Riehs Estate (Re), 2021 ABQB 821

Court of Queen’s Bench of Alberta Citation: Riehs Estate (Re), 2021 ABQB 821 Date: 20211018 Docket: ES01 121199 Registry: Calgary Court File Number ES01 121199 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial Centre Calgary Estate Name Margaret Jean Riehs Applicants Thomas Carl Riehs and Kenneth William Riehs Respondent Irene Margaret Yorgason _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R.W.

Armstrong _______________________________________________________ Introduction [ 1 ] Irene Margaret Jorgensen is the daughter of Margaret Jean Riehs who passed away on July 4, 2015. Ms. Jorgensen was named as a joint personal representative of the estate along with her two brothers, Thomas Carls Riehs and Kenneth William Riehs. [ 2 ] Legal counsel was retained to assist the personal representatives with the administration of the estate. Mr. P. David Arnold prepared the application for a grant of probate. In October 2015 Thomas Riehs and Kenneth Riehs signed the application for a grant of probate. Ms.

Yorgason did not sign the application for grant of probate because she had some concerns about the validity of the Deceased’s will. [ 3 ] On August 19, 2016 Ms. Yorgason commenced proceedings formally contesting the validity of the Deceased’s will and certain transactions involving land owned by the Deceased. Kenneth Riehs also commenced his own separate application questioning the validity of the will but he ultimately decided not to proceed with his application. [ 4 ] Thomas Riehs and Kenneth Riehs, seek to strike Ms. Yorgason’s action contesting the will and land transactions on the basis

that there has been a long delay or an inordinate delay in the prosecution of the action. They rely on rules 4.33 and 4.31 of the Alberta Rules of Court . Timeline of Events [ 5 ] The following timeline sets out the steps taken in Ms. Yorgason’s action challenging the validity of the will. All of the parties agree that the following steps were taken on the following dates: July 4, 2015 Ms. Riehs passed away. August 19, 2016 Ms. Yorgason filed her application and supporting affidavit challenging the validity of the will. January 19, 2017 Ms.

Yorgason filed an amended application challenging the validity of the will. July 28, 2017 Ms. Yorgason is served with an affidavit sworn by Mr. P. David Arnold, the lawyer who had prepared the Deceased’s Last Will and Testament. Paragraphs 6 and 7 of that Affidavit state: 6. In

summary, having known the Deceased for approximately fifty (50) years, and having assisted the Deceased with various wills and other legal documents over the years, it remains my opinion that the Deceased had capacity to execute her Last Will and Testament on February 26, 2013, the Lease Agreement on Marcy 7, 2013, and the Transfers of Land on May 14, 2009. 7. I make this Affidavit to put the within information before the Honourable Court and to ensure the testamentary wishes and legal instructions of my client are upheld. July 31, 2017 The parties attended a Case Management Conference. Ms.

Yorgason sought the appointment of a case management justice; however, her request was denied. The Case Conference Justice issued procedural orders granting all of the parties access to records relating to the solicitor’s will file and land transfer file and access to the Deceased’s medical records and financial records. March 28, 2018 Orders granting the parties access to the Deceased’s medical and financial records and granting access to the solicitor’s file dealing with the transfer of the Deceased’s land are filed.

April 24, 2018 Order granting the parties access to the solicitor’s file dealing with the preparation of the Deceased’s last will and testament is filed. January 26, 2021 Ms. Yorgason filed and served a Notice of Appointment for Questioning of Mr. Arnold in relation to his affidavit that had been served on her in July 2017.

March 1, 2021 This application for dismissal for long delay was filed. [ 6 ] In between these dates, counsel for the parties were corresponding about various aspects of the case, including the orders that were eventually filed in March and April of 2018 and other matters such as potential litigation plans that were never agreed to. None of the correspondence in question amounts to any significant advancement in the action. Ms. Yorgason was also engaged in the collection of the financial and medical records of the Deceased. [ 7 ] Since Ms.

