Date: 19980401
Docket: T-245-86
BETWEEN:
SHIRLEY LARDEN,
Plaintiff/Appellant,
- and -
HER MAJESTY THE QUEEN, THE MINISTER OF INDIAN AND
NORTHERN AFFAIRS OF CANADA, MARVIN ANDREW JOE,
DAVID JAMES JOE, EDITH BAIRD, NORMA JACOBS,
LEILEAN KOLLER, BRIAN CARDINAL, RENE CARDINAL,
JEANNE CARDINAL, CINDY WATSON AND H. ERVIN,
Defendants,
- and -
THE MINISTER OF INDIAN AND NORTHERN
AFFAIRS OF CANADA AND H. ERVIN,
Respondents.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] This action involves a claim by the Plaintiff, Mrs. Shirley Larden, to either all of or to a further share of the Estate of her father, Simon Joe. The Defendants who remain in this action are the siblings and heirs of siblings of the Plaintiff.
[2] The Defendants say the action, commenced over a dozen years ago, ought to be dismissed for want of prosecution. In the alternative they submit the Estate was settled by a written agreement among the heirs in 1990, thus the action should be stayed in the interests of justice, or struck out as disclosing no reasonable cause of action, as scandalous, frivolous or vexatious, or as an abuse of process. Since about 1990 the Plaintiff first ignored the action for some six years and then, more recently, has been ineffective in moving it toward trial, thus courting some form of a summarily enforced conclusion. I have now brought this action to an end by striking it out, without leave to amend. To understand all of this one must go back to at least 1966.
BACKGROUND
[3] The Plaintiff is one of a number of children of Simon and Felicia Joe, who were members of the Tsawwassen Indian Band. Simon Joe died intestate in 1966, survived by his wife. The Minister of Indian Affairs and Northern Development negotiated an agreement, in late 1966 or early 1967, whereby the heirs agreed that Felicia Joe should have a life interest in Simon Joe's Estate. Felicia Joe died in 1981. This resulted in B.C. Supreme Court litigation.
[4] The administrator of the Estate of Simon Joe, Harold Ervin, an employee of the Department of Indian Affairs and Northern Development ("DIAND"), obtained approval from all of the heirs, 15 February 1983, to a distribution of lands making up Simon Joe's Estate. The agreement brought to an end the B.C. Supreme Court litigation. Shirley Larden, the Plaintiff, and the other heirs agreed among themselves to a distribution of the Estate. The Plaintiff was to receive a 6/54th interest in the land making up the Estate. In return all of the heirs agreed to release the Crown, its administrators and employees from further claims. It would appear that the only asset in the Estate at that time was land.
[5] In March of 1984 the Plaintiff says the administrator of the Estate proposed a distribution which did not follow the 15 February 1983 agreement among the heirs. After some unsuccessful negotiations the Plaintiff commenced this present action on 30 January 1986, seeking either all of the land in the Estate, or alternately, some undefined partial interest. The Plaintiff also claims, in the body of the Statement of Claim, a quantum meruit interest in the Estate lands. The Statement of Claim apparently preceded the sale of part of the Estate lands for highway development.
[6] In January of 1988, not a great deal having taken place to move the action along, four of the Defendants made an unsuccessful attempt to have the action dismissed for want of prosecution. In 1988 the Defendant, Marvin Joe, was examined for discovery. Subsequently lawyers acting for the heirs, including counsel for the Plaintiff, worked out a compromise documented by an 8 March 1989 letter between counsel, confirming a settlement agreement. The Plaintiff and the other heirs all signed a copy of the letter as "agreed and accepted" (referred to as the "1989 Letter Agreement"). There is every reason to believe the Plaintiff had proper legal advice when she signed the 1989 Letter Agreement. The agreement set out that the Plaintiff should receive $15,000.00 for vacating her home from the Department of Highways, who required a right of way, a further $30,000.00, over and above the shares going to all of the heirs, from compensation provided to the Estate in exchange for highway development and three acres out of fifteen acres on the Tsawwassen Indian Reserve of which Simon Joe had been in possession. In return the Plaintiff agreed to sign a consent dismissal of this Federal Court action.
