It has been a process driven week and I want to talk about the motion to dismiss for delay in Nelson v. Rancourt, 2021 ONSC 4767. This case is about competing claims in the Nelson Estate. The Estate is modestly comprised of two properties that were owned jointly by the late Jean Nelson and her ex-husband, Donald Nelson. The Last Will and Testament of Jean Nelson was made after her separation, and Jean died suddenly three days after the Will was signed on November 19, 2012.
The Nelson Estate brought an application on February 27, 2013 that sought to determine whether the Estate had an undivided half interest in the properties that were jointly owned by Jean and Donald. In response, Donald brought a motion within the Estate’s application to determine whether Jean’s Will is valid. Donald was ordered to commence his will challenge as an action and Donald’s Statement of Claim was issued on August 1, 2013. The exchange of pleadings were completed by March 7, 2014. The Estate’s application and its overall administration were stayed pending the outcome of Donald’s will challenge.
In 2015, medical and legal records were produced. In 2017, Donald scheduled examinations for discovery, but only a non-party was examined by November, 2017. Nothing occurred after that point and the reason why Donald’s action was not administratively dismissed for delay five years after its commencement, pursuant to Rule 48.14, on August 1, 2018 was because the matter was not tracked for dismissal in the court system.
In 2021, the Nelson Estate sought an order to dismiss Donald’s action for delay, or, alternatively, an order that the action be set down for trial because it has been eight years since the Statement of Claim.
Donald explained that his delay was due to age-related issues as someone who is 88 years of age and to Covid. Donald also submitted that he is no longer pursuing a will challenge based on Jean’s capacity and that his only remaining grounds of challenge was that of undue influence.
The Court found Donald’s age and Covid related concerns to be compelling. The Court was also persuaded by Donald’s concession with respect to Jean’s capacity. Without the issue of capacity, the Court was no longer concerned that the delay would result in a substantial risk that a fair trial will not be possible. The Court found that some evidence has been preserved through the discoveries transcripts and the family law file from Donald and Jean’s separation in the event that the witnesses’ memories should turn out to be flawed at trial. It was also important to the Court that the issues at hand are significant to Donald given that the home where he resides is one of the properties at issue.
On the other hand, the Court was less concerned about the delay to the administration of the Estate as it was found that the only administrative steps left were related to the properties at issue.
The Court ultimately ordered that Donald’s will challenge and the Estate’s application with respect to the ownership of the properties be heard together, and the matter was set down for trial given that that Court was “not satisfied that there is no trial time available on this case which I note may now require less time and may no longer be as complex. Moreover, in respect of Covid delays, such delays affect everyone, not just the litigants in this case and same is not the fault of Mr. Nelson nor should be visited on him (in terms of future delay) in my view with respect to the delay component in this case” (para. 41).
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