Denis v Palmer, 2021 ABQB 786

Court of Queen’s Bench of Alberta Citation: Denis v Palmer, 2021 ABQB 786 Date: 20210930 Docket: 4801 164918 Registry: Calgary Between: Jonathan Brian Denis Applicant - and - Breanna Carly Palmer Respondent _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ INTRODUCTION [ 1 ] In face of applications for Spousal Support and to Set Aside a Cohabitation Agreement by the Defendant/Respondent, Breanna Carly Palmer (Ms. Palmer) from the Plaintiff/Applicant, Jonathan Brian Denis (Mr.

Denis), for which leave to file was granted by Justice Gill on November 27, 2017, and for which leave to proceed to a hearing was granted by me on January 6, 2021, this

Memorandum of Decision (Decision) relates to Mr. Denis’ response applications for dismissal of, and/or to strike, Ms. Palmer’s pleadings and application, on the basis of long delay under Rule 4.33 (the “three -year drop dead rule”) or, in the alternative, security for costs under Rule 4.22. For the reasons that follow, Mr. Denis’ Application for long delay is denied. As to security for costs, Mr. Denis’ application is granted in the sum of $1,650, payable before October 31, 2021, unless extended. Thus, in the result, Ms.

Palmer’s applications for spousal support and to set aside a cohabitation agreement will go forward, which I direct be as to liability only in the first instance, subject to meeting the prerequisite of the payment of security for costs. DROP-DEAD RULE – LAW, ISSUE AND ANALYSIS [ 2 ] The “Drop-Dead Rule” is very strict in that it provides that “If 3 or more years has passed without a significant advance in the action, the Court, on application, must dismiss the action” (emphasis added), absent exceptions not applicable herein.

It follows that if 3 or more years have not passed, any supplication under Rule 4.33 also must be dismissed. [ 3 ] Much of the jurisprudence, some of which is referenced in the Brief filed by Mr. Denis, relates to what is “significantly advanced”. However, the first question and real peremptory issue in this case is whether 3 or more years have passed without what might be called/claimed as a “significant advance” in the action.

The conclusion to which I have arrived is that the threshold of 3 years has not been achieved (perhaps hidden in the chronology and the role of “leave” discussed herein), and thus no further analysis of the meaning of “significantly advanced” needs consideration. [ 4 ] In the result that follows from the chronology and further analysis is that the Rule 4.33 application of Mr. Denis must be, and is, denied. CHRONOLOGY [ 5 ] Relevant to this this action – 4801-164918 and this Decision relevant thereto [1] , the detailed chronology is as follows: a.

The parties entered into a Cohabitation & Marriage Agreement (Cohabitation Agreement) on October 9, 2014; b. The parties were married on October 11, 2014, and separated on April 12, 2015 – a marriage of 6 months and 1 day; c. Following a Statement of Claim for Divorce filed by Mr. Denis on April 29, 2015, and pleadings in April and May, 2015 ( Ms.

Palmer’s Statement of Defence and Counterclaim were filed on May 21, 2015 [2] ), corollary relief was severed from the action for divorce, pursuant to Rule 12.50(7), and the divorce being granted by the Judgment of Justice Neufeld on May 19, 2016, effective June 19, 2016; d. On December 1, 2017 [3] , Ms.

Palmer, then (and still) a self-represented litigant, filed ( with a fiat from Justice Gill dated November 27, 2017 [4] ) what, in effect, was an application for a procedural order appearing to relate to a proposed future trial on the issues severed from the divorce, plus, by way of a 68 paragraph affidavit filed the same date (but, without a formal application [5] ), made a claim/request for, inter alia , spousal support and setting aside the Cohabitation Agreement [6] ; e.

Between December 1, 2017 and the end of 2017, ancillary documents were filed on the Court file (relating to substitutional service, service, change of Counsel for Mr. Denis, etc.), but nothing was of substance; f. On January 5, 2018, Mr. Denis filed an affidavit, wherein he refers to Ms. Palmer’s affidavit of December 1, 2017 “in support inter alia of spousal support”, but no other documentation of relevance was filed or received until a letter request received by my office on April 29, 2019 from Ms. Palmer for a fiat for leave to pursue, inter alia , to her claim for spousal support; g.

On May 16, 2019, I commenced as Case Management Justice (CMJ), it being a condition thereof that any self-represented litigant (Ms. Palmer was and remains so) needed leave to bring forward any new substantive application or hearing; h. On June 6, 2019, Ms. Palmer enquired of my office for a date to

schedule hearing for “an order regarding matters of spousal support and division of matrimonial property”; i. On July 16, 2019, notice was given that before considering her request, I required a new affidavit setting out only the relevant and material facts and exhibits pertaining to her applications (much of her material was neither legally relevant nor material to her applications); j. On August 29, 2019, Ms.

