Vanmaele Estate (Re), 2023 ABKB 456

Court of King’s Bench of Alberta Citation: Vanmaele Estate (Re), 2023 ABKB 456 Date: 20230803 Docket: ES03 125953 Registry: Edmonton Court File Number ES03 125953 Court Court of King’s Bench of Alberta (Surrogate Matter) Judicial Centre Edmonton Estate Name Estate of Henry Amede Vanmaele Applicant Rosa Vanmaele Respondent Bert Vanmaele _______________________________________________________ Reasons for Decision of the Honourable Justice A.

Loparco _______________________________________________________ [ 1 ] This is my decision in an application by Rosa Vanmaele, one of the beneficiaries of the Estate, to strike Mr. Bert Vanmaele’s Claim under the Dependants Relief Act ( DRA , since repealed and now under the Family, Maintenance and Support provisions of the Wills and Successions Act ( the WSA) ) for long delay pursuant to Rule 4.33 of the Alberta Rules of Court , Alta Reg 124/2010 ( Strike Application ). I will use first names in my decision so as not to confuse the individuals involved, but I intend no disrespect. I.

Procedural Background [ 2 ] This Estate has been the subject of significant litigation. I will only refer to the procedural background relevant to this Application. [ 3 ] Henry Amede Vanmaele passed away on May 16, 2006, and was survived by 5 children. His Will, dated July 2, 2002, appointed two of his children - Bert and Ann - as executors.

The Court issued a grant of probate on December 4, 2007. [ 4 ] On June 3, 2008, Bert filed an application for dependant relief ( DRA Claim). [ 5 ] By letter dated September 27, 2016, to Case Management Justice Renke, Rosa asked for the determination of a preliminary issue: whether Bert is a dependent. It was agreed that liability would be determined before quantum on the DRA Claim. [ 6 ] The preliminary issue was scheduled to be heard December 7, 2016. Briefs were filed and parties and counsel appeared before Renke J.

The Justice found that he could not determine the issue on affidavit evidence alone and that a trial of an issue would be

required to settle the question of whether Bert was entitled to a DRA Claim. Instead, he proposed a JDR to settle the claims. The application to determine the preliminary issue was therefore adjourned sine die . [ 7 ] The JDR never took place, and no further steps were taken to

schedule a trial of the liability issue. [ 8 ] Rosa filed her Strike Application on December 18, 2019; it was scheduled to be heard March 19, 2020. The application was adjourned due to the pandemic. She refiled that same application on June 15, 2020, to get it back on the list. [ 9 ] The Court heard the application for long delay on June 24, 2020, and July 2, 2020.

By way of Endorsement dated July 21, 2020, Bokenfohr J made the following comments: • A query was raised as to whether Bert was incapacitated during the relevant three-year period, noting that whether this extended the limitation period was a live issue in Alberta based on AF v Alberta , 2020 ABQB 268 ( AF ). • The action brought against Victoria Jones, counsel for one of the beneficiaries, was dismissed by Master Smart, on the basis that Bert did not have capacity when it was filed in January 2017 and Ann acted without authority when she filed it on Bert’s behalf. • By June 2017, Bert asserted he had capacity, but he was medically unable to participate in legal proceedings at that time. • A query was raised as to whether there was an agreement to delay the DRA Claim until the Accounting Application was concluded and if so, the impact of that agreement on Rule 4.33 . • Bert initiated a number of actions and appeals despite his capacity and ability to participate in proceedings being an issue, including at the Court of Appeal where Justice Watson concluded that he was capable of representing himself: Vanmaele v Feltham , 2019 ABCA 45 at para 1 . • Bert’s sister, Ann, has often spoken on Bert’s behalf.

Ann was ordered not to communicate or make representations on behalf of Bert in court. • During the July 2 hearing, Bert fell asleep and could not be awoken by his sister. Bokenfohr J urged Bert to seek a capacity assessment of his ability to make decisions and participate in legal proceedings. [ 10 ] Although I do not have the transcript, counsel advised that Bokenfohr J subsequently issued an order requiring Bert to undergo a capacity assessment.

