Poitras v Onespot, 2021 ABQB 120

Court of Queen’s Bench of Alberta Citation: Poitras v Onespot, 2021 ABQB 120 Between: Christopher Douglas Poitras Plaintiff/Respondent - and - Jody Lee Onespot _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice O.P. Malik _______________________________________________________ I. Introduction [1] This is an application brought by Jody Lee Onespot (the “Applicant”) and heard in Family Special Chambers on January 20, 2021, for the following relief: i. That an action commenced by the Plaintiff (the “Respondent”) on November 1, 2016, should be dismissed as it was brought outside of the 2- year limitations period pursuant to

Section 3 of the Limitations Act, R.S.A. 2000 c. L-12 ; ii. That the Respondent’s action be dismissed on the basis of delay pursuant to Rule 4.31 of the Alberta Rules of Court, Alta Reg. 124/2010 (the “ Rules ”) or alternatively for long delay pursuant to Rule 4.33 of the Rules ; iii. That a Certificate of Lis Pendens registered by the Respondent on the title of a property located at the address of 94 Discovery Ridge Drive, S.W. Calgary, be discharged; and Date: 20210216 Docket: FL01 25722 Registry: Calgary Defendant/Applicant Page: 2 iv.

If I decline to dismiss the Respondent’s action, that I make a procedural order as to next steps and that the Respondent be required to post security for costs. II. Overview [2] The parties commenced living together in 1999, and were adult interdependent partners as defined in the Adult Interdependent Relationships Act, RSA 2002 c A-4.5 [the “ AIRA ”] at the time of their separation in March, 2014. They have one daughter born in 2000 (now an adult).

During the first years of their relationship, the parties lived in various different homes until 2006, when they moved into a home located at 94 Discovery Ridge Drive S.W., Calgary (the “Discovery Ridge Home”), that was purchased by the Applicant and registered in her sole name. [3] In March 2014, the parties’ relationship ended and they decided to formally separate. By then, they had been living apart from each other for some time.

The Respondent continued to live in the Discovery Ridge Home with the parties’ daughter. [4] In September 2016, the Applicant signified her intention to move into the Discovery Ridge Home and notified the Respondent that he could continue living there until November 30, 2016, provided the parties agree to a living arrangement. The parties could not, and on October 25, 2016, the Respondent and the parties’ daughter vacated the Discovery Ridge Home. [5] On November 1, 2016, the Respondent commenced an action by way of Statement of Claim, in which he advanced a constructive trust claim grounded in unjust enrichment.

The claim asserted that the Applicant held the Discovery Ridge Home and other assets as a constructive trustee on behalf of the Respondent owing to the time, effort and capital the Respondent had expended to conserve, improve and maintain the Discovery Ridge Home and assets, and that as a result of those contributions for which there was no juristic reason, the Applicant had been unjustly enriched. The Statement of Claim advanced various other claims, including child support. [6] On November 1, 2016, the Respondent registered a Certificate of Lis Pendens (“CLP”) against title to the Discovery Ridge Home.

Due to an error, the CLP was re-registered on January 9, 2018. [7] On August 13, 2019, the parties entered into a Consent Order which settled the Respondent’s claim for child support. This essentially left the Respondent’s claim in unjust enrichment as the only outstanding issue to be resolved. [8] In April 2019, the Applicant listed the Discovery Ridge Home for sale.

The Applicant asserts that it was the Respondent’s continued registration of the CLP on title to the Discovery Ridge Home that caused it to sell for significantly less than the asking price, nearly one year later. [9] On June 24, 2020, the Applicant filed an application to discharge the CLP. On August 18, 2020, the application was dismissed in Family Chambers (the “CLP Discharge Hearing”) on the basis that a court could not discharge the CLP without the Applicant first obtaining a judgment with respect to the underlying claim.

The Chambers Justice ordered the Applicant to pay costs of the unsuccessful application by December 31, 2020. Page: 3 III. Analysis i. Is the Applicant’s Statement of Claim statute-barred by virtue of section 3(1) of the Limitations Act ? [10] The Applicant argues that I should consider the date of the parties’ separation of March 2014, as the triggering date for the commencement of the two-year limitation period pursuant to section 3(1) of the Limitations Act .

The Applicant urges me to conclude that the Statement of Claim, filed on November 1, 2016, was filed outside of the two-year limitation period which expired in March, 2016. [11] The Respondent agrees that the parties separated in March, 2014, but asserts that the limitation period does not commence until the parties lived separate and apart for one year, making them former adult interdependent partners as defined in

section 10(1(

b) of the AIRA . In accordance with this timeline, the Statement of Claim was filed in time as the limitation would have expired in March, 2017. [12] As a preliminary matter, it is clear that the Limitations Act applies to a constructive trust claim and that the applicable limitation period is two years (See , for example, Johansson v Fevang, 2009 ABQB 573 at para 11 ). On this, the parties are agreed.

