, Ms. Orlowski had remarried and was refusing to deal with the property. Further, he argues that he was genuinely concerned about Ms. Orlowski’s psychological condition: he understood that she was suicidal and was afraid that pressing her on a property division would cause her to harm herself. And there were some reconciliatory discussions which Mr. Briggs says, came to an end in 2012 when he refused to take counselling.

He did not issue his lawsuit until he was confident that the danger to her was over and there was no chance of reconciliation. [ 12 ] Mr. Briggs invites this Court to introduce what might be described as a ‘gentleman’s exception’ (for want of a better term), to interdependent partners limitations law.

List of Authorities By the Parties: 1. Balm v 3512061 Canada Ltd, 2003 ABCA 98 , [2003] AJ No 417 2. Canadian Natural Resources Ltd v Arcelormittal Tubular Products Roman S A, [2012] AJ No 1301, ABQB 679 3. TRG Developments Corp v Kee Instalations, 2015 ABCA 187 4. TRG Developments Corp v Kee Installations Ltd, [2014] AJ No 516, 2014 ABQB 287, 14 CBR (6th) 140, [2014] 12 WWR 385,240 ACWS (3d) 813, 2014 Carswell Alta 794 5. Tyler T. Ochao and Andrew Wistrich, The Puzzling Purposes of Statutes of Limitation, 28 Pac LJ 453 (1997) at pp 457 and 467 6.

Milavsky v Milavsky, [2011] AJ No 841, 2011 ABCA 231, 55 Alta LR (5th) 382, 513 AR 282, 2011 Carswell Alta 1290 7. Johansson v. Fevang, 2009 ABQB 573 8. Limitations Act, RSA 2000, c L-12 9. Ambrozic v. Burcevski, 2008 ABCA 194 10. Perehudoff v Christiano, 2013 ABQB 390 11. McConnell v Huxtable, 2013 ONSC 948 By the Court: 12. Boyd v Cook, 2013 ABCA 27 13. Brandner v Alberta (Justice & Solicitor General), 2014 ABQB 211 14. JN v GJK, 2004 ABCA 394 Issues [13] In general terms, the factual and legal issues are: ‘reconciliation’, for the purposes of s 10(1)(

a) of the Adult Interdependent Relationships Act; actual (or deemed) ‘knowledge’, for the purposes of s 3(1)(

a) of the LimitationsAct; the occurrence of an ‘injury’, for the purposes of s 3(1)(a)(

i) of the Limitations Act, and, when proceedings are ‘warranted’ for thepurposes of s 3(1)(a)(iii). The Evidence [14] The evidence makes this case something of an: ‘he said’-‘she said’ matrimonial classic. There are nine affidavits. All but oneis from the parties. There are accusations and counter-accusations and a more american approach to the truth than we are used to in otherareas of the law. Both Mr. Briggs and Ms. Orlowski were examined on their affidavits; though Mr.

Briggs’ cross-examination transcripthas not been filed. [15] If this type of evidence is par for the course, matrimonial disputes are unsuited to Motions Court. Credibility cannot bedetermined on paper evidence. Oral evidence (perhaps under rule 6.11(1)(g)) is rarely used. And unless the Court applies a lowerstandard to resolving conflicts in the evidence, none of these matters could ever, properly, be decided in this forum. (And unless the rule6.11(1)(

g) door is opened up, this may be the greatest impediment to giving Masters matrimonial jurisdiction.) Turning a blind eye tothese evidentiary difficulties may be the pragmatic response but, really, what is needed is a trial, or a different venue; all of which maybe telling us that court is simply not the place for matrimonial disputes. [16] The Plaintiff’s evidence is that he understood and believed that Ms. Orlowski was depressed and suicidal following theirseparation.

He swears, for example: 2 The reason why my claim was not brought sooner was because the Defendant/Applicant claimed that she had a nervousbreakdown and that she wasn’t in the proper mental state to handle any extra pressures involved in our property claim. This happenedaround February of 2009. She was attending counselling in Vegreville through the mental health services. This continued for a couple ofyears. 3 I decided to wait until she was of sound mind until bringing these proceedings because I thought that there was a real possibilitythat she might do physical harm to herself.

After having a discussion with her in June of 2013, it was my belief that she was now in abetter position mentally. She indicated that things were going good and that was she was newly married as of February of that year.Given these representations, I believed that it was now a proper time to commence with these proceedings.

[17] In the affidavit sworn October 27, 2015, Mr. Briggs said that Ms. Orlowski told him that she had suffered a “nervousbreakdown” after separation. In his July 2015 affidavit, Mr. Briggs says that he understood that she was suicidal and receiving help.Paragraph two of that affidavit is as follows: 2 In my previous Affidavit sworn July 31, 2014 and filed August 1, 2014, in communicating to me that she suffered a nervousbreakdown around the date of separation, the Defendant also told me that she was suicidal and receiving help from Mental Health inVegreville.

