Docket: CACV2390 Raymond Harding Prospective Appellant (Respondent) - v. -, 2013 SKCA 71

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 71 Date: 2013-06-28 Between: Docket: CACV2390 Raymond Harding Prospective Appellant (Respondent) - and - Anita Harding Prospective Respondent (Petitioner) Before: Ottenbreit J.A. (in Chambers) Counsel: Eric Neufeld , Q.C., for the prospective appellant Merrilee Rasmussen, Q.C. , for the prospective respondent Application: From: 2013 SKQB 78 Heard: May 7, 2013

Disposition: Leave granted Written Reasons: June 28, 2013 By: The Honourable Mr. Justice Ottenbreit Ottenbreit J.A. [ 1 ] Anita Harding, in January of 1998, commenced an action for the division of family property against Raymond Harding (now deceased). The executor for Mr. Harding applied to have the action dismissed for want of prosecution. The Court of Queen’s Bench, in a Chambers decision found at 2013 SKQB 78 , dismissed his application. The Harding executor seeks leave to appeal that decision.

For the reasons hereinafter set forth, leave is granted. [ 2 ] A short review of the facts and background are necessary. Mr. and Ms. Harding were married in 1974. At the time of the marriage, Ms. Harding had a 10-year-old son, Peter, who after he became an adult and married, lived with his wife on the home quarter of the farm of his mother and Mr. Harding. He worked with Mr. Harding on the farm for many years. In 1997, Peter and Mr. Harding had a falling out and Peter, being concerned he would receive nothing for the work that he did on the family farm, commenced an action against Mr.

Harding claiming approximately $508,000 of unpaid wages and monetary and other contributions to the farm. [ 3 ] Ms. Harding filed a matrimonial property petition (as it was then called) against Mr. Harding approximately five months after Peter sued Mr. Harding and she did so in an attempt to help Peter receive at least some of which she felt he deserved from his work on the farm. Some steps in the family property action were taken by Mr. and Ms. Harding in 1998 and 1999. Although preparations were made for a pre-trial conference to be held, it never went ahead. In November of 1998, Ms.

Harding filed a certificate of lis pendens against 14 quarters of land to which title was held by Mr. Harding. In May of 1999, Ms. Harding filed a motion requesting interim distribution of property and obtained an order for $35,000 as an interim distribution. In August of 1999, Ms. Harding was examined for discovery but the examination was not completed and the undertakings she gave have, to date, not been answered. Shortly after the examination for discovery, Mr. Harding filed a certificate of lis pendens with respect to three quarters of land owned by Ms. Harding.

No further steps were taken by either party thereafter. [ 4 ] Mr. Harding died suddenly on March 6, 2011. Three weeks after his death, his executor advertised for creditors of the estate. Ms. Harding made a claim for $5,700, but not for any family property, and Peter made a claim for $434,785. [ 5 ] On May 6, 2011, two months after Mr. Harding’s death, Ms. Harding filed a notice of change of solicitors and a notice of intention to proceed with the action, and in September served a notice of motion under The Dependents’ Relief Act, 1996 , S.S. 1996, c. D-25.01 .

She did not make any application under s. 30 of The Family Property Act , S.S. 1997, c. F-6.3, which allows a family property petition to be continued on the death of a spouse or commenced within six months after the death of a spouse. No further steps were taken in the action until May 28, 2012, when Ms. Harding served another notice of intention to proceed. In June of 2012, Ms. Harding served a notice to disclose documents, a notice to answer written questions and a notice of motion to transfer the action to Regina from the Judicial Centre of Saskatoon.

She also applied for interim distribution or exclusive possession of property. [ 6 ] It appears that the reason why no steps were taken in the proceeding from May of 2011 to May of 2012 was that Ms. Harding and the Harding executor were attempting to settle the claim by negotiation. Negotiation apparently being unsuccessful, the Harding executor made his application to dismiss for want of prosecution. [ 7 ] In dismissing the Harding executor’s application, the Chambers judge referred to the governing law as found in International Capital Corp. v.