[7] On 23 May 1989 the Plaintiff filed a notice of change of solicitor, indicating that she acted for herself. This notice is the last item to appear in the Court's file until April 12, 1996, when the Associate Chief Justice gave notice to the Plaintiff pursuant to Rule 327.2, requiring the Plaintiff to set down an application for directions, failing which the Court would dismiss the action. However other events, outside of the action, took place during 1990 and 1991, to which I will now return.
[8] The 1989 Letter Agreement was reworked into a formal agreement of 31 July 1990 (the "1990 Agreement"). The 1990 Agreement, which was signed by the Plaintiff and all of the heirs, generally follows the letter agreement. The Plaintiff was to receive the entire interest in three acres of land, including any interest in lot 3-3 to which the Estate might be entitled, $30,000.00 representing an initial settlement by way of highway construction compensation and a 6/54ths interest in the balance of highway compensation funds. The 1990 Agreement does not touch upon the $15,000.00 allocated by the Department of Highways to Mrs. Larden for vacating her home, or on replacement accommodation to be provided by the Tsawwassen Band, however those items were not part of the Estate.
[9] The preamble to the 1990 Agreement sets out that the Plaintiff and the other heirs to the Estate desire to settle "... all matters between each of them as to their respective entitlements to the property of the Estate; ...". The 1990 Agreement contains a usual release of the administrator and the executors of the Estate. Specifically, as to the Plaintiff, the 1990 Agreement contains the following:
| "Release, Final Settlement and Dismissal by Larden |
| 4. Subject to transfer of the South Property and receipt of $30,000 and 6/54 of the Balance of Compensation, Larden hereby renounces and releases any claims, interest, or entitlement, past, present or future in and to the Estate and the property both real and personal comprising the Estate including any interests contingent or otherwise in the Estate and any income or payment with respect to any property of the Estate whether ascertained or not. |
| 5. Larden accepts the distribution set out in paragraph 1 of this Agreement as full and final settlement of all sums of money, legacies, bequests and benefits due to her from the Estate or any of the parties hereto. |
| 6. Larden shall execute a consent dismissal, without costs, of Action No. T-245-86 filed in the Federal Court of Canada.". |
In short, in consideration of a substantial portion of the Estate, in full and final settlement of her claim against both the Estate and all of the parties to the 1990 Agreement, the Plaintiff agreed to dismiss this action without costs.
[10] The Plaintiff, by the time the 1990 Agreement was signed, acted for herself in this action. Notwithstanding, she did sign the 1990 Agreement before a lawyer. Counsel for the Defendants says the lawyer involved was knowledgable in such matters and that I ought to presume he acted not just as a witness, but gave advice. Counsel for the Plaintiff says her client signed under duress and that the lawyer before whom the Plaintiff signed was merely a witness.
[11] The Plaintiff sets out in her Affidavit of 13 February 1998 that she signed the 1989 Letter Agreement and the 1990 Agreement "... under duress, the particulars of which I plan to address in an amendment to my statement of claim." (paragraph 8). The Plaintiff explains, in an Affidavit of 18 October 1996, that she has had chronic back pain and depression for some 25 years, has been treated for both from time to time and was under pressure to settle. The Plaintiff also tenders a letter from her doctor, dated 26 April 1989, cataloguing various medical problems, however the letter stops well short of suggesting the Plaintiff was incompetent to handle her own affairs. Despite ample opportunity the Plaintiff has not dealt with a key issue, whether or not she received any advice from the lawyer on whom she attended to execute the 1990 Agreement.
