Boyko v Boyko, 2021 ABQB 266

Court of Queen’s Bench of Alberta Citation: Boyko v Boyko, 2021 ABQB 266 Date: 20210407 Docket: 1903 03067 Registry: Edmonton Between: Dan Boyko, Litigation Representative for the Estate of Nancy Boyko and David Boyko, Litigation Representative for the Estate of Roy Boyko Plaintiffs/Respondents - and - Lorraine Boyko, Litigation Representative for the Estate of Harvey Boyko Defendant/Appellant _______________________________________________________ Reasons for Decision of the Honourable Madam Justice D.A.

Sulyma _______________________________________________________ [ 1 ] This is an appeal of the order of Master Birkett in Edmonton set out in a written Order filed and served January 28, 2020. This litigation involves two brothers’ representations as litigation representatives of the estates of their parents Nancy and Roy Boyko and a third brother, Harvey Boyko (“Harvey”). who had entered into an agreement with his parents that they would transfer lands to him for the sum of $426,600. The lands were transferred to Harvey on January 6, 1995.

Roy Boyko died in 1999 and the Plaintiffs filed their claims against their brother Harvey in April and June 2013. On March 26, 2016, Nancy Boyko died. Harvey was noted in default on November 10, 2016 and on May 14, 2017 he died. [ 2 ] In May 2017, the Plaintiffs filed an application for judgment against Harvey and on September 5, 2017, Harvey Boyko filed

an application for an order setting aside the Noting in Default, an order dismissing the action as a result of the lack of standing of both Plaintiffs and an order dismissing the action for delay in prosecution of the issues. [ 3 ] When the matter was transferred to Edmonton and heard by Master Birkett, she determined that both Dan and David Boyko had and have standing to commence and continue the actions on behalf of their parents. She denied the Defendant’s application for dismissal of the action pursuant to either of r 4.31 and r 4.33.

Standard of Review [ 4 ] The standard of review on appeal from a Master’s decision to a Justice is correctness. [ 5 ] As recently explained by Hollins J in Steer v Chicago Title Insurance Company , 2019 ABQB 318 , while an appeal from a Master to a Justice is often described as “an appeal de novo ”, that description “does not properly describe appeals from the Masters”. In addition to the clear wording of the Rule, [Hollins J] say[s] this for the following reasons: (

a) There would be no reason to speak of any standard of review at all if the appeal were truly de novo; (

b) Rule 6.14 still contains a test, albeit relatively easily satisfied, for adding new evidence to the record before the Master, which would be moot if the appeal were truly de novo; and (

c) If the appeal were truly de novo, I could ignore the proceedings before the Master, including the Transcript of Proceedings which appellants are obligated to provide. Further, I could also ignore the Masters’ reasoning completely which is different than saying that he or she was correct. (at para 9) [ 6 ] As such, as explained by Hollins J, in an appeal from a Master in which no new evidence has been adduced, the Justice is “not hearing the matter anew but rather determining whether or not, based on the record, the Master’s decision was correct.

Standing [ 7 ] The Appellant takes the position that on both conclusions regarding the standing of Dan Boyko (“Dan”) to act on behalf of Nancy Boyko (“Nancy”) and David Boyko (“David”)to continue the action of Roy Boyko (“Roy”), both sons of Nancy and Roy, that there is no indication anywhere in the evidence that David was unable or unwilling to act as representative for Nancy and that there was no mention in the Statement of Claim and the Amended Statement of Claim or Affidavit evidence that Nancy required a litigation representative.

Thus, he submits there is no proper evidence as required to substantiate that she required a litigation representative. Here, the Statement of Claim was filed April 24, 2013 by the Plaintiff’s counsel and Dan’s application to be appointed as a litigation representative was not filed until February 28, 2018, which is almost five years after the Statement of Claim was filed. He submits that this late date in bringing the Application is clearly unreasonable and that the Court is precluded from curing any contravention, non- compliance or irregularity unless to do so would cause no irreparable harm to any party.

He submits that curing this defect will cause irreparable harm to him as it will permit Dan and David to continue their claims against Harvey, notwithstanding the many irregularities. [ 8 ] Accordingly, the Master erred in applying rule 1.5 to allow this irregularity to be cured for the purpose of commencing, prosecuting or advancing the action for Nancy Boyko. [ 9 ] Similar representations were made regarding David who filed an application to have himself appointed on February 22, 2018 but did not file his Affidavit until May 13, 2019.

Again, the Defendant submits that the delay in bringing this application is clearly unreasonable and that r 1.54(

a) cannot be applied as curing the defect would cause irreparable harm to the Defendant. [ 10 ] The Respondents state that although David did not file the Form One Affidavit when the Statement of Claim was commenced, that the Master correctly applied r 1.5 to permit this contravention or irregularity to be cured.