Robinson Twigg & Ketilson , 2010 SKCA 48 , 319 D.L.R. (4th) 155 (“ ICC ”) and correctly identified the three steps and factors for determining dismissal as therein set out. [ 8 ] The Chambers judge then proceeded to do his analysis pursuant to ICC . He determined that there was inordinate delay: [29] There is no doubt but that there was inordinate delay by the petitioner in this case. The respondent had no obligation to advance the litigation, and the petitioner did nothing for almost 12 years.

It is self-evident that this case was not so complex as to fall within the extraordinary category of cases that take a decade to conclude. [ 9 ] He also determined that he did not have to decide whether the delay was inexcusable: [30] It is less clear, however, that the delay is inexcusable. Although there is very little evidence on this point, there is a readily apparent explanation arising from the unusual circumstances of this case. This was, after all, an action for the division of family property made up primarily of a working family farm where the parties continued to live together as man and wife.

The purpose of the action was never separation or divorce. The petitioner says that she stayed with the respondent to protect her son. By doing so, she also maintained her marriage. [31] It would have been helpful if the petitioner had more clearly explained her decision not to proceed. It is, however, not necessary

that I decide whether the petitioner has cleared this hurdle. That is so due to the fact that is, in my view, clear that it is in the interests of justice that this claim proceed to trial. That is, this application fails on the basis of the third part of the ICC test. My reasons for reaching that conclusion are as follows. [ 10 ] With respect to the third consideration set forth in ICC , the Chambers judge held as follows: [35] In any event, I agree with the petitioner that the key consideration in determining whether it is in the interests of justice that this matter proceed to trial is s.30 of The Family Property Act . That

section is specifically designed to permit a surviving spouse to commence an action for the division of family property. The Legislature has decided that such an action is appropriate notwithstanding the fact that the deceased spouse is unavailable to provide evidence, whether in relation to exemptions, a claim for an unequal division of property or otherwise.

Just as in the case of the continuation of an action for division of family property commenced by a deceased spouse, the Legislature tolerates the prejudice that arises from the death of a key witness. [36] The respondent submits that the court should essentially ignore this provision, as the petitioner chose to continue her action, rather than discontinuing and commencing a new action within six months of the respondent’s death. As such, he submits that the law relating to the dismissal of actions for want of prosecution should be applied in the usual way.

In my view, that submission ignores the fact that the third leg of the ICC test is concerned with the interests of justice. The issue is accordingly substance, not form. It would not be in the interests of justice to deny the petitioner her day in court on the basis of a choice of technique which has no bearing on substance, and which would have occurred as a result of the advice of counsel. [ 11 ] He then denied Mr. Harding’s application to dismiss for want of prosecution. [ 12 ] Mr. Harding seeks to appeal the Chambers judge’s decision on the following grounds: a.

The learned Chambers Judge erred in finding that: i. paragraph 6 of the Petitioner’s affidavit filed in support of her application for interim distribution of four quarters of land, and made before the Respondent applied for dismissal, amounted to an explanation for delay in prosecuting her petition; ii. there was no evidence that the Petitioner commenced her action as a bargaining tool to support her son’s action against the Appellant; and iii. there were plausible explanations as to why the Petitioner commenced her Petition other than to support her son’s action against the Appellant. b.

The learned Chambers Judge erred in law by holding that it was unnecessary to decide whether the inordinate delay was inexcusable. c.

The learned Chambers Judge erred in law in holding that it was in the interests of justice to allow the Respondent’s Petition to proceed to trial against the Appellant notwithstanding an inordinate and inexcusable delay: i. by deciding that it was in the interests of justice to allow the Petition to proceed without first deciding if the inordinate delay was excusable or not; ii. by excusing the Respondent Petitioner’s inordinate delay under the guise of the interests of justice; and iii. by failing to address and give due weight to the appropriate considerations for assessing the interests of justice including prejudice to the Appellant Raymond Harding, length of inexcusable delay, stage of the litigation, impact of inexcusable delay on the Appellant Raymond Harding, context of the delay, reasons for the inexcusable delay and public interest. d.