Yorgason commenced her application challenging the validity of the will and the transactions involving the land, two potential witnesses have passed away. On July 31, 2018 Carl Gustav Riehs died. He was the Deceased’s brother-in-law and was a party to the impugned lease agreement executed by the Deceased. On December 8, 2019 Wayne Moore passed away. He performed accounting services for the Deceased in conjunction with the impugned land transfers and lease agreement.

The Positions of the Parties [ 8 ] According to Thomas Riehs, the last step constituting a significant advance in the action was the Case Management Conference held on July 31, 2017. Taking into account the 76 days during which Ministerial Order 27/2020 was in effect due to the Covid pandemic, Thomas Riehs argues that by October 15, 2020, more than 3 years had passed without a significant step being taken in the litigation and that pursuant to r 4.33, Ms.

Yorgason’s application must be struck. [ 9 ] In the alternative, Thomas Riehs advocates for dismissal of the action pursuant to r 4.31 on the basis that the delay that has occurred has been inordinate and inexcusable and that the delay has caused prejudice due to the intervening deaths of potential witnesses. [ 10 ] Kenneth Riehs’s position is substantially the same as that of Thomas Riehs although he argues that even the Case Management Conference of July 31, 2017 did not significantly advance the action. [ 11 ] Ms.

Yorgason states that the filing of the orders in March and April, 2018 were steps that significantly advanced her action. She further asserts that steps taken by her to obtain the Deceased’s medical and financial records are steps that significantly advanced the action. The medical records were obtained in November 2018 and the financial records were received in March 2020. Ms. Yorgason argues that there has been no period where 3 years passed without a significant step being taken to advance the action. [ 12 ] Ms.

Yorgason further claims there has been no inordinate and inexcusable delay and no prejudice to the other parties occasioned by the passage of time. In particular, the passing of either Carl Riehs or Wayne Moore will not prejudice any party to the action. Information relevant to the action can be obtained through existing records and, in any event, even if there is some prejudice

arising from the deaths of the two individuals, given the timing of their deaths, the prejudice cannot be said to arise from any delay that may be found to exist. [ 13 ] Ms. Yorgason asks that this application be dismissed and she be allowed to continue her action challenging the validity of the Deceased’s will and the land transactions. Rules 4.33 and 4.31 [ 14 ] The relevant portions of r 4.33 state: 4.33(2) If 3 or more years have passed without a significant advance in an action, the Court, on application, must dismiss the action as against the applicant, unless (

a) the action has been stayed or adjourned by order, an order has been made under subrule (9) or the delay is provided for in a litigation plan under this Part, or (

b) 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.

(3) If the Court refuses an application to dismiss an action for delay, the Court may make whatever procedural order it considers appropriate. [ 15 ] Rule 4.31 states: 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. [ 16 ] Rules 4.33 and 4.31 are meant to address litigation delay which has been identified as a pressing concern by the Court of Appeal of Alberta.

In Humphreys v Trebilcock , 2017 ABCA 116 at para 90 the Court of Appeal said: Litigation delay harms those who are directly and indirectly involved in an action tainted by inaction, the civil justice system as a whole and the greater community. Litigation is a form of stress that has the potential to make those directly and indirectly affected unhappy – litigation is expensive, introduces uncertainty and may undermine a person’s ability to earn a livelihood and plan ahead – any may diminish the productivity of the persons affected by the unresolved dispute.

People understandably expect that the mechanisms our state has constructed for the resolution of disputes will process them at a reasonable rate and not allow stale actions to survive. When these legitimate expectations are not met, individuals most closely linked to actions and the greater community may lose confidence and respect for the manner in which justice is administered.

Litigation delay is a corrosive force in a free and democratic state committed to the rule of law. [ 17 ] While a court should not be quick to strike an action simply because it is progressing slowly, actions were there has been a long delay without significant progress towards some final resolution, either by way of settlement or trial, must be terminated. The Application of Rule 4.33 [ 18 ] Rule 4.33 must be applied functionally with a contextual analysis of the action at issue and the steps that have been taken in that action.

