Docket: CACV2390 Raymond Harding (Respondent) Appellant - v. -, 2014 SKCA 74

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 74 Date: 2014-07-04 Between: Docket: CACV2390 Raymond Harding (Respondent) Appellant - and - Anita Harding (Petitioner) Respondent Coram: Richards C.J.S., Caldwell and Herauf JJ.A. Counsel: Eric J. Neufeld, Q.C. for the appellant Merrilee Rasmussen, Q.C. for the respondent Appeal: From: 2013 SKQB 78 Heard: April 24, 2014 Disposition: Allowed Written Reasons: July 4, 2014

By: The Honourable Mr. Justice Caldwell In Concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Herauf Caldwell J.A. [ 1 ] The appellant, through the executor of his estate, appeals from the decision of the chambers judge not to exercise the inherent jurisdiction of the Court of Queen’s Bench to strike the respondent’s petition for want of prosecution. The respondent commenced her claim for a division of matrimonial property [1] over 16 years ago under The Matrimonial Property Act , S.S. 1979, c. M-6.1 (repealed March 1, 1998).

I would grant the appeal for the reasons that follow and I would order the respondent’s claim struck for want of prosecution. [ 2 ] The first year or so of this litigation saw the parties exchange pleadings and file lis pendens and saw the court order an interim distribution of matrimonial property. For nearly 12 years thereafter this matter lay dormant with uncompleted discoveries adjourned sine die . The respondent and the appellant continued their spousal relationship, to one degree or another, during this hiatus.

The respondent resurrected her property claim by filing a notice of intention to proceed two months after the appellant’s death. The chambers judge set out the peculiar background to this circumstance in his reasons: [5] Anita and Raymond Harding were married in 1974. When they married, the petitioner had a 10-year-old son, Peter Gauley. The petitioner has, since the marriage, lived on the home quarter of the farm that the respondent owned at the time of their marriage. She is now 75 years old. [6] Peter and his wife Shelly also live on the home quarter.

After finishing high school, Peter worked with the respondent on the farm for many years. In 1989, he and his wife moved a mobile home on to the home quarter. Since 1996, Peter has lived in a house which he moved on to the home quarter to replace the mobile home. [7] In 1997, the respondent and Peter had a serious falling out. Peter was concerned that he would receive nothing for the work he did on the family farm.

In August 1997, Peter and Shelly Gauley commenced an action against the respondent … claiming approximately $508,000.00, plus interest, most of which relates to unpaid wages and monetary and other contributions to the farm. The petitioner filed the petition in this action five months later, and deposes that she did so in an attempt to help Peter receive at least some of which she felt he was entitled to. [8] There were steps taken by both parties in 1998 and 1999 to advance this action. The respondent was served with the petition in March 1998, and filed his answer on September 28, 1998.

He took the position that he was entitled to very significant exemptions relating to property he brought into the marriage, including ten quarters of land, property he inherited during the marriage, the home quarter and matrimonial home, and farm inventories of livestock, grain feed and supplies. He reported assets of $2,262,762.50, debts of $832,800.00, and the contingent liability of $550,000.00 in relation to the lawsuit commenced by Peter and Shelly. [9] In September 1998, the parties filed a joint request for a pre-trial conference.

In November 1998, the petitioner later filed a certificate of lis pendens against 14 quarters of land to which title was, and continues to be, held by the respondent. In February 1999, an appointment for the examination of the respondent was issued, and on May 14, 1999, the petitioner filed a notice of motion requesting a $500,000.00 interim distribution. On May 17, 1999, a new notice of motion for an interim distribution was filed.

That application was heard, May 19, 1999, resulting in the following flyleaf fiat by Gerein J.: I am not confident about what would be the applicant’s share of the matrimonial property, taking into account the claims for exemption, possible tax consequences and the claim by the step-son. In addition, I do not see any pressing need for money to enable the applicant to carry on in a normal fashion. The one exception is her assertion that she wishes to leave the matrimonial home and acquire an alternate residence.