Bert has refused to attend the assessment. [ 11 ] An Amicus Curiae ( Amicus ) was appointed by Court Order on April 29, 2021, during a case management conference. [ 12 ] On June 30, 2022, the matter returned to Bokenfohr J in case management and submissions were made about Bert’s capacity. Justice Bokenfohr varied her previous decision and stated she had no issue with Bert’s capacity to represent himself. [ 13 ] A litigation plan was ordered on that same day, giving the Applicant leave to

schedule a half-day special chambers date to deal with the Strike Application after March 1, 2023. [ 14 ] The parties were given deadlines to complete the filing of supplemental affidavits, questioning, and filing of briefs. The litigation plan stated that the onus was on Bert to provide evidence to the Court in the form of an affidavit, failing which, the matter would proceed as an uncontested application.

Accommodation for Bert was provided such that if he could not attend the hearing in person, he was to make submissions in his brief as to the reason why and set out the accommodations required, supported by a doctor’s letter. [ 15 ] Bert filed his affidavit on August 31, 2022, and attended the special chambers hearing before me on June 30 th in person. He did not file a brief. [ 16 ] During the hearing, Bert opposed the Strike Application on the basis that he was incapacitated due to various medical issues throughout the period in question. He sought to enter additional medical evidence.

Bert advised me that his incapacity was caused by many hospitalizations and the heavy use of opioids in his treatment plan. [ 17 ] I declined his application to present additional evidence as he had already provided a lengthy affidavit setting out his medical concerns with exhibits, which spanned the three-year period in question. [ 18 ] Ms. Locke, the Amicus appointed in this matter, confirmed that she acted as the Commissioner for oaths when Bert swore his affidavit. She stated that she had no concerns about his capacity.

Moreover, Bert did not convince me that the additional materials were relevant or that he could not have obtained the evidence at the time he swore his affidavit. [ 19 ] Ms. Locke filed a comprehensive brief and reviewed the issues relating to Bert’s capacity for the Court, as discussed further below. II. Rule 4.33’s Guiding Principles [ 20 ] Rule 4.33(2) provides as follows: 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. [ 21 ] I discussed the guiding principles the applying Rule 4.33 in Taschuk v Taschuk , 2022 ABKB 786 at paras 11-13 ( Taschuk ): ...The relevant principles are: • A functional approach to Rule 4.33 “inquires whether the advance in an action moves the lawsuit forward in an essential way considering its nature, value, importance and quality .

The genuineness and the timing of the advance in the action are also relevant. This analysis is undertaken in the context of the particular lawsuit.

The focus is on substance and effect, not form” ( Ursa Ventures Ltd v Edmonton (City) , 2016 ABCA 135 at para 19 , emphasis added ) ( Ursa CA ). • A step that “significantly advances” an action must move the parties closer to resolution ( Weaver v Cherniawsky , 2016 ABCA 152 at para 26 ). • The outcomes or consequences of the litigants’ actions are relevant to whether there has been a significant advance in the action ( Ro-Dar Contracting Ltd v Verbeek Sand & Gravel Inc , 2016 ABCA 123 at para 21 ) ( Ro-Dar) . • A step required by the Rules is not necessarily a significant step ( Ro-Dar at para 14). • Prejudice is not considered under Rule 4.33 .

The court has no discretion to allow the action to continue if the requirements of the rule are met ( Ursa CA at para 10). • The plaintiff bears the ultimate responsibility for prosecuting its claim ( XS Technologies Inc v Veritas DGC Land Ltd , 2016 ABCA 165 at para 7 ).

In Jacobs v McElhanney Land Surveys Ltd , 2019 ABCA 220 , the Court restated the indicators of a ‘significant advance’: • At para 86, the Court asked: “[h]as anything that happened.... increased by a measurable degree the likelihood either the parties or a court would have sufficient information – usually a better idea of the facts that can be proven – and be in a better position to rationally assess the merits of the parties’ positions and either settle or adjudicate the action?

Are the parties at the end of the applicable period much closer to resolution than they were at the start date?” • At paras 88-96, the Court reviewed hypotheticals and asked if the facts, law, and positions of the parties relative to each other are the same as they were before the supposed advance.” In Rahmani v 959630 Alberta Ltd , 2021 ABCA 110 at paras 16-17 , the Court specified how to assess if there has been a three-year period with no significant advance in the action: you counts forward from the date of the “last uncontroversial significant advance” to the date on which the Rule 4.33 application was filed, and then you look for a three-year period in that window with no significant advance in the action. [ 22 ] The relevant period in the consideration of this Strike Application is December 7, 2016, to December 18, 2019. [ 23 ] Rule 4.33 is mandatory and grants no discretion to allow the action to continue if the conditions of the rule are met.