The applicable law is succinctly summarized in Patil v Cenovus Energy Inc , 2020 ABCA 385 at paras 7-8 : • The rule must be applied within the context of the foundational rule (r 1.2) to resolve claims fairly and justly in a timely and cost-effective way. • Plaintiffs bear the responsibility of prosecuting their claims in a timely way: XS Technologies Inc v Veritas DGC Land Ltd , 2016 ABCA 165 at para 7 . • Defendants are obliged (pursuant to r 1.2) to not obstruct, stall or delay an action that the plaintiff is advancing: Janstar Homes Ltd v Elbow Valley West Ltd , 2016 ABCA 417 at para 26 . • A functional, as opposed to a formalistic, approach is appropriate to determine if a step constitutes a significant advance: Ursa Ventures Ltd v Edmonton (City) , 2016 ABCA 135 at para 19 . • The functional approach to r 4.33 is context sensitive: “[C]ases that have considered a particular advance in an action will be useful precedents, but they are not determinative”: Ursa Ventures at paras 19, 23. • A significant advance is one that moves the action forward in an essential way, having regard to the nature, quality, genuineness and timing of the advancing action: Ursa Ventures at para 19; Ro-Dar Contracting Ltd v Verbeek Sand & Gravel Inc. , 2016 ABCA 123 at para 21 .

• Rule 4.33 functions like a limitations period. It only requires one significant advance within the three-year period, not “continuous significant advancement”. Rule 4.33 is not designed to determine what a “reasonably diligent litigant” would do over the course of the three-year period: Ursa Ventures at para 11. • Whether an agreement between counsel constitutes a significant advance is context-dependent.

Rule 4.33 was not designed to encourage an “ambush” by one side after the parties had agreed to take a particular step: Turek v Oliver , 2014 ABCA 327 at para 6 . • Courts assessing whether an action is a significant advance under r 4.33 should focus on substance, not form. As an example, agreement to participate in a judicial dispute resolution process may not constitute a significant advance if it was merely an agreement to

schedule a JDR, which was not carried out: Weaver v Cherniawsky , 2016 ABCA 152 at paras 20-21 .

See also: Rahmani v 959630 Alberta Ltd., 2021 ABCA 110 at para 14 . [ 19 ] The functional approach to the application of r 4.33 was described by the Court of Appeal of Alberta in Sutherland v Brown , 2018 ABCA 123 at para 11 and 12 : The determination of whether there has been a significant advance towards resolution of an action must be viewed in this context: “steps that serve to narrow the issues, complete the discovery of documents and information or clarify the positions of the parties might well significantly advance the action. ‘Outcomes’ should not be overemphasized ” : Ro-Dar at para 20.

However, outcomes are not irrelevant as the functional approach requires the court to “view the whole picture of what transpired in the three-year period, framed by the real issues in dispute and viewed through a lens trained on a qualitative assessment.

This necessarily involves assessing various factors including, but not limited to, the nature, value and quality, genuineness, timing, and in certain circumstances, the outcome of what occurred”: ibid at para 21, citing Nash v Snow , 2014 ABQB 355 at para 30 , 590 AR 198. [ 20 ] The three-year period for the purpose of r 4.33 starts to run when the last significant advance in the action occurred. The period ends when the r 4.33 application was filed.

If three or more years pass within that window with no steps taken to significantly advance the action, then the action must be dismissed: Trout Lake Store Inc v Canadian Bank of Imperial Commerce , 2003 ABCA 259 at paras 25-33 ; Barath v Schloss , 2015 ABQB 332 at para 9 ; Rahmani at paras 16-17 . [ 21 ] In this case the three-year period starts to run on July 31, 2017, the date of the Case Management Conference. The Case Management Conference was a step that assisted the parties by focussing them the outstanding issues and the next steps to be taken. Procedural orders were issued by the Case Conference Justice.

While the parties had been talking about forms of consent orders for many months, it was at the Case Management Conference where the issues around those orders were substantially resolved and the orders were granted by the Case Conference Justice. I am satisfied that the Case Management Conference was therefore, in the context of this action, a significant advance in the litigation. [ 22 ] The r 4.33 application was filed on March 1, 2021.