[12] The Plaintiff received the agreed land and a share of the Estate, a fact found by Mr. Justice Denault in his Order of 10 March 1997 by which he dismissed the claim against the Crown Defendants on the basis that they had properly distributed the Estate and thus the action against them was an abuse. Specifically, the Plaintiff received a substantial portion of the Estate, not only the land under the 1990 Agreement, but also the benefit of a payment of $52,794.44 in about December of 1991, documented by a Band Council resolution of 3 December 1991 and by her lawyer's letter of 9 December 1991. That letter purports to accept the funds without prejudice and as a partial payment toward amounts the Plaintiff claims against the Tsawwassen Band Chief, counsel and other parties relating to "the Highway transaction and the issues involving the Joe Estate.". It would seem rather late in the day to attach conditions to the payment, so far as the Estate was concerned and indeed this present action lay dormant between May 1989 and April of 1996 when the Court issued a wake-up notice to the Plaintiff under Rule 327.2. The wake-up notice resulted in the Plaintiff's 27 May 1996 motion for directions. This was shortly followed by a motion on behalf of the Crown, the Minister of DIAND and Harold Ervin to have the proceedings, as against them, stayed, or dismissed as frivolous, vexatious and an abuse.
[13] Mr. Justice Denault's Order, after a short preamble summing up the 1990 Agreement, is brief:
| "THIS COURT BEING SATISFIED THAT: |
| 1. a) The Plaintiff has received land and monies from the Estates of Simon and Felicia Joe pursuant to the Agreement; |
| b) The Respondent Minister of Indian Affairs has distributed the Estate of Simon Joe as per the Agreement; |
| c) The Plaintiff seeks damages against Her Majesty the Queen in another action (T-643-92) by relying on a fiduciary duty created or referenced to the Agreement. |
| 2. It is an abuse of process and vexatious for the Plaintiff to continue this action against the Defendants/Respondents Her Majesty the Queen, The Minister of Indian and Northern Affairs of Canada and H. Ervin." |
and in the result he dismissed the action against the three Crown Defendants. I do not take Mr. Justice Denault's Order of 10 March 1997 as determining whether or not the Plaintiff has a cause of action against the remaining Defendants. Rather it is a determination that the Crown Defendants properly distributed the Estate as required by the 1990 Agreement. This is borne out by Mr. Justice Denault's second Order of 10 March 1997 which is as follows:
| "Subject to the Order of this Court issued this day dismissing the action against Her Majesty the Queen, The Minister of Indian and Northern Affairs of Canada and H. Ervin, unless the Lists and Affidavits of Documents are filed by all interested parties within thirty (30) days, and the examinations for discovery of the Defendants by the Plaintiff are completed by ninety (90) days of the date of this Order, the remaining Defendants will be at liberty to seek a dismissal of the action for want of prosecution.". |
This second Order sets a schedule within which the Plaintiff is to complete production of documents and discovery, failing which the remaining Defendants may seek dismissal for want of prosecution. The Order neither determines whether the Plaintiff has a good cause of action nor limits the remedies of the remaining Defendants, but does put both the Plaintiff and the Defendants on a schedule to complete the discovery process.
[14] The Plaintiff filed an extensive affidavit of documents within the required time and attempted to complete examinations for discovery. She was able to complete three token examinations for discovery within the required time. There is some dispute as to whether the other Defendants were served with appointments for discovery. Both sides seem in agreement that Cindy Watson was not served. At issue is whether a group of Defendants for whom Davis & Company acted were served. I accept the affidavit evidence of Paul Johal, legal secretary for Stan H. Ashcroft who is now acting as counsel for the Plaintiff, that he made arrangements for examination for discovery and prepared a letter dated 16 May 1997 to Davis & Company enclosing directions to attend for discovery, together with conduct money. I accept the affidavit evidence of the Plaintiff, sworn 5 January 1998, that she served the letter on Davis & Company on or about 19 May 1997. As I understand it the Defendants, for whom Davis & Company acted, say that Davis & Company were no longer their lawyers in May of 1997 referring, perhaps, to the affidavit of James Reynolds, of Davis & Company, filed 8 July 1997, to which is attached a letter of 22 April 1997 advising those Defendants that Davis & Company was no longer able to act for them by reason of a conflict. This argument may be disposed of shortly: Davis & Company did not get off the record, as solicitor for those Defendants, until sometime after 28 July 1997. Davis & Company and remained the address for service of this group of Defendants until 22 October 1997.
