Rafuse et al. v. Rafuse et al., (2011) 374 Sask.R. 35 (QB)

• Judge: Goldenberg, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: May 06, 2011
• Jurisdiction: Saskatchewan
• Citations: (2011), 374 Sask.R. 35 (QB);2011 SKQB 184

Rafuse v. Rafuse (2011), 374 Sask.R. 35 (QB)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. MY.056

Allan Rafuse, Patricia Rafuse and Pearl Lehman (plaintiffs) v. Raymond Clark Rafuse (defendant) and Brent Illingworth of Lindgren Blais Frank & Illworth (defendant)

(2007 Q.B.G. No. 373; 2011 SKQB 184)

Indexed As: Rafuse et al. v. Rafuse et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Battleford

Goldenberg, J.

May 6, 2011.

Summary:

An action involved a family dispute over title to farmland. Almost four years after the action was commenced, one of the defendants applied to dismiss the action for want of prosecution and requested that the Certificate of Pending Litigation be discharged.

The Saskatchewan Court of Queen's Bench, on the basis on inexcusable inordinate delay, dismissed the action for want of prosecution and ordered that the Certificate of Pending Litigation be discharged.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - Almost four years after an action respecting land was commenced, one of the defendants applied to dismiss the action for want of prosecution and requested that the Certificate of Pending Litigation be discharged - During that time, the action had only preceded to compulsory mediation, which was unsuccessful - The delay was inordinate - The plaintiffs alleged that the delay was the fault of their lawyer, who they thought was handling the matter expeditiously, but was in fact too busy to do so - There was no reasonable excuse for the delay - Notwithstanding the plaintiffs' purported concern, they never made an appointment with their lawyer to see why the matter was not proceeding as quickly as they would like - Further, after the lawyer withdrew from their case, it inexplicably took the plaintiffs five months to retain new counsel, even though they knew that the defendant was anxious to proceed - The defendant's farming operation (ability to obtain financing) was being adversely affected because the Certificate of Pending Litigation precluded him from obtaining needed financing - The interests of justice favoured dismissing the action - The Saskatchewan Court of Queen's Bench dismissed the action for want of prosecution and ordered that the Certificate of Pending Litigation be discharged.

Practice - Topic 5362

Dismissal of action - Grounds - General and want of prosecution - Prejudice to defendant - [See Practice - Topic 5360 ].

Real Property - Topic 7855

Title - Registration of instruments, etc. - Lis pendens or certificate of pending litigation - Vacating of - Grounds - [See Practice - Topic 5360 ].

Cases Noticed:

Carey v. Twohig, [1973] 4 W.W.R. 378 (Sask. Q.B.), refd to. [para. 4].

International Capital Corp. v. Schafer et al., [2010] 7 W.W.R. 407; 350 Sask.R. 160; 487 W.A.C. 160; 2010 SKCA 48, refd to. [para. 4].

Pedigree Poultry Ltd. et al. v. Boiler Hatching Egg Producers' Marketing Board (Sask.) et al. (2011), 371 Sask.R. 79; 518 W.A.C. 79; 2011 SKCA 39, refd to. [para. 25].

University of Saskatchewan v. Cana Construction Co. et al. (2011), 371 Sask.R. 30; 518 W.A.C. 30; 2011 SKCA 35, refd to. [para. 25].

Kurk v. Moldenhauer et al., [2011] Sask.R. Uned. 40; 2011 SKQB 80, refd to. [para. 25].

Gordstone Enterprises Ltd. v. McGinn (W.T.) & Assoc. (1980) Ltd. et al. (2010), 367 Sask.R. 165; 2010 SKQB 471, refd to. [para. 25].

McDiarmid Lumber Ltd. v. Ochapowace First Nation, [2010] Sask.R. Uned. 174; 2010 SKQB 402, refd to. [para. 25].

Anderson v. Wascana Wood Components Ltd. (2010), 361 Sask.R. 219; 2010 SKQB 357, refd to. [para. 25].

Closson v. Howson (1962), 41 W.W.R.(N.S.) 275 (Sask. Q.B.), refd to. [para. 29].

Tkalych v. Tkalych (2001), 208 Sask.R. 19; 2001 SKQB 208 (Fam. Div.), refd to. [para. 30].

Boulding v. Hall (1999), 191 Sask.R. 119; 1999 SKQB 264, refd to. [para. 33].

Design Recovery Inc. v. Schneider et al. (2003), 230 Sask.R. 231; 2003 SKQB 90, refd to. [para. 35].

Johnson v. Meyer et al. (1987), 62 Sask.R. 34 (Q.B.), refd to. [para. 38].

Counsel:

Randolph G. Kirkham, for Raymond Clark Rafuse, (Raymond), defendant/applicant;

Grant J. Scharfstein, Q.C., for Allan Rafuse, Patricia Coones and Pearl Lehman, plaintiffs/respondents.

This application was heard before Goldenberg, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Battleford, who delivered the following judgment on May 6, 2011.