Palmer provided me an unfiled application for leave (which I then believed was required as a condition of case management) to proceed with her substantive applications for spousal support and division of matrimonial property, previously filed on December 1, 2017, the application to set aside the Cohabitation Agreement being impliedly interwoven therein as noted above; k.

By letter of September 10, 2019, leave to proceed with a hearing of the subject applications was denied on the basis that: much of the 2017 material was not relevant or material to the applications and not up to date; no formal application was filed for same in 2017; and a whole new set of relevant and material documents was required – this was again re-enforced by my office on December 19 and 23, 2019; l.

Covid 19 commenced and the Court’s Master Order #1of March 15, 2020, substantially changed the Court’s processes, much of which continues since under subsequent Court Master Orders, all of which affected the timing of processing these applications; m. New documentation (much still not relevant and material) in response to my September 10, 2019 direction, was received from Ms. Palmer on April 27, 2020 (7 months later), but Counsel for Mr. Denis, on June 3 and 12, 2020, objected to the granting of her application for leave based on allegations that the material was deficient, defamatory and improper;

n. On August 6, 2020, Ms. Palmer submitted a revised application, a new affidavit (still not all relevant and material), plus a Disclosure Statement, seeking a fiat to set a hearing for an order for spousal support and setting aside the cohabitation and marriage agreement; o. On August 19, 2020, Mr. Denis’ Counsel again objected to the relevance of alleged defamatory material provided by Ms. Palmer in her proposed affidavit, and sought removal of certain paragraph, which, if redacted, he would then consent to leave – Ms. Palmer rejected this proposal by letter dated December 18, 2020; p.

On January 6, 2021 [7] , I signalled, by letter, that a Fiat would be granted for leave to proceed to a hearing on these two issues (spousal support and setting aside of the Cohabitation Agreement) and directed a Rule 4.10 case conference (scheduled for Mar 15, 2021) to set procedure and dates for filing and hearing a 1 day Special Hearing “limited to issues of liability” – to which Mr. Denis’ Counsel provided a draft Procedural Order to permit same, but as a pre-requisite, proposed response applications by Mr.

Denis for Orders for dismissal for long delay pursuant to Rule 4.33, security for costs pursuant to Rule 4.22, and striking certain paragraphs of Ms. Palmer’s affidavit sworn on August 6, 2020; q. I granted a Procedural Order on March 15, 2021 (executed on May 22, 2021) permitting and setting procedures for Mr. Denis’ 3 response applications, and dependant on the outcome thereof, based on written submissions, leave to hear the applications of Ms. Palmer on liability would follow; and r. Counsel for Mr. Denis: on March 23, 2021, provided a formal copy of his application and affidavit of Mr.

Denis (no confirmation of formal filing has been provided and the Court’s CASES record does not show they were filed); on May 3, 2021, filed his Brief; and on May 14, 2021 filed his Reply Brief – in the interval, Ms. Palmer provided her Brief on May 7, 2021 and filed a further affidavit on May 14, 2021. [ 6 ] On a close review, this chronology shows that Justice Gill, effectively, gave leave to Ms. Palmer to file her applications for spousal support and to set aside the Cohabitation Agreement, within the 3 years of Ms. Palmer filing her Statement of Defence and Counterclaim.

Thus, the threshold prerequisite 3 year requirement under Rule 4.33 does not seem to have been proven, and accordingly Mr. Denis’ application under Rule 4.33 is dismissed. [ 7 ] To hold any less would be contrary to the Canadian Judicial Council’s December 12, 2006 “Statement of Principles on Self- represented Litigants and Accused Persons”, endorsed by the Supreme Court in Pintea v. Johns , 2017 SCC 23 , with special attention to the following: B.

To promote equal justice - Judges ... should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons. - Self-represented persons should not be denied relief on the basis of aa minor or easily rectified deficiency in their case. FURTHER ANALYSIS [ 8 ] At the risk of repetition, I should perhaps make my reasoning clearer.

As noted, the “Drop-Dead Rule” provides, in essence, that if 3 or more years has passed “without a significant advance in the action, the Court ... must dismiss the action”, and it follows that the opposite should pertain. [ 9 ] While I subsequently required leave for Ms Palmer to pursue a hearing on these applications, by way of case management, before a hearing could be scheduled, to ensure a proper application before the Court, a Justice of this Court, Justice Gill, as noted in footnote 3 above, granted leave to file such the applications within 3 years of Ms.

Palmers last previous pleading and within 17+ months of the granting of the divorce. While Ms. Palmer, with self-representation (and, potentially, other) limitations, was not efficient in advancing her claim, and in providing proper documentation for my requirement of leave for the hearing (which view, in retrospect, was misplaced), she did (however, inadequately), with Justice Gill’s leave, “significantly advance” the action within 3 years of May 21, 2015, and thus, I find, Rule 4.33 does not apply. As Mr.