[15] Had I to decide the issue of compliance with Mr. Justice Denault's Order my concerns, serious concerns, would include the perfunctory nature of the discoveries undertaken by the Plaintiff and the fact that the Plaintiff left too little time for the necessary procedures and thus was not able to require, by Court Order if necessary, the balance of the Defendants to attend for discovery. Nothing much hinges upon whether the Plaintiff is in default of Mr. Justice Denault's 10 March 1997 Order, as to completion of examinations for discovery and the right, if the Plaintiff was in breach, of the Defendants to bring a motion for want of prosecution, for while I have considered dismissal for want of prosecution I have decided the motion on another ground.
CONSIDERATION
[16] To stay a matter such as this, in the interest of justice, is a remedy which assists no one for the action should either conclude completely now, or proceed expeditiously. This leads to two factors which are always in the background on a motion to dismiss for want of prosecution or to strike out under Rule 419. First, to curtail an action, preventing a plaintiff from having her or his day in court, is a drastic remedy which ought to be invoked only in the clearest of circumstances. Second, to be fair to a defendant, all litigation must end at some reasonable point so there may be some certainty, allowing the parties to get on with normal lives.
Want of Prosecution
[17] Dealing first with want of prosecution, the approach is to apply Birkett v. James [1978] A.C. 297, in which the House of Lords approved the test set out by the Court of Appeal in Allen v. Sir Alfred McAlpine & Sons Ltd. [1968] 2 Q.B. 229. The rule for dismissing for want of prosecution is a three part test under which the defendant must show inordinate delay, that the inordinate delay is inexcusable and that the defendant is likely to be seriously prejudiced by that delay, as set out Lord Justice Salmon's Judgment at page 268 of the Sir Alfred McAlpine case.
[18] As to the first branch of the test, in the present instance there has clearly been inordinate delay.
[19] The Plaintiff has not shown an acceptable excuse for the delay, particulary that between January of 1988, when various of the Defendants failed to have the action struck out for want of prosecution and April of 1996, when the Court called upon the Plaintiff to bring a notice for directions. To say, as submitted by the Plaintiff, that the Defendants countenanced the delay, is not reasonable: rather, the Defendants, on the signing of the 1990 Agreement and the distribution of the Estate, believed the agreed dismissal of the action concluded the matter. That the Plaintiff, who acted for herself during much of that time span, was unable to afford counsel except on a sporadic basis and may have had, from time to time, ill health, is not an excuse for leaving the action and the Defendants in limbo. The Plaintiff says outstanding issues as to the distribution of the Estate were to be arbitrated. However, there is no arbitration provision in either the 1989 Letter Agreement nor the 1990 Agreement. The only reference to arbitration is in a 9 March 1989 letter from Mrs. Larden's then lawyer. The reference to arbitration in that letter is not only superseded by the 1990 Agreement, but also the arbitration suggested seems to deal with the shape of the lot and an access easement. That Mrs. Larden thought arbitration might take place, to resolve her claim to more of the Estate, is neither reasonable nor an excuse for delay.
