The Onus of Discharging a Certificate of Pending Litigation and Motion to Dismiss for Delay
Estate of Angela Sebanc v. Peter Sebanc – https://canlii.ca/t/k4hxk
In the decision of Estate of Angela Sebanc v. Peter Sebanc[1], the Deceased’s child, Peter and his wife (the “Defendants”) moved for an order dismissing the action for delay and discharging a certificate of pending litigation (“CPL”).[2] The Deceased’s other child, Victor (the “Respondent”) was the executor of the Deceased’s estate.
What is a Certificate of Pending Litigation
A CPL is a “court-imposed notice that is registered on title and provides notice to the public that a property is subject to a legal dispute”.[3] This notice puts a hold on any transactions or dealings with the property until the certificate is discharged.
Please find Oliver O’Brien’s article “What is a Certificate of Pending Litigation” for more information on this litigation tool.
Facts
The Deceased was the mother of the Respondent and the Defendant. In April, 30 2018, the Defendant sought an accounting of the Deceased’s estate, and a declaration that the Deceased’s primary residence (the “property”) reverted “by reason of a resulting or constructive trust” to her estate.[4] Additionally, the Defendant was looking for “damages by reason of misappropriation of assets belonging to the [Deceased] or her estate.”[5] A CPL was issued on the property in June of 19, 2028.
The court outlined a multitude of reasons why litigation was delayed. This included Covid-19 pandemic delays, the party’s inability to settle at mediation, “maternity leaves in the office of the lawyers for the Plaintiff”, the party’s failure to respond to scheduling demands, and the fact that discovery was not rescheduled for 8 months.[6]
Motion to Dismiss for Delay
The Defendants brought their motion to dismiss for delay under Rule 24.01. The relevant parts of this rule are outlined as the following:
24.01 (1) A defendant who is not in default under these rules or an order of the court may move to have an action dismissed for delay where the plaintiff has failed,
(a) to serve the statement of claim on all the defendants within the prescribed time;
(b) to have noted in default any defendant who has failed to deliver a statement of defence, within thirty days after the default;
(c) to set the action down for trial within six months after the close of pleadings; or
(2) The court shall, subject to subrule 24.02 (2), dismiss an action for delay if either of the circumstances described in paragraphs 1 and 2 of subrule 48.14 (1) applies to the action, unless the plaintiff demonstrates that dismissal of the action would be unjust. O. Reg. 259/14, s. 6.
Alongside the rules, the court discussed the writings of authors, Perell and Morden, The Law of Civil Procedure in Ontario (the “text”) which stated that the courts employ a restrictive approach to dismissing an action without a hearing, and the following must be demonstrated:[7]
be shown to have been intentional and contumelious; or (b) inexcusable and prejudicial to the defendant’s right to have a fair trial of the action. For the delay to be intentional and contumelious, the plaintiff must have deliberately contravened a peremptory order of the court. Where the delay is not contumelious, the party moving for dismissal must show that: (a) the delay was inordinate or unreasonable; (b) the delay was inexcusable; and (c) the delay would give rise to a substantial risk that a fair trial of the issues in the litigation would not be possible.[8]
The text went on to state that “prejudice” is described as when a party fails “to prosecute an action in a timely way and offers no satisfactory explanation for the delay”.[9]
The court dismissed the Defendants motion to dismiss the action for delay on the basis that the Defendants did not sufficiently prove that that such order was warranted. The court stated that although the plaintiffs could have been proceeded more efficiently, the plaintiff’s delay was not “intentional or contumelious”.[10] Additionally, the court compared the Defendant’s own contributions to the litigations delay to support the assertion that the plaintiff’s delays were not unreasonable. [11]
CPL
The motion to discharge the CPL was brought under s. 103 (6)(a)(iii) of the Courts of Justice Act which states:
(6) The court may make an order discharging a certificate,
(a) where the party at whose instance it was issued,
(iii) does not prosecute the proceeding with reasonable diligence;
and the court may, in making the order, impose such terms as to the giving of security or otherwise as the court considers just.
The court dismissed this motion on the same basis as the motion to dismiss for delay. The court asserted once again that the Defendants did not discharge their onus to “prove that the Plaintiff did not prosecute the proceeding with reasonable diligence”.[12]
Estate of Angela Sebanc v. Peter Sebanc provides insight into the high onus that must be demonstrated by a party to discharge a CPL and a motion to dismiss for delay.
—
[1] Estate of Angela Sebanc v. Peter Sebanc, 2024 ONSC 2652 (CanLII)
[2] Ibid at para 1.
[3] Oliver O’Brien, “What is a Certificate of Pending Litigation and how does it work?” at https://welpartners.com/blog/2023/11/what-is-a-certificate-of-pending-litigation-and-how-does-it-work/
[4] Ibid at para 5.
[5] Ibid at para 4.
[6] Ibid at para 17.
[7] Ibid at para 26.
[8] Ibid at para 26.
[9] Ibid at para 26.
[10] Ibid at para 30.
[11] Ibid at para 30.
[12] Ibid at para 33.
