The delay was neither intentional nor inexcusable: court
The Ontario Superior Court of Justice has denied a motion to dismiss an ongoing estate litigation case despite delays in the proceedings.
In Estate of Angela Sebanc v. Peter Sebanc, 2024 ONSC 2652, the defendants sought to dismiss the action for delay, discharge a certificate of pending litigation (CPL), and obtain security for costs. The plaintiff sought to compel the defendants to provide an affidavit of documents and attend examinations for discovery.
Angela Sebanc, who passed away in February 2017, was survived by her five children, including Victor and Peter Sebanc. Victor Sebanc, acting as the executor of Angela's estate, sought an accounting from Peter to administer Angela's assets during her lifetime and after her death. The claim also sought a declaration that the estate had an interest in a property on Old Perry Road in Mississauga, alleging a resulting or constructive trust and damages for misappropriation of assets.
The parties attempted mediation, which was unsuccessful. Subsequent delays occurred for various reasons, including the COVID-19 pandemic and staffing changes within the plaintiff's legal team.
The defendants argued for dismissal based on the plaintiff's delay, citing specific periods of inactivity and alleging prejudice due to loss of evidence. However, the Superior Court found that the plaintiff had been delayed due to the defendants' failure to provide necessary documents and attend examinations for discovery.
The court ruled that the delay was neither intentional nor inexcusable, and no serious prejudice to the defendants' right to a fair trial was proven. Consequently, the court denied the motion to dismiss the action.
The defendants sought to discharge the CPL on the grounds that the plaintiff had not prosecuted the case with reasonable diligence. Applying similar reasoning as for the motion to dismiss, the court found that the plaintiff had acted with reasonable diligence given the circumstances and denied this motion as well.
The defendants also sought security for costs, arguing that the plaintiff, acting as a nominal plaintiff, had insufficient assets to cover costs. Given the serious allegations of fraud and asset misappropriation, the court found it just for the matter to proceed to trial without security for costs and dismissed the motion.
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Ultimately, the Ontario Superior Court's decision allows the estate litigation to proceed, emphasizing the need for a fair trial on the merits despite procedural delays. The court underscored the importance of fulfilling discovery obligations and prosecuting actions diligently.