[20] The Defendants fail on the want of prosecution argument because they have not convinced me that there has been any serious prejudice. The fading of some memories does not clearly, in this instance, constitute prejudice. All the more so in that documents will play an important part and at least one discovery was accomplished in 1988. One of the original Defendants, Leilean Koller, died in 1986, some two months after this action was commenced. The death of a key witness can be seriously prejudicial: Nichols v. Canada (1990), 36 F.T.R. 77 at 78 (T.D.) and Genious Maritime Inc. v. The "Federal Atlantic" (1995), 85 F.T.R. 230 at 232-233 (T.D.), in which key witnesses died nine and five years after the actions had been commenced. The death of a key witness may be prejudicial when coupled with delay: Rodgers v. The Queen, an unreported 8 September 1994 decision of Mr. Justice Wetston in action T-837-71. Alternately the death of a witness may be unfortunate, but not necessarily prejudicial for "such unfortunate circumstances are what parties before any court have to expect from time to time." McGregor and McGregor v. Canada (1988) 20 F.T.R. 122 at 124 (T.D.) in which there was voluminous material on file and some discovery had already taken place. In the present instance, I am not convinced that Ms. Koller was a key witness. Indeed, counsel for the Defendants merely refers to her, in written argument, as a likely witness. Given all the circumstances, I do not believe the Defendants have been prejudiced within the rule in the Sir Alfred McAlpine case.
[21] I briefly considered, during the hearing, but rejected the idea, of requesting counsel to provide submissions based on Grovit v. Doctor [1997] 1 W.L.R. 640, a decision in which the House of Lords questioned the idea that a court be powerless to give relief to defendants, long neglected by plaintiffs, unless the defendants can show prejudice. In Grovit v. Doctor the judge who initially heard the motion held that there had been inordinate and inexcusable delay and that the plaintiff, having no interest in actively pursuing the litigation, ought to have his action dismissed for want of prosecution. The Court of Appeal upheld the initial decision finding it was wrong for a plaintiff to commence and continue litigation, which he had no intention of bringing to a conclusion in a timely manner and that such was an abuse of process. Notwithstanding that the appellant in Grovit v. Doctor was pursuing the appeal of the dismissal order with vigour, the House of Lords was satisfied that both the judge and the Court of Appeal had come to a proper conclusion. Lord Woolf, who wrote the judgment for the House of Lords, pointed out that there being an abuse of process by reason of delay, in that case an absence of any real intention to carry the case to trial, the motions judge and the Court of Appeal were entitled to dismiss the proceedings. In the present instance one wonders and even doubts whether the Plaintiff had any intention of proceeding to trial until awakened from a sleep of some seven years by the Court's notice to seek directions or risk having the action struck out.
[22] The approach in Grovit v. Doctor is similar to the concept that where a litigant engages in wholesale disregard of time limits in the Rules, such a breach should be considered not only from the point of view of prejudice to particular litigants, but also in the light of prejudice to the due administration of justice. As such, it may be a ground to stay or to dismiss separate and apart from the rule in Birkett v. James (supra) and here I have in mind the Court of Appeal decision in Arbuthnot Latham Bank Ltd. v. Trafalgar Holdings Ltd., reported in The Times, 29 December 1997 where the Court pointed out that inordinate delay would become an increasingly important concept in the future, with the introduction of Court controlled case management. As I say, I decided not to raise any of this at the hearing of the motion. However I raise it now as a caution to counsel, a caution which may well become relevant when cases are managed under the new 1998 Rules, which contain specific procedural time limits.
[23] Rather than dismiss this action for want of prosecution, for absence of any real intent to proceed, or for a disregard of the Federal Court Rules, the motion may more clearly be decided in the context of Rule 419, which deals with striking out a pleading in various circumstances.
Striking Out Under Rule 419
[24] I now turn to a final alternative, that the action be struck out under Rule 419 as disclosing no reasonable cause of action, as scandalous, frivolous or vexatious, or as an abuse of the process of the Court. Under this Rule a pleading may be struck out for want of a reasonable cause of action only if it is plain, obvious and beyond doubt that it will not succeed. If a pleading is not futile, but has any chance of success, it will not be struck out. When a pleading is challenged on the basis of want of a reasonable cause of action I must accept the statement of claim as if the facts have been proven, unless the facts are patently unreasonable. When testing for a reasonable cause of action no affidavit evidence is permitted (except where there is a jurisdictional issue and then, properly, a motion to challenge jurisdiction should be brought under Rule 401).