She should be enabled to do so and to that end should have sufficient funds to make a meaningful payment on a house. Accordingly, I order the respondent to pay to the petitioner, within 30 days, the sum of $35,000 as an interim distribution of matrimonial property. [10] On August 3, 1999, the petitioner was examined for discovery. The examination was not completed, and the petitioner gave 15 undertakings which have not yet been answered.

On August 26, 1999, the respondent issued a certificate of lis pendens with respect to three quarters of land owned by the petitioner. [11] No further steps were taken by either party for a period of 11 years and eight months. The petitioner’s affidavit, sworn June 26, 2012, offers the following explanation for this very lengthy period of inaction at para. 6: 6 ... While we worked hard to achieve a settlement of all these issues through mediation and I did obtain an interim order for payment to me of $35,000 to enable me to buy a house in Watrous, we were never able to finally resolve the issues.

I didn't move into the house in Watrous, because I was afraid of what Raymond might do to Peter and his family if I wasn't there, and that Raymond might make Peter move his house off the home quarter ... Raymond and I continued to live together as spouses in our house on the home quarter. Neither of us took any steps to advance the legal proceeding, the purpose of which was never separation or divorce. [12] On March 31, 2011, three weeks after the respondent’s death, Mr. Warkentin advertised for creditors in his capacity as executor of the respondent’s estate.

The petitioner made a claim in the amount of $5,700.00, and Peter Gauley and Gauley Farms made a claim for

$434,785.00. Although counsel for the respondent says this claim duplicates the claim made in Peter’s 1999 action, there is no evidence to that effect. The two claims are separately listed in the Executor’s Report dated May 31, 2012 … That report estimates the total value of the estate's assets as $2,576,320.96, with claims against the estate of $976,446.00. It estimates the value of the home quarter as $310,760.00. [13] On May 6, 2011, two months after the respondent’s death, the petitioner filed a notice of change of solicitors and a notice of intention to proceed with this action.

Those documents were served on the respondent’s solicitor August 26, 2011. On September 2, 2011, the petitioner served a notice of motion under The Dependents’ Relief Act, 1996 , S.S. 1996, c. D-25.01 . [14] No further steps were taken in this action until May 28, 2012, when the petitioner served a second notice of intention to proceed. In her brief, counsel for the petitioner states that step was taken as counsel for the respondent insisted it was necessary.

On June 27, 2012, the petitioner served a notice to disclose documents, a notice to answer written questions, a notice of motion to transfer the action to Regina, and the notice of motion for an interim distribution or exclusive possession presently before the court. [ 3 ] Under the appellant’s will, the respondent was to receive all of the appellant’s personal effects, all grain inventory, a vehicle and four quarters of land, including the home quarter.

The bequests of grain inventory and vehicle will apparently fail as the appellant transferred those assets, along with other farm assets, to his farming corporation prior to his death. In his will the appellant also specifically bequeathed five quarters of farm land to his sisters and a friend and made several cash bequests to various persons; but, he left considerable residue to his sisters, including ten quarters of land and, on the executor’s

interpretation of the will, all of the shares in his farming corporation. The appellant made the following declaration in his will: 11.

NO FURTHER PROVISION FOR ANITA HARDING I DECLARE that I have not made any provision for my wife, ANITA HARDING, in this my Last Will and Testament as my said wife, ANITA HARDING, is financially independent and, based on the bequests which I have made to ANITA HARDING in this my Last Will and Testament and based on the lands and assets owned by ANITA HARDING, she has received an equal share of the family property of myself and her and adequate provision has been made for ANITA HARDING. I make this direction having been advised of the implications of The Family Property Act , S.S. 1997, c.

F-6.3, and The Dependants’ Relief Act, 1996 , S.S. 1996, c. D-25.01, … and I declare that any bequest in this my Last Will and Testament shall be exempted from any distribution resulting from an application by ANITA HARDING pursuant to the provisions of The Family Property Act and/or The Dependants’ Relief Act, 1996 … [ 4 ] In her column of family property, the respondent apparently has three quarters of land, her personal effects, cash accounts and, possibly, some cattle.