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Written by: Gabriella Banhara
Posted on: May 28, 2024
Categories: Commentary, WEL Newsletter
Estate of Angela Sebanc v. Peter Sebanc – https://canlii.ca/t/k4hxk
In the decision of Estate of Angela Sebanc v. Peter Sebanc[1], the Deceased’s child, Peter and his wife (the “Defendants”) moved for an order dismissing the action for delay and discharging a certificate of pending litigation (“CPL”).[2] The Deceased’s other child, Victor (the “Respondent”) was the executor of the Deceased’s estate.
What is a Certificate of Pending Litigation
A CPL is a “court-imposed notice that is registered on title and provides notice to the public that a property is subject to a legal dispute”.[3] This notice puts a hold on any transactions or dealings with the property until the certificate is discharged.
Please find Oliver O’Brien’s article “What is a Certificate of Pending Litigation” for more information on this litigation tool.
Facts
The Deceased was the mother of the Respondent and the Defendant. In April, 30 2018, the Defendant sought an accounting of the Deceased’s estate, and a declaration that the Deceased’s primary residence (the “property”) reverted “by reason of a resulting or constructive trust” to her estate.[4] Additionally, the Defendant was looking for “damages by reason of misappropriation of assets belonging to the [Deceased] or her estate.”[5] A CPL was issued on the property in June of 19, 2028.
The court outlined a multitude of reasons why litigation was delayed. This included Covid-19 pandemic delays, the party’s inability to settle at mediation, “maternity leaves in the office of the lawyers for the Plaintiff”, the party’s failure to respond to scheduling demands, and the fact that discovery was not rescheduled for 8 months.[6]
Motion to Dismiss for Delay
The Defendants brought their motion to dismiss for delay under Rule 24.01. The relevant parts of this rule are outlined as the following:
24.01 (1) A defendant who is not in default under these rules or an order of the court may move to have an action dismissed for delay where the plaintiff has failed,
(a) to serve the statement of claim on all the defendants within the prescribed time;
(b) to have noted in default any defendant who has failed to deliver a statement of defence, within thirty days after the default;
(c) to set the action down for trial within six months after the close of pleadings; or
(2) The court shall, subject to subrule 24.02 (2), dismiss an action for delay if either of the circumstances described in paragraphs 1 and 2 of subrule 48.14 (1) applies to the action, unless the plaintiff demonstrates that dismissal of the action would be unjust. O. Reg. 259/14, s. 6.
Alongside the rules, the court discussed the writings of authors, Perell and Morden, The Law of Civil Procedure in Ontario (the “text”) which stated that the courts employ a restrictive approach to dismissing an action without a hearing, and the following must be demonstrated:[7]
be shown to have been intentional and contumelious; or (b) inexcusable and prejudicial to the defendant’s right to have a fair trial of the action. For the delay to be intentional and contumelious, the plaintiff must have deliberately contravened a peremptory order of the court. Where the delay is not contumelious, the party moving for dismissal must show that: (a) the delay was inordinate or unreasonable; (b) the delay was inexcusable; and (c) the delay would give rise to a substantial risk that a fair trial of the issues in the litigation would not be possible.[8]
The text went on to state that “prejudice” is described as when a party fails “to prosecute an action in a timely way and offers no satisfactory explanation for the delay”.[9]
The court dismissed the Defendants motion to dismiss the action for delay on the basis that the Defendants did not sufficiently prove that that such order was warranted. The court stated that although the plaintiffs could have been proceeded more efficiently, the plaintiff’s delay was not “intentional or contumelious”.[10] Additionally, the court compared the Defendant’s own contributions to the litigations delay to support the assertion that the plaintiff’s delays were not unreasonable. [11]
CPL
The motion to discharge the CPL was brought under s. 103 (6)(a)(iii) of the Courts of Justice Act which states:
(6) The court may make an order discharging a certificate,
(a) where the party at whose instance it was issued,
(iii) does not prosecute the proceeding with reasonable diligence;
and the court may, in making the order, impose such terms as to the giving of security or otherwise as the court considers just.
The court dismissed this motion on the same basis as the motion to dismiss for delay. The court asserted once again that the Defendants did not discharge their onus to “prove that the Plaintiff did not prosecute the proceeding with reasonable diligence”.[12]
Estate of Angela Sebanc v. Peter Sebanc provides insight into the high onus that must be demonstrated by a party to discharge a CPL and a motion to dismiss for delay.
—
[1] Estate of Angela Sebanc v. Peter Sebanc, 2024 ONSC 2652 (CanLII)
[2] Ibid at para 1.
[3] Oliver O’Brien, “What is a Certificate of Pending Litigation and how does it work?” at https://welpartners.com/blog/2023/11/what-is-a-certificate-of-pending-litigation-and-how-does-it-work/
[4] Ibid at para 5.
[5] Ibid at para 4.
[6] Ibid at para 17.
[7] Ibid at para 26.
[8] Ibid at para 26.
[9] Ibid at para 26.
[10] Ibid at para 30.
[11] Ibid at para 30.
[12] Ibid at para 33.
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