[25] Alternately, when the action is allegedly scandalous, frivolous, vexatious or an abuse of process, under Rules 419(1)(c) and (f), the test is as stringent as, or even more stringent than, that which applies under Rule 419(1)(a): Waterside Ocean Navigation Co. Inc. v. The Laurentian Forest, [1977] 2 F.C. 257 at 259, a decision of Associate Chief Justice Thurlow.
[26] Where a claim might possibly succeed if a pleading were amended, such an amendment ought to be allowed. To deny an amendment there must be no scintilla of a cause of action. In short, a court will not deny a party's day in court if there is any chance of the claim succeeding.
[27] In the present instance, accepting the Statement of Claim as if proven and recognizing that since I may not consider the 1989 Letter Agreement and the 1990 Agreement, the Plaintiff might well have a reasonable cause of action.
[28] In determining whether the Statement of Claim setting out the action is scandalous, frivolous, vexatious, or an abuse of the process of the Court, I may consider affidavit material.
[29] A frivolous plea is one which is so palpably bad that it requires no real argument to convince the Court, indeed it is a plea indicative of bad faith. A frivolous and vexatious action includes a proceeding which is brought or carried on by a plaintiff who is not acting bona fide: it is a proceeding which will not lead to a practical result. The words frivolous and vexatious define a claim which is obviously unsustainable: Attorney General of the Duchy of Lancaster v. London and North Western Railway Company [1892] 3 Ch. 274 at 277 (C.A.). The expression frivolous and vexatious includes proceedings which are an abuse of process: Ashmore v. British Coal Corporation [1990] 2 Q.B. 338 at 347 (C.A.). An abusive action is one which misuses or perverts the procedure of the Court. It has been characterized as an action which can lead to no possible good, one where the defendants are to be dragged through long and expensive litigation for no possible benefit: see Lord Justice Bowen's Judgment in Willis v. Earl Beauchamp (1886) 11 P.D. 59 at 63 (C.A.).
[30] In the present instance the Plaintiff claims all of, or alternatively, a portion of the Estate. The Defendants refer to both the 1989 Letter Agreement and to the 1990 Agreement, which not only provide a clear and complete release, but also an undertaking by the Plaintiff that the action be dismissed by consent, without costs. The Plaintiff received land and money from the Estate. There is no evidence that the Plaintiff received any less than she bargained for and indeed the Plaintiff by her lack of action between 1989 and 1996 appears to have been content with the disposition of the Estate for some seven years.1 The 1990 Agreement provides a complete answer to the action set out in the Statement of Claim. That being the case the action, as drafted, is clearly frivolous, vexatious and an abuse of the Court's process for it cannot lead to any practical result, but rather has and continues to drag the Defendants through long and expensive litigation for no possible benefit. I now turn to the possibility of a cure by amendment.
Amendment of Statement of Claim
[31] In answer to the Defendants' submission that a continuation of the action would be an injustice to the Defendants, the Plaintiff submits that any inconvenience caused to the Defendants might be compensated by costs. This is so with many forms of mere inconvenience. However, the disruption of the lives of the Defendants, by the spectre of a supposedly settled and forgotten dispute over land and money being resurrected, is no mere inconvenience. It needlessly threatens to return the Defendants to serious uncertainty and disruption after what to all intents and purposes appeared to be a sound contractual compromise in which the Plaintiff received a substantial part of the Estate and seemingly acquiesced, for a number of years, to that disposition of the Estate. This leads to the concept of the 1990 Agreement as a contract which might conceivably have been voidable at one time, but by delay and acquiescence is no longer a contract which might be set aside merely by amending the Statement of Claim.