She had other assets at the time she filed her petition. [ 5 ] As to possible exemptions, the materials indicate the appellant had ten quarters of land and a sizeable farming operation when he and the respondent married in 1974 and that he later inherited four quarters of farm land from his father and uncle. [ 6 ] Although entitled to do so, in part by reason of s. 30 of The Family Property Act, S.S. 1997, c. F-63, the respondent did not discontinue her claim under her 1998 petition and file a petition afresh within the six months after the appellant’s death.

Rather, she elected to continue her 1998 claim and we were given to understand that for a time after the appellant’s death his executor and the respondent negotiated with a view to settling the matter. Ultimately the negotiations failed and the respondent brought an application for an interim distribution of family property from the estate. In response, the executor brought this application to have the respondent’s petition struck for want of prosecution. [ 7 ] In his consideration of the executor’s application, the chambers judge correctly identified International Capital Corporation v.

Robinson Twigg & Ketilson , 2010 SKCA 48 , 319 D.L.R. (4th) 155, and the approach described therein by Richards J.A. (now C.J.S.), as governing. In that case, Richards J.A. refined the process for determining whether an action ought to be struck for want of prosecution under a three-step approach involving inquiries as to whether: (

i) the delay was inordinate; (ii) the delay was excusable; and (iii) it might be in the interests of justice that the case proceed to trial notwithstanding the delay (at paras. 43-45). This basic three-step approach is now reflected in Rule 4-44 of The Queen’s Bench Rules . [2] [ 8 ] In International Capital Corporation , Richards J.A. also identified a non-exhaustive list of factors for the court to consider under the third leg of the approach, including (at para. 45): (

a) the prejudice to the defendant if the matter were to go to trial; (

b) the length of the inexcusable delay; (

c) the stage of the litigation; (

d) the impact of the inexcusable delay on the defendant; (

e) the context in which the delay occurred; (

f) the reasons for the delay; (

g) the role of counsel in causing the delay; and

(

h) the public interest. [ 9 ] In this case, after the chambers judge had considered the first and second legs of the International Capital Corporation approach, he concluded there was “no doubt” the prosecution of the respondent’s claim had been inordinately delayed, but it was “less clear” the delay was inexcusable given the paucity of evidence on the issue from the respondent.

Perhaps because of this, he proceeded almost perfunctorily to determine the appellant estate’s application under the third leg, concluding the respondent had there successfully repelled it: [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 ] As to his reasoning under the third leg, the chambers judge noted several factors raised by the appellant as weighing in favour of dismissing the respondent’s claim, namely, the appellant and another key witness had died, files in the hands of the appellant’s former lawyers had been destroyed, the claim was not at an advanced stage and was not significantly further ahead than it had been 14 years previous, litigation would delay completion of probate of the appellant’s estate, and the respondent had offered no significant explanation for the delay.

He named no other factors as supporting the appellant’s application. [ 11 ] On the other hand, the chambers judge rejected the appellant estate’s submission that the court ought to be concerned about the respondent’s motivation for seeking a division of matrimonial property. This submission arose because the respondent acknowledged she had initiated her claim solely to assist her adult son (the appellant’s stepson) to obtain what the respondent felt was his rightful entitlement in respect of the family farm.

The appellant estate described this motivation as “tantamount to abusing the court’s process” and as the respondent attempting to take advantage of the appellant’s death. In rejecting these submissions, the chambers judge said: [34] I do not agree. As noted above, there are other and equally plausible explanations as to why the petitioner commenced this action and failed to proceed until the death of her husband. It is, for example, reasonable to conclude that she thought that if she had title to her share of the family property, she could take care of her son.

