Brown v Brown, 2014 ABQB 781

Court of Queen ’ s Bench of Alberta Citation: Brown v Brown, 2014 ABQB 781 Date: 20141218 Docket: 1301 03632 Registry: Calgary Between: Lee James Brown, Lynne Marie Brown and Marjorie Blacklock Plaintiffs/Respondents - and - Neil John Brown, Neil John Brown in his capacity as Personal Representative of the Estate of James Alexander Brown, Jean Lorraine Brown, Deneen Brown, and Danny Brown Defendants/Applicants _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice M.C.

Erb _______________________________________________________ [ 1 ] The Applicant Neil John Brown is the youngest of the four offspring of the late James Brown and his wife Jean of Stettler, Alberta. He seeks an Order for

summary judgment and discharge of the certificates of lis pendens filed by the Respondents against five of the 16 parcels of land which have, over the years, constituted the Brown family farm. [ 2 ] The Applicant Neil Brown claims the five parcels as his separate property and that dealing with them in advance of the

whole of the litigation involving the family farm simplifies the issues for trial. [ 3 ] Except for the home quarter, all of the assets of the original family farm have been transferred to Neil Brown and/or members of his immediate family. [ 4 ] The Respondents submit that the 16 parcels are all subject to a family farming agreement that contemplated a sharing of farm assets. They also allege that the five parcels at issue in this Application along with the other farm assets were transferred to the Applicants as a result of undue influence having been exerted on their parents.

The Respondents seek dismissal of the Applications to allow the litigation filed in March 2013, to run its natural course. They submit that there is no reason to parse the issues at this point. [ 5 ] For the following reasons, the applications for

summary judgment and discharge of the certificates of lis pendens are dismissed. History of the Action [ 6 ] James Alexander Brown died on February 5, 2010. During his lifetime, Mr. Brown inherited or otherwise acquired 16 parcels of farm land in the Stettler area of Alberta with his wife Jean. Mrs. Brown now resides in a seniors’ residence in Stettler. [ 7 ] In his Last Will dated October 1, 2001, Mr. Brown appointed his wife as his personal representative and his son Neil Brown alternate.

Upon the death of James Brown on February 5, 2010, the role of personal representative passed to Neil Brown when his mother, Jean Brown renounced as executrix. [ 8 ] Neil Brown remained on the farm throughout his lifetime, farming with his father until his death. His older brother by a decade, Lee Brown, farmed independently after working on the farm commencing in about 1968 and ceasing altogether in 2001.

When he left the farm, his father transferred to him the original farm quarter and, from that point, Lee Brown farmed independently. [ 9 ] The two Brown daughters, Lynne Brown and Marjorie Blacklock left the farm after finishing high school in the 1970s. However, they assert a historical role in the building of the farming operation as part of the family farm agreement. [ 10 ] The Applicants bring their application on the basis that there are no factual disputes. However, a review of the materials filed by both the Applicants and the Respondents suggests that this is a substantial over statement.

There are many issues related to the farm assets as a whole which require vive voce evidence to resolve: i. In their Statement of Claim, the Respondents allege that there was a family farming venture agreement among the parents and their offspring which contemplated a sharing of farm benefits; ii. It is also alleged that Neil Brown exerted undue influence on James and Jean Brown resulting in land transfers to himself personally as ‘gifts’ in conflict with the farming venture agreement; iii.

Lee Brown asserts that he worked for decades on the farm for which he was not adequately compensated at that time due to the promise of benefits from their parents’ estate; iv. The Respondents assert that the farm had its greatest period of growth prior to 2001. This included work related to three of the five parcels at a time when Neil Brown made no contribution because he was a young child; v. It is alleged that the land transfers to Neil Brown were kept secret from the other siblings until after their father’s death; vi.