[32] The Plaintiff, while going into little detail, says she wishes to amend the Statement of Claim to plead that she signed both the 1989 Letter Agreement and the 1990 Agreement under duress. This is a difficult plea to make given that the 1990 Agreement was preceded by the 1989 Letter Agreement. The 1989 Letter Agreement is not materially different from the result of the 1990 Agreement. The Plaintiff certainly had legal advice as to the 1989 Letter Agreement. However, leaving aside this very substantial barrier to amendment, there is a further insurmountable barrier which denies the Plaintiff even a scintilla of a viable cause of action through an amendment to plead duress.
[33] The conventional common law concept of duress is that of actual or threatened violence (or unlawful imprisonment) inflicted or threatened by another party to a contract, elements missing from the material in the present instance. Equitable duress includes pressure and coercion which do not, at common law, amount to duress. Moreover, duress has been expanded, in more recent years, to include emotional distress: see for example Mundinger v. Mundinger (1969) 3 D.L.R. (3d) 338, a decision of the Ontario Court of Appeal. In that instance Mrs. Mundinger, as a result of her husband's maltreatment, suffered a nervous breakdown, became depressed and while under the care of a family physician, who administered tranquilizers, was confined to hospital. While in hospital her husband sought to have her sign an improvident separation agreement: Mrs. Mundinger sought legal advice. Mr. Mundinger adopted a threatening attitude, plied Mrs. Mundinger with brandy, "for reasons best known to himself", and was able to obtain her agreement to a somewhat modified but still improvident separation agreement. Medical evidence established that Mrs. Mundinger was not in a mental condition to exercise proper judgment in matters affecting her property, rights and temporal welfare. The result of this is summed up by the Court at p. 341:
| "She was influenced by her husband when suffering from the effects of a serious nervous breakdown, while under the influence of tranquilizers and other forms of sedation prescribed for her condition and doubtless also while affected by brandy which was liberally provided by the husband for reasons best known to himself, to surrender all rights to future support and maintenance and to part with a valuable interest in two pieces of real estate for the paltry consideration of $10,000. Her condition was such that it can clearly be asserted that her husband was in a position of dominance and control over her of which he took full advantage by exercising undue influence upon her to carry off this improvident and nefarious transaction." |
The Court of Appeal then went on to refer to the test applicable in such a situation, that laid down in Vanzant v. Coates (1917) 39 D.L.R. 485 (Ont.C.A.), to the effect that if a person is in a situation in which he or she is not a free agent and not able to protect himself or herself, the Court of Equity will protect, not against the individual's own folly or carelessness, but against being taken advantage of by those in circumstances to do so because of their position (Mundinger at p. 341). The onus is upon the party seeking to uphold a contract to show that, throughout, his or her conduct was scrupulously considerate of the other party's interests (ibid, p. 342). The Court of Appeal found, in Mundinger, that "... there was that combination of inequality and improvidence which justifies the Court in saying that the defendant has failed to discharge the onus which, in the circumstances, was cast upon him." (loc. cit.). However, a plaintiff does have a certain threshold to establish when pleading duress.
[34] The test as enunciated by the Ontario Court of Appeal in Mundinger is not an easy one from which to benefit. Given the importance to the Plaintiff of the present motion I would have expected better evidence from her of the facts of the alleged duress, which facts are somewhat vague. A party intending to amend to establish a viable pleading, just as a party intending to rely on a pleading, must meet some bare minimum standard of adequacy: see for example Ceminchuk v. IBM Canada Ltd. (1995), 62 C.P.R. (3d) 546 at 551 and Coca-Cola Ltd. v. Pardhan and Universal Exporters, unreported 27 November 1997 reasons of Mr. Justice Wetston in action T-2685-95. I have doubt as to whether the Plaintiff, in this instance, could satisfy the test in Mundinger, but that doubt stops just short of denying that the Plaintiff might amend and establish a scintilla of a cause of action. The Plaintiff might, subject to her delay, conceivably be able to establish duress.