Further, and with respect, I do not agree with the suggestion that it would be improper for the petitioner to attempt to use this litigation as a bargaining tool. There is no evidence that occurred. Even if there were, there is nothing extraordinary or inappropriate in a plaintiff commencing an action and seeking to negotiate to achieve his or her goals. [ 12 ] The chambers judge then turned to address what he found to be the key consideration under the third leg of the International Capital Corporation approach, namely, s. 30 of The Family Property Act : 30

(1) An application for a family property order may be made or continued by a surviving spouse after the death of the other spouse or may be continued by the personal representative of the deceased spouse.

(2) No application by a surviving spouse for a family property order may be commenced more than six months after the date of the issue of a grant of probate or administration for the estate of the deceased spouse. [ 13 ] In interpreting this provision, the chambers judge said: [35] In any event, I agree with the petitioner that the key consideration in determining whether it is in the interest 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. [Emphasis added] The chambers judge then dismissed the appellant estate’s application. [ 14 ] In my respectful opinion the chambers judge erred in his assessment of the implications of s. 30 of The Family Property Act .

In practical terms, this error led the chambers judge to (

i) unduly discount the prejudice suffered by the appellant’s estate by reason of the delay in this case, and (ii) fail to fully consider all of the relevant factors under the “interest of justice” leg of the International Capital Corporation approach, thereby unduly minimising the factors weighing in favour of striking the respondent’s claim. I find this is a reversible error that calls for appellate intervention and a fresh examination of the relevant factors.

[15] To start, I would underline that the inherent jurisdiction of the court to control its own process in this way (by striking a claim forwant of prosecution) is a procedural power that is invoked with respect to the process of litigation. The Court of Queen’s Bench oftenavails itself of its inherent jurisdiction to make orders that ensure due process of law, prevent vexation, do justice between parties andensure the fair trial of claims brought before it.

Where a defendant seeks to rely on the court’s inherent jurisdiction to have a claimstruck, whenever a judge exercises that power the order necessarily nullifies the plaintiff’s procedural right to have the case heard on itsmerits. As to the general reason for this, see Rimmer v. Adshead, 2002 SKCA 12, [2002] 4 W.W.R. 119, where Cameron J.A. said: [53] … [T]he court possesses the inherent power to prevent abuse of its process. (See, for example Boychuk v. Estate of Boychuk(1994), (SK CA), 116 Sask. R. 54 (Sask. C.A.) and Castanho v. Brown & Root (U.K.) Ltd, [1981] 1 All E.R. 143(H.L.).

Lord Scarman, speaking for the House of Lords in Castanho at p. 148, commented upon this power in these terms: “The court hasinherent power to prevent a party from obtaining by the use of its process a collateral advantage which it would be unjust for him toretain.” [16] This is why, under the third leg of the International Capital Corporation approach, the court asks whether it is in the interest ofjustice that the plaintiff’s action proceed to trial notwithstanding undue and inexcusable delay in its prosecution.

This is the failsafecomponent of the approach, allowing the court to preserve an action, which otherwise ought to be struck, because the interests of justicedemand a determination on its merits. In other words, the court may decline to exercise its inherent jurisdiction and thereby save anaction where doing so will be in the interests of justice. [17] In this sense, when I review the chambers judge’s reasoning in this case, I respectfully find he erred in his assessment of theimplications of s. 30 of The Family Property Act. Let me preface my analysis with a précis of the chambers judge’s

interpretation. Hesaid: s. 30 tolerates the prejudice resulting from the death of a spouse or key witness and therefore should be tolerated here. In practicalterms then, the chambers judge concluded s. 30 statutorily renders largely irrelevant what is commonly a critical factor in thedetermination of the interests of justice in an application of this nature: whether the defendant will suffer serious prejudice in mounting adefence to the action if it proceeds.

It is axiomatic in this context that to do justice as between the parties to an action the court must haveregard to all of the relevant circumstances, including, but not limited to, those factors Richards J.A. identified at para. 45 of InternationalCapital Corporation. That is, the court must scrutinise each relevant factor, determine which side of the scale it favours and its weightand, because the third leg is a failsafe, the court must conclude that the overall weight of its findings tips the scales in favour ofpreserving the action; otherwise it must strike the action.