She relied on the evidence that the parties themselves had conducted themselves as if David was the litigation representative of Roy’s estate for the entirety of the action, she properly noted that the test for the use of r 1.5 was set by the Alberta Court of Appeal that Courts will generally take steps to cure a procedural defect as long as it does not cause substantial prejudice to the other party and that must be shown as a real possibility of prejudice or that it would so dramatically be devoid of the appearance of fairness that the administration of justice is brought into disrepute. [ 11 ] They rebut the argument that the irreparable harm here is that of permitting David and Dan to continue the claims against the Defendant notwithstanding many irregularities regarding their actions in commencing the litigation.

They note that this is a circular argument that would result in no claim containing irregularities could ever be cured. If accepted, that argument would render the Rule a nullity. Rather, the Rule specifically exists to cure the irregularities so long as doing so is in the interests of justice and would not cause irreparable harm.

It would be absurd for the continued existence of a claim containing irregularities to constitute irreparable harm to a party as this would mean that no claim containing irregularities could ever be cured. [ 12 ] The Respondents note the Appellant is unable to point to genuine irreparable harm to him that would arise from curing the contraventions given the evidence is that Harvey was aware from the start of the litigation that David and Dan were the parties acting on behalf of Roy and Nancy and all negotiations which occurred between the parties did so acknowledging David and Dan had the authority to represent those estates. [ 13 ] Indeed, the issue of the authority to conduct litigation was not raised until after Nancy’s stroke and death and late in the

litigation. Master Birkett found the evidence showed that Nancy had her stroke in September 2014 and the evidence indicated that there were settlement negotiations from June 2014 and onwards to January 2015.

As the Appellant is unable to point to genuine irreparable harm in being permitted to continue the action, the cure simply allows the parties to continue their actions in the same positions that they have always been in, which Harvey was always aware of from the start of the litigation. [ 14 ] She accepted that permitting the actions to continue, in particular given that Harvey admitted that he did not pay his parents for the property, is in the interests of justice. [ 15 ] The same is true regarding Dan Boyko’s standing as Dan has always been forthright about the fact he was acting on behalf of Nancy and Nancy’s interest in the action not his own.

Harvey and Lorraine have always understood that Dan was acting on behalf of the estate and not in his own interests, as stated in Lorraine’s Affidavit and that of her Questioning Transcript and in the Akers Transcript. The Master correctly allowed that Dan should be permitted to file his Form 1 Affidavit, notwithstanding that this was not done earlier. [ 16 ] With respect to Nancy, the Respondents rebut the argument that there was no evidence of her incapacitation and therefore no proof he was required to be appointed.

They state that even if this is the case, the fact is that Nancy was elderly, even if not incapacitated when this action was initiated, and this irregularity or contravention of a procedural requirement can be cured by the Court pursuant to r 1.5. [ 17 ] Further, factually Nancy suffered a stroke in late September 2014, which affected her mental capacity as testified to in Undertaking No 1 of David Boyko at which point she would have required a litigation representative and her estate continued to require such a representative after she died in March 2016. [ 18 ] The Appellant relies on Nahirney v Ogilvie & Company , 2011 ABQB 586 and Champagne v Sedorski , 2012 ABQB 522 , and the Respondents distinguish such as in Nahirney , the Court was concerned with allowing a family member with the Power of Attorney to represent his daughter in Court would contravene s 106 of the Legal Profession Act and in Champagne , the Court expressed reservations about a parties’ daughter “acting as a barrister or solicitor or commencing, carrying-on or defending an action or proceeding before a court or Judge on behalf of another person” and noted that counsel is required when a litigation representative is appointed. [ 19 ] Here on appeal, the Appellant relies on Fraser v Jeffries , 2019 ABQB 145 , but I do not find the facts or statements of law to be applicable here other than the finding that the delay was excusable as here the Master covered that issue on the facts found. [ 20 ] In this case, Dan as litigation representative of Nancy and later as litigation representative of her estate, has been represented by counsel and has not attempted to appear directly on Nancy’s behalf in any court.

Further, Nancy did suffer a stroke in late September 2014, which affected her mental capacity at which point she would have required a litigation representative. [ 21 ] Accordingly, given the facts here, even if Dan was not in strict compliance with the procedural requirements of r 213 when the action was initiated, such has been required in respect of Nancy since 2014, at which time the Respondents state they were unaware of the contravention and Dan has been acting in that capacity with the full knowledge and acquiescence of Harvey and Lorraine.

Indeed, it is in the interests of justice to allow the legitimate claims against the Appellant to proceed and be determined by the Courts and it will cause no irreparable harm to any party to allow this to occur. Again, they note that the only so-called prejudice for irreparable harm is that the actions will be able to continue notwithstanding their irregularities and for the reasons already noted that is not irreparable harm.

