McLennan Ross Secures Favourable Decision for Client

On August 8, 2023, Justice Ross of the Alberta Court of King’s Bench provided an encouraging and reaffirming commentary on defence obligations and the impact of settlement discussions under a long- delay application in her recent decision: Protection of the Holy Virgin Mary Orthodox Convent at Bluffton v Oustinow Estate, 2023 ABKB 462.

This action which commenced in February 2011, pertains to litigation regarding who is entitled to certain convent lands in Bluffton, Alberta. The Defendant filed its Statement of Defence in March 2012. Over the course of 8 years, the parties exchanged records, engaged in a mediation process, and settlement discussions. In February 2021, the Plaintiff filed for summary judgment. In June 2021, the Defendant filed a cross-application to strike the action for delay in the face of the Plaintiff summary judgment application.

In coming to her decision, Justice Ross applied the six-part test from Humphreys v Trebilcock, 2017 ABCA 116. After considering the progression of the action, the periods of settlement negotiations, and the effects of the COVID pandemic, the Court found that there had been delay in this case, but that it was not inordinate. The Court subsequently dismissed the Defendant’s application to strike for long delay.

Notably, the Court reiterated that while a plaintiff has the primary obligation in moving the litigation forward, the defendant also has procedural obligations to assist in its progression. In this case, there was almost 4 years of defence delay, and a period in which the Defendant refused or failed to provide questioning dates as requested. Justice Ross states that “a defendant cannot fairly complain about prejudice that is directly and primarily caused by its own delay.”  In sum, a Defendant cannot rely on the resulting delay they have caused in an application to dismiss, and both parties can be found responsible.

Additionally evident from this decision is the Court’s encouragement of settlement and the foundational principles of the Rules of Court. The Court was mindful that the parties, by mutual agreement, spent a significant period of time focused on settlement and confirmed that parties to litigation should not be penalized for the periods of time in which they are engaged in the meaningful resolution of their matter.

Congratulations to Crista Osualdini and the estates team for this positive outcome.

A special thanks to Lydia Roseman for her valuable assistance with research and Maxine Fine, Student-at-Law for providing the case summary.