These communications went on for a number of years after separating. I expected to get paid out my share of the property weacquired together with our joint efforts when she got well. I agreed that she could continue to live there peacefully without disturbanceby me until she was of sound mind [18] When she was questioned, Ms. Orlowski denied ever using the term ‘nervous breakdown’.

She somewhat evasively deniessuffering from bi-polar disease and says that she never told anyone that she had it. [19] The part about not saying she had bi-polar disease is expressly contradicted by the affidavit of the Plaintiff’s daughter, wholived with the couple in the early days of their relationship. [20] Ms. Orlowski was vague and forgetful about psychological treatment when she was examined. Documentary evidence shedssome light on it. Correspondence from Alberta Health Services said that she was “seen at Vegreville Community Mental Health andAddictions from February 17, 2009 until April 2, 2012”.

The reasons for this were partially borne out by letter on file from a GP. A letterfrom a mental health therapist at Alberta Health Services confirms that she was depressed and suicidal when seen in November 2011. [21] Mr. Briggs’ perception about the frailty of Ms. Orlowski’s mental health, and possibly his perceptions about an agreement orunderstanding about whether an action was necessary or desirable, seems to be circumstantially borne out by the evidence. Although toget there, we would have to override Ms. Orlowski’s denials and find her evidence to be incredible.

Reconciliation [22] The evidence about the possibility of reconciliation is weak and contradictory. Mr. Briggs says in his October 2015 affidavit: 7. There were a few conversations when we thought we would get back together, and she suggested that we both take counselling.The reconciliation conversations went on until about 2012 when she realized that I was not going to participate in any counselling withher. I was happy that she was seeking professional counselling, and when she got better, we would talk about the property.

Throughoutthese “check in” conversations with her, she kept insisting that she didn’t want to talk about anything regarding property or materialobjects. [23] Ms. Orlowski replies: 11. With respect to paragraph 7. Of his Affidavit there were never any discussions concerning reconciliation. I made it clear to him thatwe were not going to reconcile however remained as best I could on cordial terms with him in the hopes that he would pay back thedebts. [24] The reference in the latter part of this evidence is to a debt Ms. Orlowski says Mr. Briggs owes her. Mr. Briggs denies it.

Ms.Orlowski claimed that there was a “pre-nuptial agreement” which Mr. Briggs also denies. [25] The telephone records produced by Mr. Briggs show over six hours of telephone conversations between Mr. Briggs and Ms.Orlowski between December 2011 and December 2012. The contents of these telephone conversations is not recorded except in thecontradictory evidence of Mr. Briggs and Ms. Orlowski. I can make no finding about them except to observe that six hours ofconversations over many calls seems to have been a long time to be talking about the weather. [26]

Section 10 of the Adult Interdependent Relationship Act requires making a finding about the possibility of reconciliation; ‘oneor both of the adult interdependent partners have to intend that the relationship not continue’. Perception and communication enter thisquestion, both here and for the purposes of the Limitations Act. Otherwise, one of the parties could behave in an entirely reconciliatoryfashion but secretly harbour a contrary intent until the limitation passes. This is what Mr. Briggs is trying to make out what Ms. Orlowskiis trying to do.

No doubt the standard is objective but it is important that the Courts proceed cautiously here, lest they be put in a positionof having to endorse deceit. This is one of the consequences of having adult interdependent partnerships end, not with a declaration,decree, or judgment, but with the combination of intent and the passage of time. Fraudulent concealment (section 4) is not an exception tosection 3(1)(

a) of the Limitations Act. Burdens [27] In a rule 7.1 application, the burden is on the applicant to prove, on a balance of probabilities, that the issue should bedetermined in their favour. The Limitations Act (section 3(5)(a)) tells us that the Claimant (Briggs) has the burden of showing that theRemedial Order was sought in time. [28] A rule 7.1 application renders the issue under consideration res judicata. If deciding the issue does not resolve the entirelawsuit, the issue cannot be reopened or relitigated at trial. (eg.

Bailey v Guaranty Trust Co of Canada (1987), (1987), 1987 ABCA 95, 77 AR 387(CA)). [29] It goes without saying that the Court has to have facts to determine an issue. In this case, the Court cannot assess the evidenceor make any findings that would be determinative of the issue without making findings of credibility. In this case, the Court cannotdecide the issue based on the conflicting evidence before it. Credibility makes it as good as having no evidence at all. This outcome is no

different from the Court’s reluctance to determine a limitations issue on an incomplete factual record. [ 30 ] I appreciate it is difficult for most people to afford court even once, let alone multiple times but this one will have to be decided at trial. Alternately, the parties could come back, still under rule 7.1 to provide oral evidence and ask for a credibility finding so that the limitation issue can be concluded. Disposition [ 31 ] The application for a determination of the limitations issue is dismissed. Costs are in the cause. Heard on the 28 th day of April, 2016.

Dated at the City of Edmonton, Alberta this 29 th day of August, 2016. W.S. Schlosser M.C.C.Q.B.A. Appearances: Darlene St. Jean Hajduk Gibbs LLP for the Plaintiff Damon Himsl for the Defendant