Schening v Steel, 2020 SKCA 137

Court of Appeal for Saskatchewan Docket: CACV3361 Citation: Schening v Steel , 2020 SKCA 137 Date: 2020-12-10 Between: Rosalie Fern Schening Appellant (Respondent) And Kenneth Arden Steel Respondent (Petitioner) Before: Caldwell, Whitmore and Kalmakoff JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Mr. Justice Whitmore The Honourable Mr. Justice Kalmakoff On appeal from: FLD 328 of 2007, Saskatoon Appeal heard: September 16, 2020 Counsel: Randal Touet for the Appellant John Rozdilsky for the Respondent Caldwell J.A. I.

INTRODUCTION [ 1 ] Rosalie Fern Schening appeals against the dismissal of her application for an order striking the petition brought against her by Kenneth Arden Steel under The Family Property Act , SS 1998, c F-6.3 [ FPA ], for want of prosecution. For the reasons that follow, I would allow the appeal, strike Mr. Steel’s petition, vacate the certificate of pending litigation registered against Ms. Schening’s property [CPL], and order Mr. Steel to pay costs to Ms.

Schening in this Court and in the Court of Queen’s Bench. [ 2 ] The discretionary standard applies in the appellate review of a decision in an application under Rule 4-44(

a) of The Queen’s Bench Rules to dismiss an action for want of prosecution ( International Capital Corporation v Robinson Twigg & Ketilson , 2010 SKCA 48 at para 19 , 319 DLR (4th) 155 [ ICC ]). In ICC , Richards J.A. (as he then was) applied the discretionary standard of review as described in B. (D.) v C. (M.) , 2001 SKCA 9 at para 5 , 203 Sask R 308: [5] …The standard of review applicable to an appellate court’s consideration of an appeal from a decision involving a judge’s exercise of discretion is decidedly narrow. Before an appellate Court will intervene in such a case, it must conclude that the judge of first instance: (

a) acted upon some wrong principle of law; (

b) took into consideration irrelevant factors; (

c) overlooked or misapprehended some material evidence; (

d) failed to act judicially; or (

e) was so clearly wrong that the decision will result in an injustice. II. BACKGROUND [ 3 ] The procedural background to this appeal begins on November 1, 2007, when Mr. Steel commenced family law proceedings against Ms. Schening under the FPA . Under a petition, he sought exclusive possession of the family home, division of family property, division of the family home and costs. Ms. Schening filed an answer and counter petition on March 3, 2008, asserting that she had never been Mr. Steel’s spouse , as defined in the FPA . [ 4 ] In October of 2008, Mr.

Steel applied, inter alia , for an order adding a third party as a respondent under his petition. Justice Ryan-Froslie (as she then was) adjourned the application sine die and directed a viva voce hearing “on the sole issue of whether the petitioner and respondent are spouses within the meaning of the [ FPA ]”. Following this, Ms. Schening submitted to examination for discovery (as it was termed under the former Rules ) in November of 2008. Mr. Steel canceled his own examination for discovery in December of 2008, without rescheduling it. As Mr.

Steel had not been examined for discovery, the pre-trial conference scheduled for February 26, 2009, was adjourned sine die . There was no subsequent contact between the parties or their counsel until November 30, 2017, when Mr. Steel’s counsel served and filed a notice of withdrawal. Nothing occurred after that until January 11, 2019, when Ms. Schening brought an application seeking to strike the petition for want of prosecution under Rule 4-44(a), as well as seeking orders vacating the CPL and for costs. [ 5 ] The Chambers judge who heard Ms. Schening’s application dismissed it. He concluded that, while Mr.

Steel had “not done anything since 2008”, Ms. Schening had an obligation to move the proceedings forward and had not done so either. As the Chambers judge’s fiat is unreported, I have reproduced it in full below:

Having heard counsel for the respondent, having read their material, and having heard the petitioner on his own behalf and having reviewed his material – it is my view that both parties have to bear some of the blame for not moving this matter along. In this particular case, Mr. Steel, the petitioner, has not done anything since 2008 as a result of not being able to afford his legal counsel and then having to deal with some health issues for his parents and more recently health issues for his present spouse and his brother.

Additionally, the respondent has not done anything to re-schedule the questioning or examination for discovery of the petitioner. I suspect that had the petitioner wanted to move the matter onto management pretrial conference that the respondent[’]s counsel would have insisted that he be allowed to complete questioning for that to occur. Given the direction that Madam Justice Ryan-Froslie made back in October of 2008, it is my view that both parties had a responsibility to move this matter onto a viva voce hearing, which did not occur.