Prejudice, the strength of the claim, the reason for the delay, or sympathy do not play into this determination. [ 24 ] This Court has also recognized that the rules apply equally to self-represented litigants: Gjergji v Hyatt Mitsubishi , 2017 ABQB 500 at para 32 . III. Issues [ 25 ] The issues in this Application are: 1) Is there a three-year period between the last uncontroversial significant advance and the Application to strike for delay where no significant advance occurred? 2) Are there any reasons that would suspend the computation of time pursuant to Rule 4.33 ? IV.

Analysis Is there a three-year period in the DRA Claim between the last uncontroversial significant advance and the Strike Application where no significant advance occurred? [ 26 ] At the Special Chambers Application to deal with the DRA Claim on December 7, 2016, it was determined that the matter required viva voce evidence; the Case Management Justice proposed a JDR or a trial of an issue to resolve the issue. This hearing was an uncontroversial significant advance in the Action.

[ 27 ] On December 19, 2016, Rosa’s counsel followed up with a letter to the parties to try to move the matter to a JDR. Bert declined to participate personally or through an attorney. A failed attempt to

schedule a JDR is not a step that significantly advances the action: Weaver v Cherniawsky , 2016 ABCA 152 . [ 28 ] In the transcript of the hearing, Renke J clearly indicates that should the JDR fail to resolve the issue, a trial of an issue would be required as the matters could not be determined by affidavit evidence alone. [ 29 ] No trial was scheduled nor was a Form 38 completed in support of an application to seek the Court’s assistance in setting the matter down for trial. [ 30 ] There has therefore not been any significant step taken directly in the DRA Claim that significantly advanced the action.

Is there any other reason that would suspend the computation of time pursuant to Rule 4.33? [ 31 ] I have considered the other possible reasons for the delay in this matter as queried by Justice Bokenfohr in her Endorsement, namely whether there was an agreement that suspended Rule 4.33 , and whether Bert was incapacitated during the relevant time period such that he could not have advanced his DRA Claim.

Is there an agreement to suspend Rule 4.33 ? [ 32 ] First, I find that there is no agreement in writing between the parties that would suspend the time pursuant to the requirements of Rule 4.33(5)-(9), which provide:

(5) If a respondent and an applicant agree in writing to a suspension period, the period of time under subrule (2) does not include the suspension period agreed to.

(6) A respondent, whether or not the respondent has sought agreement under subrule (5), may serve an applicant with a written proposal setting out a suspension period and requesting that the suspension period not be included in computing the period of time under subrule (2).

(7) An applicant who receives a proposal referred to in subrule (6) must respond within 2 months, and within that time (

a) if the applicant agrees with the proposal, then the period of time under subrule (2) does not include the suspension period agreed to, or (

b) if the applicant disagrees with the proposal or does not respond to the proposal, then the respondent may apply for an order under subrule (9).

(8) If a suspension period is agreed to under subrule (5) or (7)(a), the respondent must give all other parties to the action written notice setting forth what the suspension period is, when it was agreed to and by whom.

(9) A respondent, whether or not the respondent has sought agreement under subrule (5) or served a proposal under subrule (6), may apply for an order setting out a suspension period that shall not be included in computing the period of time under subrule (2). [ Emphasis added ] [ 33 ] Bert’s Affidavit cites transcript references wherein counsel discusses the need for the passing of accounts to be completed before the DRA Claim can be determined.

However, those comments do not meet the requirements that would permit a formal suspension of time pursuant to the Rules . [ 34 ] Similarly, a court order following the sale of land that states that the funds shall be held pending the determination of Bert’s DRA Claim, does not meet the conditions of the Rules to suspend the computation of time. [ 35 ] Bert further implies that there is an agreement to suspend time on his DRA Claim since the net value of the Estate is not yet known as an appeal of a Canadian Revenue Agency decision (to exclude improvements to the farm in the calculation of capital gains owed and the fees for Ms.