The question for determination then is whether three or more years passed between July 31, 2017 and March 1, 2021 without a significant advance in the action. [ 23 ] The Respondent points to two activities that occurred between July 31, 2017 and March 1, 2021 that constitute material advances in the action: the filing of the orders that were granted at the July 31, 2017 Case Management Conference and the gathering of the Deceased’s medical and financial records. [ 24 ] The orders granting the parties access to the Deceased’s medical and financial records and granting access to the solicitor’s file dealing with the transfer of the Deceased’s land were filed on March 28, 2018.

A further order granting the parties access to the solicitor’s file dealing with the preparation of the Deceased’s last will and testament was filed on April 24, 2018. While the filing of these orders was a step that had to be taken to formalize the orders, the act of filing was not a step that materially advanced the action. [ 25 ] In the context of this case, finding that the act of filing the orders amounts to a significant advance would be an overly formalistic approach. When that step is looked at from a functional perspective, in the context of the proceedings as a whole, it did not advance the action.

The orders in question were granted at the Case Management Conference held in July 2017. The orders took effect from pronouncement. While the filing of the orders was a formal step that ultimately had to occur, the substance of the step forward was the granting of the orders at the end of July 2017.

Filing the orders in March and April of 2018 did not significantly advanced the action. [ 26 ] From a functional perspective, considering the problems created by litigation delay articulated by the Court of Appeal of Alberta, a party cannot significantly delay the filing of order that has been granted and then later rely upon that delay to save them in an application for dismissal for long delay under r 4.33. [ 27 ] The functional and contextual approach is particularly important when determining whether gathering documents constitutes a material advancement in the action.

The authorities go both ways on this question depending on the overall impact that the documents have in moving the litigation towards resolution, either by trial or settlement. [ 28 ] The applicable principles are set out in Huynh v Rosman , 2013 ABQB 218 . Following a comprehensive review of the relevant case law, the Honourable Justice Gates articulated the proper approach to the application of r 4.33: At para 35 he said: In determining if a thing significantly advanced an action, the court must undertake a functional analysis and determine if the thing moved the litigation closer to trial in a meaningful way.

In a case where the thing done is the collection of information, the determination if the litigation was moved closer to trial will depend on a number of factors, including the importance of the information, the extent of the information, the quality of the information, whether the opposing party was aware the information was being gathered, and if the information was ever provided to the opposing party. [ 29 ] Later, at para 38 of that decision, Justice Gates said: The other party’s knowledge and/or receipt of the information is, in my view, a very important consideration because the advancement of

an action to trial necessarily requires the involvement of both parties. Litigation is an interactive process between opposing parties, each of whom are required to both initiate steps and respond to actions taken by the opposing party. Moreover, litigation is about the exchange of information and positions between and among parties on various factual and legal issues relevant to the action. One party cannot rely solely on its own efforts to allege that they advanced the action when the defendant has no knowledge such work is being done.

It is not until the information is actually shared with the other side that the litigation has some prospect of actually moving forward. [ 30 ] Ms. Yorgason relies on the decision in Ro-Dar Contracting Ltd v Verbeek Sand & Gravel Inc. , 2016 ABCA 123 for the proposition that gathering medical records is a step that significantly advances an action. In that case, the defendant disclosed documents to the plaintiff that had a direct bearing on the assessment of potential damages.

That disclosure was considered a significant advance in the action. [ 31 ] In Ro-Dar , it was the act of disclosure coupled with the substantive importance of the documents that constituted the significant advance in the action. In this case, there has been no such disclosure of documents between the parties.

Documents held in the possession of one party will rarely advance an action until they are shared with the other party. [ 32 ] In Phillips v Sowan , 2006 ABQB 579 (aff’d 2007 ABCA 101 ), the chambers judge found that the gathering of updated medical information such as a second opinion from a chiropractor, an updated statement of benefits paid and an updated acupuncturists report, did materially advance that action.

In that case, the only issue for determination was damages and the gathering of the records occurred in conjunction with the preparation of an economic report which was necessary “. . .to support the claim for damages suffered and to achieve a resolution of the overall action.” (para 17).

These steps, in the context of an action where the only issue was damages were held to be steps that materially advanced the action. [ 33 ] In Huynh , the plaintiffs argued that gathering medical and employment information significantly advanced the action because the information would assist them in making a more accurate estimate of damages for use in settlement negotiations. As in the present case, the collected information had not been disclosed to the opposing party.