As a result, I am [not] prepared at this stage to strike the petitioner[’]s petition for want of prosecution and their application in that regard is dismissed. Therefore, not striking the petition makes the application to vacate the CPL moot and in my view this matter needs to move along. Therefore I am going to move the matter along because the respondent needs to have some finality to this claim. III.

ANALYSIS [ 6 ] In ICC , Richards J.A. laid out a three-step approach for judges who are called upon to decide whether a claim should be struck for want of prosecution under what is now Rule 4-44(a): [43] The first step, as set out in Carey v Twohig , is an inquiry about whether the defendant has established that the delay in moving a case ahead has been inordinate. This will involve considering the time the plaintiff has taken to get the litigation to the point where the application to strike is brought and comparing that lapse of time to what might typically be expected in a case of similar complexity.

This is necessarily a matter of informed judgment grounded in the overall experience of the court and the particulars of the file in question. [44] The second step in the analysis, again as per Carey v Twohig itself, is an examination of the reasons for the delay aimed at determining whether it is excusable. This inquiry will entail consideration of the nature of the claim, the diligence with which the claim has been pressed by the plaintiff, and the specific reasons offered as to why the matter has not moved more quickly.

A wide variety of factors might be expected to factor into this assessment. [45] The third step of the approach is where the refinement of the Carey v Twohig approach arises. It is this. If the court finds delay to have been both inordinate and inexcusable, it should not consider the issue of “serious prejudice” as a discreet question. Rather, it should move directly to the issue of whether it is in the interests of justice that the case proceed to trial notwithstanding the delay and should consider the issue of prejudice in that context. … A.

Reversible error in principle [ 7 ] As may be observed, the Chambers judge’s fiat does not reference ICC or the three-step approach laid out therein. While the mere absence of reference does not give rise to reversible error given the fly-sheet nature of the fiat, I am also unable to conclude that the Chambers judge conducted the analysis required under Rule 4-44(a). The fiat contains a finding that Mr. Steel had “not done anything since 2008”, which is followed by a

summary of the reasons he had put forward to explain that fact. However, the Chambers judge’s fiat lacks an assessment of, and contains no findings as to, the considerations set forth in ICC , i.e., whether the ten-year delay in this case was inordinate and, if so, whether it was excusable or, if that delay was inexcusable, whether the FPA action ought to proceed in the interests of justice. There is no analysis akin to ICC . [ 8 ] Moreover, the analysis set out in the Chambers judge’s fiat is inconsistent with ICC in large measure.

The fiat begins with the conclusion that both parties “bore some of the blame” for the ten-year delay. However, after reciting the reasons Mr. Steel had given for failing to advance his claims against Ms. Schening, the fiat proceeds on the basis that Ms. Schening should have advanced the litigation but did not do so.

While a defendant’s failure to take steps to advance litigation is relevant under the third step of ICC , the efforts of the plaintiff are and should be the focal point of the analysis under all three steps of ICC (see, ICC , Morsky Construction Ltd. v Nickle Lake (Regional Park Authority) , 2016 SKCA 110 , 485 Sask R 32 [ Morsky ], and Stilborn v SaskPower , 2018 SKCA 97 ). When assessing the factors relevant to whether litigation ought to be permitted to proceed in the face of an inordinate and inexcusable delay, a defendant’s failure to do anything to help bring matters to a head may be weighed in the balance.

In ICC , Richards J.A. said that “if it can be shown that, for his or her own reasons, a defendant was content to let a file sit in abeyance, that would weigh in favour of letting a claim proceed” (at para 45(e)). [ 9 ] In this appeal, Mr. Steel sought to support the Chambers judge’s fiat by proposing a more equal sharing (as between plaintiff and defendant) of the burden of advancing litigation.

However, I find no merit to his submission that the foundational principles under the new Queen’s Bench Rules alter the proper approach to an application to strike a claim for want of prosecution. [ 10 ] On July 1, 2013, the Court of Queen’s Bench adopted the new Rules. However, this Court found that the ICC approach remains applicable under new Rule 4-44(a) ( Harding v Harding , 2014 SKCA 74 at para 7 , 48 RFL (7th) 110) and, therefore, its focus remains on the plaintiff. This is so even though Rule 1-3(3)(

a) lays out the foundational principle that all parties to an action must “identify or make an application to identify the real issues in dispute and facilitate the quickest means of resolving the claim at the least expense”. In Morsky , Whitmore J.A. confirmed that Rule 1-3(3)(

a) cannot be interpreted as imposing the burden of prosecuting a claim on the defendant: [46] In my view, the new rule [i.e. Rule 1-3(3)(a)] is in line with this Court’s treatment of the context factor in ICC and Harding .