Locke’s assistance to the Court) is pending. [ 36 ] From a functional perspective, this is also not a significant advance of the DRA Claim as the assessment of the preliminary question of whether Bert is a dependant does not rely on the final determination of the net value of the Estate. It was also determined at the Special Chambers hearing that the path forward would be to resolve this preliminary question either by JDR or a trial of an issue. [ 37 ] In conclusion, there was no agreement to suspend Rule 4.33 . This cannot be determined by inference as the Rules require a clear expression of intent.

Does Bert’s temporary incapacity during the relevant period of time suspend Rule 4.33 ? [ 38 ] On the question of whether Bert’s alleged incapacity suspended the running of time, I find that it did not. There is no evidence of a loss of capacity – periods of hospitalization alone or the existence of medical issues without evidence that an individual could not advance their claims as a result is not sufficient to ground this justification. [ 39 ] In his Affidavit dated August 30, 2022, Bert stated: “I never felt that I was mentally incompetent. I struggled with [sic] is best described as brain fogging”.

He does not have a personal directive or enduring power of attorney in place.

[ 40 ] In April 2017, he was admitted to Alberta Hospital for an assessment. The treating psychiatrist, Dr. Martin, noted that Bert was competent to make decisions, but that his prognosis is guarded because of ongoing neurological and pain problems. His opinion was that stressful appearances in court would be detrimental to his mental health and were not recommended at that time. [ 41 ] I also note that Bert had many interactions with the legal system from December 7, 2016, up to the filing of the Strike Application .

He filed statements of claims, represented himself in court, appealed decisions, and appeared before the Court of Appeal. Appeal Court Justice Watson noted in a 2019 decision that despite some apparent physical challenges, Bert made his position clear and appeared to understand the proceedings. He concluded that Bert could represent himself. [ 42 ] Bert did not personally file a brief in this matter, but the Amicus , Ms. Locke, filed a detailed brief to assist this Court, inter alia , in understanding the capacity issues raised. Ms.

Locke concluded that “not only is [Bert] capable of participating in these proceedings but he appears to raise his alleged incapacity as a way of disrupting any application or proceeding that is adverse to his interest”. [ 43 ] As in AF v Alberta , 2020 ABQB 268 , if a disability prevents a litigant from advancing their action, they must present evidence and establish the proof of that disability on a balance of probabilities. Here, Bert has not met this burden and I accept that there was no disability that prevented the operation of Rule 4.33 .

Were there any steps in a related action that would constitute a significant step in this action? [ 44 ] On the question of whether steps in related actions suspended the running of time in this action, Ms. Locke relies on the law in Angevine v Blue Range Resource Corp , 2007 ABQB 443 at para 41 .

To determine if a related action is “inextricably linked” to the primary action, the following factors are to be considered. 1) Are the two actions inextricably linked in the sense that the result in the related action would be “legally or factually determinative” of the issues in the primary action? 2) Will the issue determined in the related action be “relevant and binding” in the primary action? 3) Does the related action materially advance the primary action? 4) Could the decision in the related action be a “barrier in law” to the Court’s adjudicating the primary action? (See Malcolm paras 74-76 .) [ 45 ] Bert commenced two separate actions in 2017: one against the counsel acting for his sisters and the other against his sisters and their husbands.

Both actions were dismissed. Neither of these actions narrowed the issues in his DRA Claim. [ 46 ] I will now address whether steps in the Passing of Accounts Application advanced the DRA Claim. [ 47 ] Renke J heard the Passing of Accounts Application in June 2018, and issued a decision on October 5, 2018, which dealt with several issues including: the passing of accounts, setting compensation of the Personal Representatives, determining if there was any pre- taking that was unwarranted, evicting Bert from the farm, and selling the property (October 5 Decision). That decision was appealed.

On February 1, 2019, Court of Appeal stayed the eviction and sale of property. On December 17, 2019, the Court of Appeal partially allowed Bert’s appeal of the Application, reducing the award of the Respondent beneficiaries’ costs. [ 48 ] I must functionally examine the October 5 Decision in accordance with Heikkila v Apex Land Corp , 2011 ABCA 87 and Alghazawi v Alberta , 2019 ABQB 208 , to determine whether it had any significant impact on the DRA Claim.

In other words, if there had been any action taken in that Application that could be said to have advanced Bert’s DRA Claim or narrowed the issue that related to his Claim, then the Strike Application would fail. [ 49 ] Ms. Locke, as Amicus , argues that without a formal bifurcation order, the quantum and liability issues in the DRA Claim are inextricably linked pursuant to Angevine . Ms.