Denis’ Brief (para 9) asserts, and I accept, “the clock begins to ‘tick” when an application is filed, not when it is heard”, relying on Lapp v. Grewal Holdings Ltd. , 2020 ABQB 524 , at para. 3 . [ 10 ] In the result, Mr. Denis’ application for dismissal for long delay is denied, with costs, for having failed to meet the threshold prerequisite. Costs, in Column 1 of

Schedule “C” of the Rules, which normally applies to domestic applications, absent unusual circumstances not applicable herein, would be $1,350 under item 8(1) of

Schedule “C”, plus disbursements, which I now award, but not make payable now, having regard to the security for costs issues discussed below. SECURITY FOR COSTS [ 11 ] Mr. Denis, in the alternative to his, now failed, dismissal for delay application under Rule 4.33, applies for security for costs, under Rule 4.22, claiming potential costs of $5,350, and seeking security in the sum of $3,000. [ 12 ] Without quoting all of the provisions of Rule 4.22 (which anyone can examine), it appears that the evidence and the law (see Mr. Denis’ Brief, particularly paras. 20 -26, and Bechir v.

Gowling Lafleur Henderson LLP, 2017 A BQB 214 , at paras 2 – 4 ), is strong on the merits of granting security for costs (especially against the challenging application for spousal support for a 6 month marriage), and in favour of Mr. Denis’ application under each of Rule 4.22(a), and (b). [ 13 ] However, Rule 4.22(d), as to whether an order for security for costs “would unduly prejudice the respondent’s ability to continue the action” is a key issue. Ms. Palmers financial affairs are clearly on the record (see paras 23 - 26 of Mr. Denis’ Brief, in

reference to the evidence), and not much more is needed to secure this result: 1251165 Alberta Ltd. v. Wells Fargo Equipment Finance Company Ltd. , 2013 ABQB 533 , at para 46 ; Trimove v. Servus Credit Union Ltd., 2017 ABQB 50 , at para. 108 ; and DataNet Information Systems, Inc. v. Belzil , 2011 ABCA 40 , at para 4 . [ 14 ] While Mr. Denis argues that he is entitled to costs of $5,350 to date, that is for the whole action, and it is only item 8(1) of

Schedule “C” that primarily applies to Ms. Palmer’s applications herein, in the sum of $1,350 for item 8 of Column 1, with possibly some parts of costs in relation to items 3, 5 and 7 of his claim, totalling approximately $2,700, that are relevant. However, he submits (para. 25) that “a modest amount of $3,000.00 is reasonable”, having regard to Rule 4.22(d). I do not find that amount unreasonable in all of the circumstances, as a starting point. [ 15 ] In the result, I order security of costs of $3,000 to be paid in advance of the hearing, offset by the costs due to Ms.

Palmer for her success on the Rule 4.33 application [8] , which I set in the sum of $1,350, for a net security of costs of $1,650, which, unless paid into court by October 31, 2021 (absent an extension of time, on application to the Court before that date), would automatically result in the dismissal of Ms. Palmer’s applications, and Mr. Denis could then apply for costs for defending the whole action. [ 16 ] If security for costs are paid within the deadline, I, as CMJ, will set, by way of Procedural Order, the steps and deadlines for substantive submissions and briefs on Ms.

Palmers applications, a draft of such Procedural Order to be provided by Counsel for Mr. Denis to Ms. Palmer and the Court within 2 weeks of this Decision, and for which a further Case Management hearing or other Court direction would be set to finalize same. REMAINING MATTERS [ 17 ] Two matters remain, as applications by Mr. Denis, although not really argued – striking parts of the affidavit of Ms. Palmer of March 19, 2021 and her Brief of May 7, 2021, on the basis of defamation, etc., and sealing the divorce file.

Especially in light of no real argument on these issues, the former to deferred to the substantive application of spousal support, so as to see what, if any, of the impugned parts of the affidavits of Ms. Palmer are relevant or irrelevant thereto. The sealing order application is denied on the basis of the open court principle, upon which I will not now provide further reasons, but reserve the right to do so, in the future, if necessary or advisable. COSTS [ 18 ] Costs have been dealt with above. To elaborate, no costs of his successful Rule 4.22 application are granted to Mr.

Denis, as I find, directionally, no further costs were incurred by him than in his submissions on his more challenging Rule 4.33 application. In other words: had he been successful on both applications, he would have received only one set of costs; and as he was not successful on the more challenging one, he will not get any off-set costs on his successful more minor – and more easily achieved - one. Heard on the 15 th day of March, 2021. Dated at the City of Calgary, Alberta this 30th day of September, 2021. J.D. Rooke A.C.J.C.Q.B.A. Appearances: Jay C.P.

Damen for the Applicant Breanna Carly Palmer as a Self-Represented Litigant