[35] Where the Plaintiff fails on the duress argument and this is a fairly simple proposition of law, is by reason of her delay in doing anything about the 1990 Agreement, other than to accept her agreed portion of the Estate, in December of 1991, with a general reservation that the funds were accepted, by the Plaintiff, without prejudice as a partial payment of the Plaintiff's claims against the Chief and Council of the Tsawwassen Indian Band and other parties relating to "the Highway Transaction and the issues involving the Joe Estate".
[36] A contract made under duress is not void from the beginning, but is voidable. Thus, in an instance of duress, the signing of a contract, by itself, does not bar relief, but if there has been a long and unexplained delay in raising and pursuing the allegation of duress that may be relevant and fatal. Here I have in mind the concept of a need to establish certainty in contractual and property matters. Or, as put by Lord Chancellor Thurlow, in Fox v. Mackreth (1788) 2 Bro. C.C. 400 at 427, 29 E.R. 224 at 238, there is need for a rule to
| "... set men at ease for their property, that, when they observe a transaction for the sale of an Estate cut down for inadequacy of value, after it has been affirmed by conveyance, and acquiesced in for three years and a half ...". |
[37] In the present instance the Plaintiff received a substantial portion of the funds in the Estate, together with land, in 1991. True, there was some protest, but of a rather general nature, from her lawyer. But there was no follow up, further comment from, or action by the Plaintiff for some five years. There is no evidence that the Plaintiff was debilitated and unable to look after her own affairs or to make decisions during those years. It was not until the Court awoke the Plaintiff, in April of 1996, that the Plaintiff did anything. Now as I have pointed out there is an onus on the Defendants, seeking to uphold the 1990 Agreement, however given the Plaintiff's lengthy delay she would certainly be denied recision of the 1990 Agreement at this point. By reason of delay, the Plaintiff's claim, even were it amended to plead duress, is bad at law and absent of even a scintilla of a chance of success. It is frivolous and vexatious and as such is an abuse of the process of the Court.
CONCLUSION
[38] To have an action cut short, thus denying a plaintiff a day in Court, can be a calamity. The Plaintiff, after receiving a substantial share of the Estate in 1991, has conducted this action in a desultory and uninterested manner, a manner which has courted the calamity of having the action cut short before trial. That undoing has been realized, for the Plaintiff cannot return parties to a transaction to suspense and uncertainty, after confirming the transaction and apparently acquiescing to it for many years.
[39] As I have pointed out, to be fair to defendants, they ought not to be dragged through lengthy and expensive litigation, to no purpose, but rather any litigation must come to an end so there may at some point be certainty. The law desires to achieve, within a reasonable time, a degree of certainty so litigants may get on with their lives. In this instance, the Plaintiff has delayed far too long and has given every indication of acquiescing to the agreed and actual distribution of the Estate, so long a delay that the 1990 Agreement is clearly and certainly no longer voidable. The Plaintiff's Statement of Claim is struck out as frivolous, vexatious and an abuse of the process of the Court, without leave to amend.
[40] The Defendants shall have the costs of this motion. The parties may speak to the overall costs of the action if they wish.
[41] I thank both counsel for their thorough presentations.
(Sgd.) "John A. Hargrave"
Prothonotary
April 1, 1998
Vancouver, British Columbia
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATED: February 16, 1998
COURT NO.: T-245-86
STYLE OF CAUSE: Shirley Larden
v.
HMQ et al.
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF
JOHN A. HARGRAVE, PROTHONOTARY
dated April 1, 1998
APPEARANCES:
Ms. Alisa Noda for Plaintiff/Appellant
Mr. Darwin Hanna for Defendants
SOLICITORS OF RECORD:
Ms. Alisa Noda
Burnaby, BC for Plaintiff/Appellant
Callison & Hanna
Vancouver, BC for Defendants
__________________
1 Counsel for the Plaintiff submits that some of the land received from the Estate by the Plaintiff contains burial sites and is therefore useless. Counsel for the Defendants submits that the Plaintiff chose the land and knew of the existence of the burial middens. As a practical matter I note this objection to the land seems not to have been raised at any early stage.