Locke further states that the standing of Bert’s lease on the farm and his executor compensation are tied to the question of his entitlement to a DRA Claim and not just relevant to the quantum portion. [ 50 ] In reviewing Justice Renke’s decision of October 5, 2018, I note that several matters were resolved that are pertinent to the DRA Claim.

This includes determinations of the Personal Representative’s compensation and set off for pre-taking, eviction of Bert from the farm, and sale of the property. [ 51 ] I agree that these issues constitute functional steps, as noted by the Amicus , as they advanced or narrowed Bert’s DRA Claim in an essential way considering its nature, value, importance and quality. [ 52 ] First, the final determination of the compensation Bert was to receive constitutes part of his income and speaks to his ability to support himself. His ability to stay on the farm relates directly to his cost of living.

Under s 93 of the WSA , the matters to be considered for a DRA Claim (now a Family, Maintenance and Support Claim) include the capacity to contribute to one’s own support.

The determination of Bert’s compensation as well as the validity of the lease agreement between the deceased and Bert relate to assets and income and are relevant to his entitlement as a dependant. [ 53 ] In my view, the final determination of the status of the lease on the farm and the Personal Representative’s compensation increased the quality of the information such that the parties and the court would be in a better position to rationally assess the merits of the DRA Claim and either settle or adjudicate the action. [ 54 ] Ms.

Locke argues, and I agree, that the standing of Bert’s lease on the farm and his ultimate executor compensation are linked to the question of his entitlement to make his DRA Claim in the first instance, and not just on the quantum portion. Thus, the October 5

Decision establishes a significant time marker in the assessment under Rule 4.33. [ 55 ] Bert has clearly experienced complex medical issues that may entitle him to a dependency claim. As this Strike Application seeks to terminate his rights entirely, it has serious implications on his livelihood; any doubt as to whether there was a significant advance in an action ought to be resolved in his favour.

The Applicants may, at the end of the day, be successful in having Bert’s Claim denied, but it cannot do so in a situation where factors relevant to the DRA Claim were clarified or narrowed in a related action (even if they remain fluid and not completely finalized). [ 56 ] As I conclude that the issues in Bert’s Claim are clarified and narrowed by Renke J’s October 5 Decision, which constitutes a significant step in this action, the Strike Application is denied. [ 57 ] However, as there has been a frustrating lack of movement in the DRA Claim in addition to a further protracted period of inaction that has passed even since the October 5 Decision (which period did not form part of the Application before me), I am putting in place the following Procedural Order pursuant to Rule 4.33(3) with deadlines that are peremptory on Bert. • Bert must submit an update affidavit with evidence of his entitlement to the DRA Claim by no later than September 1, 2023; • Any response affidavit by the other parties must be submitted by no later than September 15, 2023; • Questioning on affidavits must be completed by no later than October 27, 2023; • Any responses to Undertakings must be completed by November 24, 2023; • Any further questioning on Undertakings must be completed by December 15, 2023; • Some form of Alternative Dispute Resolution must be completed by December 22, 2023, and; • A two-day trial of an issue (entitlement to the DRA Claim) must be scheduled by January 12, 2024. [ 58 ] All parties must respond to correspondence seeking dates for the above steps within 48 hours of it being sent, failing which they are deemed to have waived their right to agree to any date selected by the other party.

V. Conclusion [ 59 ] For the reasons stated above, the Application is denied. The Passing of Accounts Application is inextricably linked to the DRA Claim such that Renke J’s October 5 Decision clarified and narrowed the issues in the DRA Claim. This therefore constitutes a significant step in the Action within the 3 years preceding the filing of the Strike Application . [ 60 ] Should the parties be unable to agree on costs, they have leave to bring the issue back before me. Heard on 30 th day of June, 2023. Dated at the City of Edmonton, Alberta this 3 rd day of August, 2023. A. Loparco J.C.K.B.A.

Appearances: Bert Vanmaele Self-Represented Respondent Victoria A. Jones de Villars Jones LLP for the Applicant Rosa Vanmaele

Karen M. Rackel, KC Rackel & Company LLP for Mary and Rita Vanmaele Jennifer Locke River Rock Law Amicus Curiae David J. Koski The Estate House for the Estate