[13] The limitation period for restitution claims begins when all of the constitutive elements of a claim for unjust enrichment have occurred, namely the enrichment of, or benefit to the defendant, the corresponding deprivation to the plaintiff, and the absence of juristic reason for the enrichment (Salna v Awad, 2011 ABCA 20 at paras 29-30 and D’Agnone v D’Agnone, 2017 ABCA 35 at paras 47-48 ). [14] In most cases, each of these elements would have occurred and be known to a plaintiff on the date of the parties’ separation.

In Milavsky v Milavsky, 2011 ABCA 231 at para 26 , the Alberta Court of Appeal concluded that for the most part, the triggering event that starts the limitation period is the date of the parties’ separation although the court cautioned at para 28 that the question “ought not to be determined in the abstract...absent an underpinning of findings of fact.” [15] The specific question posed which the parties would like me to answer is whether the limitation period that applies in the context of interdependent adult partners for a claim of property division based on a constructive trust commences on the date of the parties’ separation or when they become former adult interdependent partners, one year later. [16] When the limitation period commences has been referred to as a limitations question “with fuzzy boundaries” (Briggs v Orlowski, 2016 ABQB 476 at para 6 ).

While this question has arisen in a number of cases, it has not been determinatively answered (Briggs v Orlowski, 2017 ABQB 724 , Johansson v Fevang , 2009 ABQB 573 and Perehudoff v Christiano, 2013 ABQB 390 ). [17] As much as I might like to take the opportunity to provide an answer to the question, I cannot, based upon the simple fact that the Applicant has not pleaded the Limitations Act as a defence to the Respondent’s claim.

This failure is fatal. [18] Section 3(1) of the Limitations Act expressly stipulates that a “defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim” (emphasis added). A plain reading of section 3(1) requires that a defendant expressly plead the Limitations Act in order to rely on it as a defence to a claim. Page: 4 [19] This is precisely what the Alberta Court of Appeal concluded in Makowichuk v Makowichuk, 2013 ABCA 439 at para 9 , and confirmed subsequently in Cummings v Steinke & Company Realty Ltd., 2015 ABCA 55 at para 23 .

Both these cases were relied upon by Master Hanebury who arrived at the same conclusion in Geophysical Service Incorporated v Devon ARL Corporation, 2015 ABQB 137 at paras 14-15 , and who further noted at para 17 that “pleading”, is defined in the Rules as a statement of defence and “does not include a motion or an affidavit”. [20] The Applicant has never filed a Statement of Defence to the Respondent’s action notwithstanding that the Applicant’s previous counsel undertook to do so some time ago.

In the course of a follow-up hearing with the parties on February 2 nd , 2021, I invited the Applicant’s counsel to file a Statement of Defence as a precaution against my ruling that the limitations defence was unavailable. The Applicant’s counsel declined, advising that she was not prepared to file a Statement of Defence and further, insisted that the issue was moot. [21] Consequently, this ground of the application cannot succeed due to the Applicant’s failure to plead limitations in her Statement of Defence as required by section 3(1) of the Limitations Act . ii.

Should the Respondent’s Action Be Dismissed on The Basis of Delay (Rule 4.31) or Long Delay (Rule 4.33)? [22] The Applicant argues that I should dismiss that portion of the Respondent’s claim that advances the constructive trust action due to the Respondent’s delay under Rule 4.31.

Alternatively, the Applicant argues that the Respondent’s action should be dismissed pursuant to Rule 4.33 due to the Respondent’s failure to significantly advance his action in three years. [23] In assessing the application of Rules 4.31 and 4.33, I bear in mind that their application must be read in light of the foundational rules found in Rule 1.2(2) that are intended to promote the resolution of disputes in a timely, efficient, and cost-effective way (Huerto v Canniff, ABQB 2014 534 at paras 13-19). [24] A review of the timeline of events indicates that the Respondent did nothing to significantly advance the constructive trust claim from the filing of the Statement of Claim on November 1, 2016, up to the date of the CLP Discharge Hearing, nearly four years later.