As such, the chambers judge’s assessment of the implications of s. 30 self-evidently curtails the court’s competence to exercise its inherent jurisdiction to control its own process. [18] This assessment is concerning because The Survival of Actions Act, S.S. 1990-91, c. S-66.1, s. 4, contains a provision similar to s.30 of The Family Property Act, but of general application to all civil proceedings.

If the chambers judge’s assessment of the implicationsof s. 30 were correct, then the death of a defendant in any civil matter languishing from delay could effectively cure the delay andthereby save the litigation, without regard for the prejudice that might have befallen the defendant or the defendant’s estate by reason ofthat death or otherwise by reason of delay.

The Survival of Actions Act has not before been interpreted as having this saving effect. [19] Rather, it is clear to me that the scheme of s. 30 was intended to ensure that a deceased’s estate was put in the same position withrespect to an action for the division of family property, whether made by or against the deceased, as the deceased would have been if heor she had not died. The

section does not create a new right of action, rather it preserves whatever rights were vested in the deceased andthe petitioner or respondent, as the case may be, at the time of the deceased’s death. In Donkin v. Bugoy, (SCC), [1985]2 S.C.R. 85, Estey J., speaking for the majority, interpreted s. 30(1) of The Matrimonial Property Act, 1979, which is the predecessor toand reads the same as s. 30(1) of The Family Property Act, as follows (at p. 92): … Subsection 30(1) reflects the Legislature’s desire to respect the wishes of the deceased as expressed by his or her application to dividethe assets of the marriage.

To consider the death of the applicant or the provisions of a will which disinherits the other spouse would beto render virtually meaningless the power given to an estate to continue the MPA application already commenced.

By the same token,the provision in subs. (1) of s. 30, allowing the surviving spouse to commence an application after the death of the other spouse, ensuresthat a spouse who remains in an unhappy marriage is not worse off than if separation had been sought while the other party was alive. [20] Following discussion as to the interplay between The Matrimonial Property Act and The Intestate Succession Act, R.S.S. 1978, c.

I-13, under s. 30(3), which prohibited the court from considering amounts payable to a surviving spouse under the latter Act in making adistribution under the former Act and provided that no order made under the former Act affected the rights of a surviving spouse underthe latter Act, Estey J. wrote (at p. 93): The result is that the position of the personal representative of the deceased spouse in law under the MPA is the same as thoughthe application had been processed during the lifetime of that spouse. This is further supported by s. 31 of the MPA.

That sectionprovides in part that where an application is continued under s. 30, as is the case here: ... this Act applies mutatis mutandis in respect of the estate of the deceased spouse, and the property of the deceased spouse, whether ornot it has vested in the personal representative, is matrimonial property that is subject to this Act. [21] Although the context of a 15 year delay was not before the court in Donkin v. Bugoy, the majority’s

interpretation of s. 30 of TheMatrimonial Property Act remains relevant and confirms that the assessment of the implications of the equivalent

section of The FamilyProperty Act in this case is in error. The majority decision in Donkin v. Bugoy directs the court to process the respondent’s claim asthough it were being processed during the lifetime of the appellant, but this direction does not logically preclude the court fromconsidering the fact of and the implications of the appellant’s death in an application to strike for want of prosecution.

That is to say, therespondent’s claim may be processed as though the appellant were still alive but, when it comes to preserving the right of the appellantto have the claim dismissed for want of prosecution, the court may nevertheless consider the prejudice to the estate’s ability to defendthe claim that resulted from the appellant’s death. [22] Moreover, I find no rational purpose for excluding this prejudice from consideration. The statutory right of a plaintiff to continue acivil action against a defendant who has died, whether under The Family Property Act or The Survival of Actions Act, has no bearing on

whether the action should be dismissed for want of prosecution. Where a plaintiff commences an action before the defendant’s death and continues it thereafter, the plaintiff’s right to do so does not help determine whether there has been an intervening inordinate and inexcusable delay. Furthermore, where an inordinate and inexcusable delay has been established, it would seem anomalous if the fact of the defendant’s death, which presumably usually gives rise to some prejudice in the defence of the action, could somehow save the action from being struck.