The learned Chambers Judge erred in law by considering and giving weight to the prejudice to the Respondent Petitioner if her petition was dismissed for want of prosecution.

e. The learned Chambers Judge erred in law by holding that prejudice to the Appellant by the Respondent’s inordinate and inexcusable delay in prosecuting her petition was to be tolerated because of s. 30 of The Family Property Act . f. The learned Chambers Judge erred in law by holding that the key consideration in determining whether it was in the interests of justice that the Respondent’s petition proceed to trial was s. 30 of The Family Property Act . g.

The learned Chambers Judge erred in law by holding that dismissing the Respondent’s petition for division of family property for want of prosecution would be equivalent to ignoring s. 30 of The Family Property Act . [ 13 ] The test for whether it is appropriate to grant leave is well known and is set out in Rothmans, Benson & Hedges Inc. v. Saskatchewan , 2002 SKCA 119 , 227 Sask. R. 121.

It is necessary first to determine whether the proposed appeal is of sufficient merit and, secondly, whether the appeal is of sufficient importance to the proceedings before the Court, or to the field of practice or the state of law, or to the administration of justice generally, to warrant determination by the Court. Based on Rothmans , a number of subsidiary questions are central in deciding the issue of whether a proposed appeal is of sufficient merit to be considered by the Court and these include: a. Is it prima facie frivolous or vexatious? b.

Is it prima facie destined to fail in any event, having regard to the nature of the issue and the scope of the right of appeal, for instance, or the nature of the adjudicative framework, such as that pertaining to the exercise of discretionary power? c. Is it apt to unduly delay the proceedings or be overcome by them and rendered moot? d. Is it apt to add unduly or disproportionately to the cost of the proceedings? [ 14 ] Ms. Harding accepts that the proposed appeal is not brought for an improper purpose or as otherwise frivolous or vexatious. However, she argues that the appeal is destined to fail.

She points out, quite rightly, that the standard of review applicable on an appeal of a discretionary order such as made by the Chambers judge, is that the Chambers judge must have made an error in principle, disregarded material facts or made a material error of fact, failed to act judicially, or arrived at a decision that is so plainly wrong as to amount to an injustice.

To that extent, the Harding executor will have an onerous task in arguing his appeal. [ 15 ] Apart from a submission that the Chambers judge misapprehended the evidence, the Harding executor makes two main arguments in support of his application for leave. The first is that the Chambers judge erred by not following the analytical approach set forth in ICC insofar as he declined to determine if the delay was inexcusable. The second is that he erred by improperly failing to assess the prejudice of the delay to Mr.

Harding’s case and improperly considering s. 30 of The Family Property Act to be of key importance in the third stage of the ICC analysis. [ 16 ] Despite the high standard of review in this case, these arguments do not have so little merit that they are destined to fail. Although the Harding executor may have an uphill battle, he profers arguable points on the Chambers judge’s failure to follow the three step approach laid out by ICC and determine inexcusability of the delay prior to engaging the last component of ICC .

Moreover on the balancing component of the ICC test, it is clear that with respect to prejudice Mr. Harding and another key witness have died and files have been destroyed. There is at least an arguable point on this issue. The Harding executor has convinced me that he also has an arguable point and there is sufficient merit in whether s. 30 of The Family Property Act should play a substantial

part in the third stage of the ICC test where the delay is inordinate and may be inexcusable. On the whole, I am not convinced that his grounds and arguments on the proposed appeal are without merit. I am also satisfied that the other elements of the first branch of the Rothmans test have been met. [ 17 ] The second branch of the Rothmans test is engaged by both the question of whether the stepped approach of this Court in ICC regarding applications to strike can be blurred in its application and the issue of the effects of s. 30 of The Family Property Act respecting the third step.

To that extent, the proposed appeal may deal with new issues and further develop the law with respect to the application of the ICC principles. [ 18 ] The Harding executor has satisfied me that this is an appropriate case, pursuant to the test in Rothmans , for the granting of leave to appeal based on the proposed Notice of Appeal. I conclude based on all the foregoing that leave should be granted in this case. Costs of the application are left to the panel which hears the appeal. DATED at the City of Regina, in the Province of Saskatchewan, this 28 th day of June, A.D. 2013. “Ottenbreit J.A.” Ottenbreit J.A.