The Appellant has not proved a real possibility of prejudice. [ 22 ] The Appellant notes substantial prejudice to Harvey as both Nancy and Harvey have died since the action has commenced, and submits it results in substantial prejudice to the Appellant as submitted above. This issue was resolved by the Master and she clearly stated in her decision that there has been no specific possible prejudice to Harvey proved other than the general submission that the prejudice is in the ability of the Respondents to continue their actions.

She also could not attribute the deaths to the delays that occurred here. [ 23 ] The Respondents note previous arguments accepted by the Master which also cover this issue as a matter that can be corrected pursuant to r 1.5. The rule on correction is clear in r 1.5 and no case law was cited that excluded the use of it in this case, as she determined no prejudice would result. [ 24 ] I have considered the submissions above.

Master Birkett’s judgment on the issues of standing properly noted facts that she found that the Appellant always understood that the other brothers were acting on behalf of a parent’s estate and not in any of their own interest. She acknowledged the evidence that David did not consider his mother incapacitated in 2013 and she further referred to the evidence of Lorraine Boyko which deposed to her mother-is-laws deterioration of her short-term memory, loss of driver’s license and advanced age.

Lorraine also acknowledged it was her and Harvey’s feeling that it was best to deal with Dan and David and not Nancy directly. She specifically refers to the only harm that the Defendant relies on is the lack of standing. That is not the harm contemplated by r 2.11 and 2.14.

She limited her assessment, as do the Rules, to the need of a litigation representative as that need is in respect to the matters relating to this specific claim in this action and found this had been established by these facts. [ 25 ] The Master further referred to the fact that r 2.13 refers to automatic litigation representatives and that the Power of Attorney authorized Dan as an alternative to David to be litigation representative for Nancy Boyko. [ 26 ] She does not specifically in her judgment deal with the submission that there had to be proof that David was unwilling or unable to be the litigation representative so as to allow for Dan to take over as an alternate. [ 27 ] However, it appears to me from a full reading of the arguments before her and her consequent decision, that she did not feel she had to give her position on rule 1.5 allowing procedural irregularities to be cured given the finding of fact that throughout the entirety of this litigation including the time leading up to and after the conditional agreement was made.

She further restates that her findings are in part based on the fact that Harvey and Lorraine as well as Mr. Akers dealt with Dan and David representing their parents interests respectively and not in their personal capacity.

[ 28 ] In my view, her decisions on issues of fact were founded in the evidence before her. She was well aware of an argument that she could not cure irregularities unless she found no irreparable harm to any party. [ 29 ] She was also acutely aware of the lack of evidence required to show irreparable harm to the Appellant here.

She properly referred to the fact that there is no present caselaw and no caselaw was cited where someone chooses to have a litigation representative except rule 2.13 refers to automatic litigation representatives and she found that the General Power of Attorney and the Litigation Power of Attorney both authorized Dan as an alternative to David to be the litigation representative for Nancy Boyko. [ 30 ] I cannot find an error in her findings of fact and conclusions. I also add that, in my view, there is no obligation for the Plaintiffs to show in evidence David’s inability to act.

That is so as Dan is named as an alternative to David in the Powers of Attorney. I also note that the General Power of Attorney and the Litigation Power of Attorney were executed before the litigation was commenced so at the very least there was authority for Dan to act on her behalf. I am also of the view that at most, this would be a procedural irregularity curable by rule 1.5.

There is nothing in the rules or the caselaw that the Plaintiffs are required to prove this circumstance to Harvey for Dan to necessarily have become Nancy’s representative. [ 31 ] No case law was provided to allow for a litigant such as this Appellant to require the personal representative to prove underlying matters of standing to him. Indeed, this whole challenge, made retrospectively, does not appear to lie in his mouth given his own actions in accepting both his brothers’ authority during the entirety of negotiations.

This, both before and after the conditional settlement was reached in January 2015.This was the factual basis for the Master’s ruling on standing and the use of r 1.5. [ 32 ] In my view, the Respondents have met the onus of proof that the Master’s decision was correct. Delay [ 33 ] The Appellant questions the correctness of the Master’s decision with respect to the applications to dismiss the actions pursuant to rules 4.31 and 4.33.

These are sometimes colloquially named as the General Dismissal Rule and the Drop-Dead Rule. [ 34 ] In her decision on December 13, 2019, she properly starts her analysis by citing the law that summarizes the law and policy around the two rules that focus on litigation delay. Her

summary includes and defines the phrase “significant advance” and that in the Alberta Court of Appeal decision in Jacobs v McElhanney Land Surveys Ltd , 2019 ABCA 220 , Justice Slatter defined that “significant advance” means important or notable progress towards the resolution of an action. Also, in the same case, Justice Slatter stated that the question is ‘whether the parties at the end of the applicable period were much closer to resolution than they were at the start dates’.