This is surely inconsistent with the scheme of The Family Property Act and the intention of the Legislature in enacting ss. 30-37 of that Act . In Donkin v. Bugoy , Estey J. said the intention of the Legislature was to ensure that a spouse who remains in an unhappy marriage is not worse off than if separation had been sought while the other party was alive.

The corollary, which is applicable here, was left unsaid: it was not the Legislature’s intention in enacting s. 30 of The Family Property Act to make a spouse better off by reason of the other spouse’s death. [ 23 ] I respectfully find, therefore, that the chambers judge acted upon a wrong principle of law by assessing the implications of s. 30 of The Family Property Act as “tolerating” some of the prejudice which had befallen the appellant in this case.

The effect of this error was an undue discounting of the prejudice suffered by the appellant, which occurred through a failure to consider a number of facts relevant under the third leg of the approach.

For these reasons, I have reassessed the factors relevant under the third leg of the International Capital Corporation approach in this case as follows. [ 24 ] As to the first factor (prejudice to the defendant), while generally recognising that the appellant and another key witness had died and that the appellant’s lawyers had destroyed their files, the chambers judge did not fully appreciate the serious prejudice to the appellant’s estate resulting from the inordinate delay in this matter.

For example, the death of the appellant means an executor (who is unfamiliar with the history of this matter and the details of the exemptions claimed by the appellant) now has charge of the litigation. The appellant’s financial advisor (who was to confirm his belief that all files with respect to the appellant’s personal and farm financial affairs had been destroyed) died in June 2012. The memories of surviving witnesses have presumably faded. Those records of the appellant’s affairs that are in the hands of his executor are incomplete.

The appellant was not examined for discovery before his death and the respondent will have to be re-examined for discovery. There have been significant changes in family property and liabilities in the ensuing 15 years. The appellant and respondent have each long since sold or replaced many of their respective farming assets and have accounted for 15 years of farm income and expenses. After 1998, the appellant inherited assets in respect of which he might have claimed an exemption were he living. The appellant incorporated his farm in 2010.

The executor has now sold all of the farm equipment that had been transferred to the farming corporation. The executor will have to significantly amend the answer and financial statement filed by the appellant in response to the respondent’s claim. The litigation and the lis pendens filed by the respondent have and continue to delay liquidation and distribution of the appellant’s estate. This means the litigation has and will continue to increase the costs of administering the appellant’s estate.

While the executor attests he has attempted to generate revenue from the lands encumbered by the respondent’s lis pendens , he has leased them only on a year-to-year basis given the uncertainty of the circumstances. As such, there is some risk further delay might result in a diminution of the overall value to the beneficiaries of the specific bequests of land and of the value of the residue of the estate.

In sum, under full examination, the circumstances here reveal the inordinate delay has caused considerable, serious prejudice to the appellant’s estate, which off the start tips the scales heavily in favour of striking the respondent’s claim. [ 25 ] Although he does not mention the second factor (length of delay), it is clear the chambers judge considered the respondent’s over 11 year hiatus from pursuing her claim as weighing in favour of striking it. To this I would add that the total delay now exceeds 16 years.

The third factor (stage of litigation) weighs similarly on the scales because the claim is still in its preliminary stages, with uncompleted pre-trial matters like discovery; and this remains so even though the appellant died over three years ago. [ 26 ] With the death of the appellant there was no evidence as to how his wife’s lingering property claim might have affected him personally or in his daily life, which is the fourth factor (impact on defendant).