During this time, the Respondent’s focus seems to have been entirely caught up in his claim for child support, which was finally resolved on August 13, 2019. [25] Consequently, the Applicant might have an arguable case for dismissing the Respondent’s constructive trust claim on the basis of delay. [26] But the inescapable difficulty the Applicant has is that while not explicitly framed as a delay argument under Rule 4.31, this is essentially the basis on which the Applicant sought to discharge the CLP at the CLP Discharge Hearing, namely the Respondent’s failure to significantly advance his constructive trust claim in four years. [27] This is evident from a review of the Applicant’s Affidavits filed on June 30, 2020 (at paras 8,13, 18, 19) and August 10, 2020 (paras 2, 3, 5, 6, 7, 30) which indicate that it was the Respondent’s delay in advancing his action and the resulting prejudice that inured to the Applicant that supported the Applicant’s CLP discharge application. [28] While there is no written decision of the CLP Discharge Hearing (the application was heard in Family Chambers), my review of the courtroom audio further indicates that the Applicant’s basis for seeking a discharge of the CLP was grounded in the Respondent’s delay.

Page: 5 [29] However, the Chambers Justice refused to discharge the CLP on the ground that the Applicant had not yet obtained judgment of the underlying claim and the application for the discharge of the CLP was dismissed. [30] Consequently, I cannot grant the relief the Applicant is seeking with resect to the CLP on the basis of delay. The matter, having already been heard and dismissed at the CLP Discharge Hearing is now res judicata on the basis of issue estoppel (on the test for issue estoppel, see Panasiuk v. Leclercq, 2015 ABQB 464 at paras 16 , 18-20).

[31] I now turn to the application of Rule 4.33. [32] In assessing the application of Rule 4.33, I am mindful that I must take a contextual, or functional approach to the question of whether an action has meaningfully been advanced (XS Technologies Inc., v Veritas DGC Land Ltd., 2016 ABCA 165 at para 9 , confirming Ursa Ventures Ltd., v Edmonton (City), 2016 ABCA 135 at paras 18-20 and Weaver v Cherniawsky, 2016 ABCA 152 at paras 17-18 ). [33] As I have concluded above, upon filing his action, the Respondent was focused on his claim for child support which was fully settled with a Consent Order on August 13, 2019.

This should come as no surprise. It is typical in family proceedings that parties focus on resolving issues of parenting and child support prior to resolving property division. This accords with the overriding emphasis on the child’s interests as the paramount concern. [34] The granting of the Consent Order occurred just less than three months shy of the third anniversary of the Respondent filing his action.

The Consent Order settled the question of child support and in my view constitutes a significant advance of the Respondent’s action as a whole (see Heikkila v Apex Land Corp., 2011 ABCA 87 at para 32 ) because it narrowed the claims, leaving the Respondent’s constructive trust claim as essentially the only outstanding claim to be determined. iii. Should the Applicant’s CLP be discharged? [35] This issue, having already been heard and decided by the Chambers Justice at the CLP Discharge Hearing is res judicata on the basis of issue estoppel (see above at para 30). iv.

Should I Issue a Procedural Order Regarding Next Steps and Should I Grant Security for Costs? [36] I agree that this case requires a procedural order so that it can effectively move ahead towards resolution. [37] This matter cannot be dealt with summarily or in Family Special Chambers. The parties’ Affidavit evidence is directly contradictory with respect to the essential elements that make up the Respondent’s constructive trust claim.

But on the whole, these issues are narrow and I see no reason as to why, given the evidence that has already been provided in the parties’ various Affidavits, this claim cannot be properly heard at a one-day oral hearing with limited viva voce testimony from the parties. [38] I will therefore issue a procedural order granting the parties leave to

schedule a one-day oral hearing and setting out the deadlines by which all further pleadings, Affidavits, cross- examinations on Affidavits, transcripts from questioning and Exhibit Books must be filed. [39] The Respondent will not be required to post security for costs pursuant to Rule 4.22. Page: 6 [40] While I have some questions about the Respondent’s means, his current inability to meet a costs award was neither argued nor established by the Applicant. The Applicant has not, in my view, brought the application promptly, having waited 4 years after the filing of the original CLP.

Further, the Applicant has not yet paid costs arising from the CLP Discharge Hearing. Finally, given the parties’ conflicting Affidavit evidence on nearly every point as it pertains to the Respondent’s constructive trust claim, I am not in a position to conclude that the Respondent’s constructive trust claim is without merit. Heard on the 20 th day of January, 2021. Dated at the City of Calgary, Alberta this 16 th day of February, 2021. O.P. Malik J.C.Q.B.A. Appearances: Kimberley A. Medora for the Plaintiff/Respondent Brenda Tan-Uhuegbulem for the Defendant/Applicant