In dismissing the action for long delay, the Honourable Justice Gates noted at para 39: The information was minimal and not a complete picture of any of the alleged damages. The quality of the information, even if it had been disclosed, would likely not have significantly advanced the action.” [ 34 ] The circumstances of the present case differ significantly from the circumstances in Ro-Dar and Phillips. The medical and financial records collected by Ms. Yorgason are voluminous. Even a cursory review reveals most of the information to be irrelevant to the issues between the parties.

Even assuming that some of the information in the records is of significant importance to the action, it cannot materially advance the action if it remains obscured among hundreds and hundreds of pages of otherwise irrelevant material and if it remains undisclosed to the opposing party. [ 35 ] To establish that gathering records has significantly advanced an action, there must be some evidence that something has been done besides mere collection.

Has the party in receipt of the records reviewed them, particularly when they are voluminous, to determine what, if any, portions of the records are relevant and material to the action? Have the relevant records been identified and correlated to outstanding issues? Have the records been provided to the other side for review? None of those steps that might demonstrate at least some advancement in the conduct of the action have been taken in this case. On the evidence before me, all that it appears Ms. Yorgason has done is amass a very large stack of documents.

That does not amount to a significant advance in the action. [ 36 ] Clearly, the collection of records is something that must be done when there is litigation. However, the mere act of acquiring hundreds and hundreds of pages of medical and financial records without any analysis as to their relevance and without taking steps to identify the relevant documents and provide them to the opposing party does not amount to a significant advancement of the action. [ 37 ] Ms.

Yorgason argues that her collection of the Deceased’s medical records did materially advance her action because it was information contained in medical records that contributed to Kenneth Riehs’s decision not to pursue his own application. The records Mr. Riehs reviewed were collected by him as the applicant in his own application contesting the will. The decision by him not to proceed with his own matter, which was separate and apart from the one commenced by Ms. Yorgason, is not a material advancement of Ms. Yorgason’s action. [ 38 ] In this case, the outstanding litigation commenced by Ms.

Yorgason has held up the administration of the Deceased’s estate for over 5 years. Neither Thomas nor Kenneth Riehs in any way obstructed the progress of her action. Early on, a litigation plan was proposed that would have ensured an orderly progression of the action. Ms. Yorgason rejected that litigation plan. The affidavit of P. David Arnold attesting to the capacity of the Deceased was served on Ms. Yorgason in July 2017. Ms. Yorgason did nothing in relation to that affidavit until more than three years later when she served a notice of appointment for questioning on that affidavit. Ms.

Yorgason has not been diligent in prosecuting her action and that has led to significant litigation delay. More than three years passed without any steps being taken to materially advanced the action. The action must therefore be struck pursuant to r 4.33. [ 39 ] Having disposed of the matter pursuant to r 4.33, I need not consider the effect of r 4.31. Conclusion [ 40 ] The last step taken that materially advanced the action was the Case Management Conference that occurred on July 31, 2017. After that, more than three years passed without a significant advance in the action.

The action is therefore dismissed pursuant to r 4.33. [ 41 ] As the action has been dismissed, the Certificates of Lis Pendens filed by Ms. Yorgason in relation to her action (Instrument Number 161 249 631 and 161 249 632) shall be discharged. [ 42 ] In order to avoid a conflict of interest and to facilitate the orderly and timely administration of the Deceased’s estate, Ms.

Yorgason is hereby discharged as a Personal Representative of the Estate. Kenneth Riehs and Thomas Riehs shall continue as the Personal Representatives for the Estate. [ 43 ] Kenneth Riehs and Thomas Riehs are entitled to their costs of this application. Heard on the 8 th day of September, 2021. Dated at the City of Calgary, Alberta this 18 th day of October, 2021. R.W. Armstrong J.C.Q.B.A. Appearances: Jared L. Kantor Kantor LLP for the Applicant Thomas Carl Riehs Aaron G. Reinhart North & Company LLP for the Applicant Kenneth Willian Riehs David G. Kusick Craig Law LLP for the Respondent Irene Margaret Yorgason