Ontario Court of Appeal: Plaintiff in Will Challenge Case Deserves Her Day in Court Despite “Inordinate” Delay
Recently, in Ali v. Fruci, 1 the Court of Appeal set aside a motion judge’s dismissal of a will challenge claim for delay. The Court found that there was no “real or actual” prejudice to the defendants’ right to a fair trial despite a finding of inordinate delay. The history of the action and the Appeal decision are discussed below:
History
In February of 2008 the plaintiff commenced a claim contesting two wills executed by her aunt who had passed away in 2007. The aunt had made three wills between 1998 and 2003, with the plaintiff named as the executor and residual beneficiary of the first will. The second and third will replaced the plaintiff with the defendants in the claim, a close friend of the deceased and the deceased’s grandnephew. The action alleged that the deceased lacked testamentary capacity and was unduly influenced when she made her second and third wills.
All pleadings were completed in the action in August of 2008. Since that time no steps in the action were taken, except for some disclosure of documents in October 2011.
The Dismissal Motion
In September of 2013 the defendants moved under Rule 24.01(1)(c) of the Rules of Civil Procedure to dismiss the action for delay. Finding that the plaintiff’s delay was both unreasonable and inexcusable, and that the delay prejudiced the defendants’ right to a fair trial, the motion judge dismissed the action.
The Appeal
The Court confirmed the three-part test for dismissing an action for delay. On such a motion the defendants had to show:
- The delay was inordinate or unreasonable;
- The delay was inexcusable; and
- The delay gave rise to a substantial risk that a fair trial of the issues in the litigation would not be possible.
For the first two parts of the test, the Court of Appeal deferred to the motion judge’s findings that the delay was inordinate or unreasonable and inexcusable.
However, the Court of Appeal did not agree with the motion judge’s conclusions for the third part of the test which focuses on whether a defendant’s ability to put its case forward on the merits or have a fair trial is prejudiced by the delay. The motion judge found both presumed prejudice (which is inherent in a long delay) and actual prejudice to the defendants’ right to a fair trial. The Court of Appeal found that there was some presumed prejudice, but no actual prejudice, which was needed to dismiss the case:
[A]lthough the length of the delay was inordinate (and much of it was not adequately accounted for), this delay was not so inordinate that the respondents could rely on presumed prejudice alone to show that their right to a fair trial was substantially at risk. To deprive [the plaintiff] of her day in court, of a trial on the merits, the respondents had to show that they would actually be prejudiced by the delay. The motion judge did find actual or real prejudice but in our view that finding was unreasonable and cannot stand.[emphasis added]2
The defendants had argued that they were prejudiced because two of the professionals who might have given evidence on the issue of the deceased’s testamentary capacity had died (the lawyer who drafted the wills and one of the testator’s doctors). However, as the Court of Appeal observed, two of the deceased’s doctors were still alive, and available to testify, and there was “considerable documentary evidence to shed light on [the deceased’s] capacity at the time she made the two wills challenged in this litigation.” This evidence included the lawyer’s files and a number of medical reports, one of which spoke directly to the deceased’s capacity at the time she made her second will and a psychiatric assessment.
The Court set aside the motion judge’s dismissal but stated that it was “imperative” that the action proceed promptly. Interestingly the Court awarded the plaintiff her costs for the appeal but awarded no costs for the motion.
—
1. 2014 ONCA 596.
2.2014 ONCA 596 at para.17.
Written by: Kimberly A. Whaley
Posted on: September 4, 2014
Categories: Commentary
Recently, in Ali v. Fruci, 1 the Court of Appeal set aside a motion judge’s dismissal of a will challenge claim for delay. The Court found that there was no “real or actual” prejudice to the defendants’ right to a fair trial despite a finding of inordinate delay. The history of the action and the Appeal decision are discussed below:
History
In February of 2008 the plaintiff commenced a claim contesting two wills executed by her aunt who had passed away in 2007. The aunt had made three wills between 1998 and 2003, with the plaintiff named as the executor and residual beneficiary of the first will. The second and third will replaced the plaintiff with the defendants in the claim, a close friend of the deceased and the deceased’s grandnephew. The action alleged that the deceased lacked testamentary capacity and was unduly influenced when she made her second and third wills.
All pleadings were completed in the action in August of 2008. Since that time no steps in the action were taken, except for some disclosure of documents in October 2011.
The Dismissal Motion
In September of 2013 the defendants moved under Rule 24.01(1)(c) of the Rules of Civil Procedure to dismiss the action for delay. Finding that the plaintiff’s delay was both unreasonable and inexcusable, and that the delay prejudiced the defendants’ right to a fair trial, the motion judge dismissed the action.
The Appeal
The Court confirmed the three-part test for dismissing an action for delay. On such a motion the defendants had to show:
For the first two parts of the test, the Court of Appeal deferred to the motion judge’s findings that the delay was inordinate or unreasonable and inexcusable.
However, the Court of Appeal did not agree with the motion judge’s conclusions for the third part of the test which focuses on whether a defendant’s ability to put its case forward on the merits or have a fair trial is prejudiced by the delay. The motion judge found both presumed prejudice (which is inherent in a long delay) and actual prejudice to the defendants’ right to a fair trial. The Court of Appeal found that there was some presumed prejudice, but no actual prejudice, which was needed to dismiss the case:
[A]lthough the length of the delay was inordinate (and much of it was not adequately accounted for), this delay was not so inordinate that the respondents could rely on presumed prejudice alone to show that their right to a fair trial was substantially at risk. To deprive [the plaintiff] of her day in court, of a trial on the merits, the respondents had to show that they would actually be prejudiced by the delay. The motion judge did find actual or real prejudice but in our view that finding was unreasonable and cannot stand.[emphasis added]2
The defendants had argued that they were prejudiced because two of the professionals who might have given evidence on the issue of the deceased’s testamentary capacity had died (the lawyer who drafted the wills and one of the testator’s doctors). However, as the Court of Appeal observed, two of the deceased’s doctors were still alive, and available to testify, and there was “considerable documentary evidence to shed light on [the deceased’s] capacity at the time she made the two wills challenged in this litigation.” This evidence included the lawyer’s files and a number of medical reports, one of which spoke directly to the deceased’s capacity at the time she made her second will and a psychiatric assessment.
The Court set aside the motion judge’s dismissal but stated that it was “imperative” that the action proceed promptly. Interestingly the Court awarded the plaintiff her costs for the appeal but awarded no costs for the motion.
—
1. 2014 ONCA 596.
2.2014 ONCA 596 at para.17.
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