She further properly referred to comments in Ro-Dar Contracting Ltd v Verbeek Sand & Gravel Inc , 2016 ABCA 123 and Ursa Ventures Ltd v Edmonton (City) , 2016 ABCA 135 regarding delay analysis. [ 35 ] She properly noted that the argument here is that settlement discussions between the parties constituted a significant advance in the action.

That period of discussion was from the date of the issuance of the Statements of Claim through January of 2015. [ 36 ] The Respondents argue that even if this exchange of correspondence did not give rise to a binding settlement, it narrowed the issues and constitutes a significant advance in the action. The Appellant argues that the settlement discussions did not narrow the issues. He argues that the parties did not arrive at an agreement on any facts or in any way restrict or circumscribe the issues for trial. [ 37 ] The Master determined that rule 4.33(4) does not include the period of one year after service.

Here, service was found to have been effected on June 23, 2013, which would make the start date of the applicable period June 23, 2014. She chose the end date to be the date the application was filed by the Respondents which was filed on September 5, 2017. [ 38 ] She went on to properly state that this period is still a period in excess of three years. She found that during that time frame, there had been important and notable progress. [ 39 ] In that regard, she found the settlement discussions in January 2015 placed the parties in a better position to settle given the quantum conditionally agreed to.

During this period, she also found the position of the Appellant was clarified and particularized in October 2016 correspondence from his counsel, Mr. Akers, and as a result, further material information was provided with Nancy Boyko’s Will in August of 2017. As a result, she concluded that at no point in the litigation was there a period where three or more years passed without a significant advance in the action. [ 40 ] The Master noted that the rule makes it clear that the issue to be determined is significant prejudice to the Appellant.

She cited Humpheys v Trebilcock , 2017 ABCA 116 , which sets out a six-part test to apply to determining the issues regarding 4.31 and that Transamerica Life Canada v Oakwood Associates Advisory Group Ltd , 2019 ABCA 45 , defines the test that applies to r 4.33 which includes an assessment of a case proceeding quickly, slowly or in the middle. She properly noted that in Transamerica , the obligations of a defendant to avoid delay is defined. The Master goes on to quote the arguments of the parties on the issue of inordinate and inexcusable delay.

She found that the delay in the litigation since filing the Statement of Claim is not inordinate given the efforts to settle this dispute over family property and the death of Nancy and Harvey. She noted these factors also offer an excuse for the delay.

She found that the Defendant is not without responsibility having been a willing participant in the settlement discussions and having not filed a Statement of Defence as required but chose to challenge the Affidavit of Service of the Amended Statements of Claim in lieu of defending. [ 41 ] She further acknowledged that the deaths of Nancy and Harvey during the litigation will certainly impact the evidence available.

But she did not find that this prejudice was a result of the Respondents’ delay in advancing the litigation. [ 42 ] The submission on appeal is that she erred in not finding the delay inordinate and inexcusable. In my view, she properly cited the timeline and the parties working toward settlement and the deaths of Roy and Nancy. She then concluded that she did not find delay which has resulted in significant prejudice to the Appellant.

[ 43 ] In this case, the parties have been conducting themselves as if David was the litigation representative of Roy’s estate for the entirety of the action.

Curing the procedural irregularity of David not having properly filed a Form 1 Affidavit will simply ensure that this outcome proceeds in the way that the parties had intended it to throughout the action. [ 44 ] In my view, the Master was very alive to the fact that despite negotiations a settlement was never concluded and that the Appellant argues that, in any event, those negotiations did not result in agreement on certain facts or on some aspect of the action that in turn resulted in a narrowing of issues. [ 45 ] She further went on to deal with substantial prejudice to the Defendant.

In my view, her findings of fact, including her finding that the Defendant is not without responsibility on this issue, are founded in the evidence. [ 46 ] She was well aware of the law that applied to her findings. Her fact-findings on the argument of narrowing the issues is that by January of 2015, the parties had reached a conditional settlement agreement. In doing so, in my view, she was just acknowledging the fact that no agreement in writing came from the negotiations. This was a finding of fact she was entitled to make and is supported by evidence in her review of the evidence.

She did, however, find that the negotiations and acquiescence regarding standing did constitute a significant advance in the action as defined by Slatter JA in Jacobs . [ 47 ] I conclude that the Respondents have been successful in proving the correctness of the Master’s judgment supported by the evidence. Heard on the 12 th day of August, 2020. Dated at the City of Edmonton, Alberta this 7 th day of April, 2021. D.A. Sulyma J.C.Q.B.A. Appearances: Erin Baker of Jensen Shawa Solomon Duguid Hawkes LLP for the Plaintiffs Kenneth F Slupek of Hladun & Company for the Defendant