For this reason, the best that may be said is this factor weighs neither in favour of nor against striking the respondent’s claim, even though the executor’s inability to tender evidence to address this factor may be illustrative of prejudice resulting from the delay and the appellant’s death (the first factor). [ 27 ] The fifth factor (context) is either similarly neutral or weighs marginally in favour of proceeding with the claim. If it weighs to the respondent’s benefit, it does so because there is no evidence the appellant took any steps to move the matter along during his life.

That is, it would seem both parties were content to let the matter sit in abeyance for over a decade. This circumstance takes the bluster out of any indignation on the part of the appellant’s estate with respect to the extent of the delay, but it affects the merit of its application to a lesser degree. Furthermore, like the chambers judge, I am not convinced the respondent’s motivation for commencing her petition for division of matrimonial property is at all material under the fifth factor.

I do not see how the respondent’s motive for exercising a statutory right to have her and her husband’s matrimonial property divided as between them bears upon the question of whether her action ought to now be struck. [3] I accept that a plaintiff’s motive might be so improper as to give rise to a scandalous, frivolous or vexatious pleading or to a claim that is otherwise an abuse of process of the court; but, if that were the case, presumably the defendant would move to have the claim struck under Rule 7-9 of The Queen’s Bench Rules , or the inherent jurisdiction of the court to ensure that its process is not used simply to harass, long before it became subject to being struck under Rule 4 -44.

Nevertheless, if this factor weighs toward proceeding with the respondent’s claim, I find it does not do so very heavily. [ 28 ] The respondent proffered no evidence with respect to the sixth factor (reasons for delay). Given the nature of the inquiry before the chambers judge, it was incumbent upon the respondent to at least explain why delay has occurred in her prosecution of this case, both before and after the appellant’s death. Obviously this is not to say she had to provide an excuse, as that would fall to the second leg of the approach.

But, the respondent’s failure to proffer any evidence with respect to the second leg of the approach is doubly harmful to her cause because a simple statement in her affidavit as to why delay occurred would have been prudent since it might have neutralised this factor.

As it stands, the absence of any evidence of any reason for the respondent’s over 11 year hiatus from prosecuting her claim and the delay in prosecuting the claim after the appellant’s death weighs strongly in favour of striking it. [ 29 ] The seventh factor under International Capital Corporation (role of counsel) is not relevant in this case as there is no suggestion counsel caused any part of the inordinate delay. [ 30 ] The final factor relevant in this case is that of public interest.

Simply put, there was no evidence before the chambers judge to suggest the respondent’s claim in any way gives rise to genuine issues of broader public importance or to suggest the implications and

significance of her claim stretch beyond her (and her son’

s) personal interests in seeing it resolved. More pointedly, the respondent’s circumstance is not that of the storied farm wife of yore left disinherited, displaced and destitute by the death of her cruel husband. Her circumstances do not call out to the court to intervene to address a societal unfairness. As such, this factor weighs for striking the claim. [ 31 ] On the whole of it, I find, under the third leg of the International Capital Corporation approach, that it is not in the interests of justice to preserve the respondent’s claim.

To paraphrase Richards J.A. (at paras. 40-41): “no defendant should have to wait 15 years for a trial” because delays of that sort frustrate litigants and undermine public confidence in the justice system as a whole.

The now over 16 years of delay in this case is both inordinate and inexcusable and, when fully considered and weighed, the relevant factors under the interests of justice inquiry fail to tip the scale back toward preservation of the respondent’s claim. [ 32 ] I would therefore set aside the decision of the chambers judge and order the respondent’s claim against the appellant be struck for want of prosecution. I order the certificates of lis pendens registered in furtherance of the respondent’s claim be vacated.

I order costs to the appellant in this court (including in the application for leave to appeal) and, given the reversal of the chambers judge’s order, I order costs to the appellant in the chambers application before the Court of Queen’s Bench. DATED at the City of Regina, in the Province of Saskatchewan, this 4 th day of July, A.D. 2014. “Caldwell J.A.” _______________________ Caldwell J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Herauf J.A.” Herauf J.A.