The Respondents claim that Neil Brown could only have purchased the land he did by using farm assets, a claim which is denied. Alternatively, the Respondents argue that the parcel Neil Brown purchased was actually a neighbouring parcel unrelated to the family farm; vii. Neil Brown has not disputed the allegation that there is nothing in the farm ledgers supporting any land transfers for consideration. Neil Brown states in his cross examination on his affidavit that the purchase was through sweat equity. Test for

Summary Judgment [ 11 ]

Summary judgment applications may be made pursuant to Rule 7.3(1) of the Alberta Rules of Court : 7.3(1) A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds: (

a) there is no defence to a claim or part of it; (

b) there is no merit to a claim or part of it; (

c) the only real is issue is the amount to be awarded. [ 12 ] Such applications require a supporting affidavit(

s) swearing positively that one or more grounds have been met. [ 13 ] The focus of this Application is whether there is merit to the Respondents’ claims with respect to the five parcels sufficient to stave off an order for

summary judgment. and whether a trial is needed to determine the issues surrounding them along with the other farm assets. [ 14 ] In Hryniak v. Mauldin , 2014 SCC 7 , the Supreme Court of Canada approached the

summary judgment requirements by stating

that the “rules [of court] must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.” [ 15 ] The test for a successful

summary judgment application focusses on whether there is an issue of merit that genuinely requires a trial. There is no requirement to determine the issue, rather, it is simply necessary to find whether a triable issue has been raised.

This approach preserves the trial court’s ability to assess the merits on the usual weighing of credibility, reliability of the evidence and to decide what, if anything, it proves. [ 16 ] Whether a claim has merit, has direct links to the nature of the claims, specifically the claims made in the original pleadings. [ 17 ] The Respondents (Plaintiffs in the litigation) raise issues about undue influence, among others. The claims include the whole of the farm assets. [ 18 ] A major issue here is whether there was a family farming agreement as alleged and what evidence supports it.

This provides a segue into the issue of whether the parents were unduly influenced into ‘gifting’ certain lands to one son who in the end ended up with all 16 parcels of the farm’s land. There appears to be an issue as well about the impact of the transfers on any testamentary instruments. [ 19 ] In Lemoine v.Griffith, 2014 ABCA 46 , the Alberta Court of Appeal when considering issues involving a family farm enterprise, noted that a ‘sensible’ approach is required. [ 20 ] Specifically, this involves an examination of the family assets as a whole in the context of the issues raised.

Doing so would foreclose efforts to determine specific parcels of land separate from the whole, considering the efforts that may have gone in to a farm enterprise at different points in time. The Court also noted that links to specific assets is not required. At paragraph 38, the Court makes this observation: in the usual case there is no requirement to demonstrate a direct contribution relating to a particular asset. It is enough that a contribution is made to the overall value of the joint family venture.

The contribution also does not need to be direct, and may involve domestic services that enable the other party to focus attention on increasing the value of the family’s wealth. [ 21 ] In the context of the nature of the claims at issue, it would be necessary for a trial court to decide whether a farming agreement was in place, weigh the intention of the parties, consider the surrounding circumstances including the roles of family members, inter-relationships and ensuing events.

In addition, resolving the issues requires an assessment of whether the transfers were exercised by “full, free and informed thought” of the transferors and whether the transactions worked “unfairly by eliciting an undue benefit or an undue prejudice”. [ 22 ] A trial court is in the best position to resolve the issues of fact and law raised. Among them are accusations of undue influence and concealment of material facts arising from a special relationship. [ 23 ] In all of the circumstances, parsing Brown family farm assets is not ‘sensible’ in the manner contemplated by the Alberta Court of Appeal.

Application of Limitations Act [ 24 ] The Applicants also submit that the litigation itself is barred by application of the “ultimate limitation period” prescribed by the Limitations Act . In particular, that the cause of action arose when Neil Brown received his first transfer of land from his father. The Applicants claim that the 10-year limitation pre-empts the Plaintiffs’ claims to a substantial degree. [ 25 ] This too is an issue more properly determined by the trial judge.

Conclusion [ 26 ] There are issues in this litigation which have merit and genuinely require a trial. [ 27 ] Accordingly, the Applications for

summary judgment and discharge of the certificates of lis pendens are dismissed. [ 28 ] Costs may be spoken if to the parties are not able to agree. Heard on the 29 th day of October, 2014. Dated at the City of Calgary, Alberta this 18 th day of December, 2014.

M.C. Erb J.C.Q.B.A. Appearances: J.R.M. Deering/ A Sledziecka for the Applicants/Defendants/ B.J. Kormos/ C. Smith for Respondents/ Plaintiffs