Litigation, at its core, is adversarial in nature. The party who started the action is ultimately accountable for its progress. I do not view Rule 1-3(3) as altering this fact. However, this does not mean that the defendant has no obligation to “facilitate the quickest means of resolving the claim.” Thus, where delays are attributable to the defendant, or even where the defendant otherwise reveals that it is content with the delay, this factor weighs against the defendant and in favour of proceeding to trial.

The absence of evidence that the defendant took any steps to proceed will also weigh against the defendant, albeit marginally. See also: Saskatchewan Crop Insurance Corporation v McVeigh , 2018 SKCA 76 at paras 81-92 ; 428 DLR (4th) 122, and Agri Resource Mgt. 2001 Ltd. v Saskatchewan Crop Insurance Corporation , 2017 SKCA 35 at paras 58-63 , 68 CCLI (5th) 65. [ 11 ] Accordingly, by dismissing the Rule 4-44(

a) application on the basis that Ms. Schening should have advanced the litigation but had not done so, the Chambers judge’s decision is inconsistent with the ICC approach to applications to strike for want of prosecution. I therefore conclude the Chambers judge acted upon a wrong principle of law when assessing this Rule 4-44(

a) application. B. Application of ICC in context [ 12 ] Having found reversible error, I turn to consider afresh the application to strike. Under the first step of ICC , I have no hesitation in concluding that a ten year absence of any progress whatsoever in this family law proceeding is inordinate delay. While proceedings under the FPA can become protracted, ten years without a single step having been taken in this case is undoubtedly inordinate. [ 13 ] As to the second step, Richards J.A. said in ICC that what is now Rule 4-44(

a) involves an examination of the reasons for the delay with a view to determining whether it is excusable. This examination includes “consideration of the nature of the claim, the diligence with which the claim has been pressed by the plaintiff, and the specific reasons offered as to why the matter has not moved more quickly” (at para 44). In this case, Mr. Steel sought to justify his failure to move matters along by averring to a number of circumstances in his personal life. The reasons he gave may be generally categorised as financial- and health-related. Although there is some repetition in Mr. Steel’s affidavits, his reasons may be summarised as: (

a) financial – he was “basically homeless (staying in a friends’ basement bedroom) and financially ruined” after Ms. Schening “kicked [him] out” and, throughout the past ten years, he has always lacked the funds necessary to retain a lawyer or to move matters along; (

b) financial – he assumed Ms. Schening would advance the proceedings “as she always had funds” to do so; (

c) health – he was caring for his current spouse and her mother as well as his own mother; (

d) health – he and his spouse have “had several illnesses, a bad back, and two surgeries”; and (

e) health – he was anxious, stressed and upset “as to [Ms. Schening’s] next move and what I was going to do considering my circumstances” and he lives “with stress and anxiety of this problem and the ability to ever again trust people”. [ 14 ] When examined critically, none of the reasons Mr. Steel proffered for the delay excuse it. [ 15 ] If the circumstances merit it, a plaintiff’s financial position may excuse inordinate delay in advancing litigation. While his averments took several forms, Mr.

Steel says he has not had the funds necessary to hire a lawyer or to otherwise pursue his family property claims against Ms. Schening. He also swears that he is contributing to his household expenses, receiving Canada Pension Plan benefits and was working at one point during the past ten years. However, he provides no other details as to his financial circumstances. He does not explain how and why his financial circumstances have caused or contributed to delay. While the fact a litigant is self- represented may factor into the assessment of the delay in question, Mr.

Steel does not say why or how his financial circumstances precluded him from proceeding with his claims for ten years. Moreover, Mr. Steel does not say if or when the financial impediments to him advancing his litigation will end. [ 16 ] A plaintiff may also put forward health issues to justify an inordinate delay in civil proceedings, whether that be personal health concerns or the health concerns of persons under the plaintiff’s care ( Prairie Water Ltd. v Inland Aggregates Ltd. , 2015 SKQB 297 , 80 CPC (7th) 382).

However, to excuse inordinate delay, a plaintiff must cogently explain why the health issues in question have caused or contributed to the delay—i.e., the plaintiff must rationally link the health issues to the delay by showing how they affected the plaintiff’s capacity to advance the litigation. Where this has been established objectively on the evidence, the duration of the plaintiff’s health-related incapacity to advance matters will also become a relevant consideration ( Brown v Wawanesa Mutual Insurance Co. , 2013 SKQB 443 at para 40 , 435 Sask R 146). [ 17 ] Here, on Mr.

Steel’s affidavit evidence, his mother and his spouse’s mother had passed away by 2016, three years prior to the Rule 4-44(

a) application. His own and his spouse’s physical or health-related issues were similarly dated and of unknown duration—e.g., knee (2010), shoulder (2011), surgeries (2014), back (2016), infections (undated), colon cancer (2017-2018). While the dates coincide with his litigation inactivity, they do not account for the whole of the ten-year hiatus. Moreover, Mr. Steel did not draw the necessary causal connection between the health issues he claimed he and his spouse had experienced and the delay that has occurred in this case.

He adduced no evidence from which a judge might have inferred a causal connection either. That is, he does not attempt to explain how his health concerns contributed to the ten-year delay in this case or why they prevented him from taking even a single step to advance his claims. [ 18 ] The onus at the second step of ICC is on the plaintiff to show why an inordinate delay is excusable.

As such, if plaintiffs intend to rely on health concerns to justify an inordinate delay in advancing their own litigation, they must do more than simply list off their financial and health concerns; they must explain their financial and health concerns in sufficient detail and explain why the concerns individually or cumulatively excuse the inordinate delay or parts thereof. In short, given Mr. Steel’s affidavit evidence, I am not persuaded his financial circumstances or his health concerns, or the combination of the two, excuse the ten-year delay in this case.

Accordingly, I find that the inordinate delay in this case is inexcusable.

[ 19 ] Under the third step of ICC , the court must consider whether to permit the litigation to proceed notwithstanding an inordinate and inexcusable delay. The root issue is whether it is in the interests of justice that the case proceed to trial notwithstanding the delay. Justice Richards set out a non-exclusive list of factors for a judge to consider under the third step of ICC : (

a) the prejudice the defendant will suffer in mounting its case if the matter goes 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 offered for the delay; (

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

h) the public interest. [ 20 ] In this case, the majority of the foregoing factors weigh against allowing Mr. Steel’s FPA litigation against Ms. Schening to proceed. Ms. Schening will be prejudiced in her answer to the petition if this matter were to proceed to trial because two witnesses, who might have testified as to the parties’ prior relationship, have died since this matter went into abeyance ten years ago. Despite the elapse of now nearly 13 years, the litigation is still in its early stages and Mr. Steel has not been questioned yet. Ms.

Schening’s real property has been encumbered by a CPL throughout that time. Ms. Schening says she has experienced emotional distress as a result of the ongoing delay and unresolved litigation, which has been recognised by our courts as having a negative, emotional or psychological effect on defendants ( Greenough v Dahl , 2015 SKQB 327 at para 18 ). Finally, Mr. Steel has not proffered any compelling reason for the inordinate delay. Weighing neutrally in the balance is the fact that legal counsel did not play a role in causing the delay in this case.

The subject matter of this litigation also weighs neutrally, as it does not engage general public importance. [ 21 ] However, in the context of FPA proceedings, the tenet that a defendant (respondent) is not obliged to prosecute or to assist with the prosecution of the claims brought by the plaintiff (petitioner) does not hold the same strength as it does in other civil actions. Although I have found error in the Chambers judge’s fiat in this regard, there is some contextual merit to Mr. Steel’s assertions that Ms. Schening bore some responsibility for moving this matter along.

In terms of the pleadings, it is true that Ms. Schening had not sought any form of relief from Mr. Steel—she simply denied they were spouses. In procedural terms, although the litigation was in its infancy, Ryan- Froslie J. had ordered a viva voce hearing on the issue that Ms. Schening had raised in her answer and counter-petition, i.e., whether a spousal relationship had even existed between the parties. The resolution of that issue in Ms. Schening’s favour, even though it is not a claim for relief, would have put an end to the action entirely.

As the Chambers judge recognised, the viva voce hearing could not occur until Mr. Steel had been examined for discovery. Mr. Steel had cancelled his examination without rescheduling it, but Ms. Schening had also done nothing to compel his attendance for examination. In this context, I conclude that Ms. Schening’s lack of action weighs, albeit marginally, in favour of allowing the action to proceed.

This is, however, the only factor weighing on that side of the scales. [ 22 ] In the overall balance, I am not persuaded that the public interest would be served by allowing this FPA action to continue following an inexcusable delay of over ten years. IV. CONCLUSION [ 23 ] With all the respect that is due to the Chambers judge, I conclude he acted upon a wrong principle of law when deciding this matter and I would allow the appeal. Having assessed the circumstances afresh under the approach to Rule 4-44(

a) set forth in ICC , I would strike Mr. Steel’s petition, vacate the CPL, and order Mr. Steel to pay costs to Ms. Schening in this Court and in the Court of Queen’s Bench. “Caldwell J.A.” Caldwell J.A. I concur. “Whitmore J.A.” Whitmore J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.