Cole v Brower, 2017 ABQB 766

Court of Queen’s Bench of Alberta Citation: Cole v Brower, 2017 ABQB 766 Date: 20171220 Docket: 1608 00280 Registry: Medicine Hat Between: Laurie Cole Plaintiff - and - Valerie Ann Brower in her Capacity as Personal Representative of the Estate of Roy Brower (Deceased), Estate of Roy Brower (Deceased), Daniel J. Smith and Ovalyn Ranches Ltd. Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R.A.

Jerke _______________________________________________________ Introduction [ 1 ] Laurie Cole and Roy Brower were married a number of years, after which unhappy differences arose. Their separation was complex because they had children and worked together, and each owned shares in an incorporated farming business named Ovalyn Ranches Ltd (“Ovalyn”). Accordingly, they consulted a number of advisors in the course of their divorce. [ 2 ] One of those advisors is now one of the defendants: Daniel Smith (Mr. Smith). Mr.

Smith is a lawyer who has practised business law in Medicine Hat since 1994; that is corporate, estate planning, tax, and transactional work. [ 3 ] Ms. Cole and Mr. Brower signed a non-binding letter of intent which provided for the payment to Ms. Cole of $500,000.00 as soon as reasonably possible. On receipt, Ms. Cole would “no longer have any rights or interest in [Ovalyn]”. That money was paid. In

addition, if any one of four events occurred, Ms. Cole was to be paid an additional $800,000.00. Amendments were made to these events, but Mr. Brower’s death was never included. The amended terms of the letter of intent were included in a matrimonial property contract which was signed in 2001. [ 4 ] The matrimonial property contract therefore does not include Mr. Brower’s death as an event which triggers payment of the $800,000.00. [ 5 ] Mr. Brower died in 2014. Ms. Cole is not named in Mr. Brower’s will. In addition to Mr. Smith, Ms.

Cole has named three other defendants: the estate; Roy Brower’s sister Valerie Brower, who is personal representative of the estate; and Ovalyn. [ 6 ] Ms. Cole’s allegation is that she agreed to transfer her shares in Ovalyn to give Mr. Brower operational control of the ranch, and that her remaining payment for the value of the shares, $800,000.00, was deferred until Mr. Brower was in a better financial position or until he no longer had control or operation of the ranch. She claims it was agreed and intended that Mr.

Brower’s death was an event that would trigger the payment of the $800,000.00. [ 7 ] The claims against Mr. Smith are as solicitor for Ms. Cole. Her claim for damages of $800,000.00 is based on a number of theories: 1. Breach of contract and negligence in preparation of the matrimonial property agreement by failing, refusing, or neglecting to provide that Ms. Cole would be paid an $800,000.00 additional payment upon Mr. Brower’s death. 2. Breach of contract and negligence in preparation of Mr. Brower’s will by failing, refusing, omitting, or neglecting to include a specific bequest of $800,000.00 to Ms. Cole. 3.

Negligence in acting for both Ms. Cole and Mr. Brower, and failing, neglecting, or omitting to advise Ms. Cole and Mr. Brower of the conflict this dual representation created. 4. Breach of contract and negligence for failing, omitting, or neglecting to properly represent Ms. Cole. [ 8 ] Due to the estate’s failure or refusal to honour the alleged agreement between Mr. Brower and Ms. Cole, a number of remedies are sought in Ms. Cole’s claims against Ms. Brower, the estate, and Ovayln (“the other defendants”): 1. Rectification of the matrimonial property agreement and payment of $800,000.00. 2.

Rectification of the will and payment of $800,000.00. 3. A constructive trust in Ovalyn. 4. A declaration that the share transfers were void ab initio and Ms. Cole continues to retain shares in Ovalyn. [ 9 ] Ms. Cole also alleges that after the matrimonial property contract was signed she continued to assist and provide valuable contributions and services to Mr. Brower and Ovalyn for no consideration. In her affidavit she swore that she continued to assist the ranch with banking, branding, book-keeping, and other activities for which she was not paid. So alternatively, Ms.

Cole asserts against the other defendants the equitable claims of unjust enrichment and proprietary estoppel, and seeks various alternate forms of equitable remedies. [ 10 ] In her application for advice and directions in the estate, Ms. Cole likewise claims rectification or

interpretation of the will to provide payment of $800,000.00 by a bequest or priority payment to her. [ 11 ] After Ms. Cole filed her Statement of Claim and her application for advice and direction in the estate action, all defendants applied for

summary dismissal of the action against them, and the personal representative cross-applied for

summary dismissal of the application for advice and directions in the estate. [ 12 ] The key issue in all of the

summary dismissal applications is whether the claims are barred by the Limitations Act , RSA 2000, c L-12. Facts [ 13 ] Ms. Cole and Mr. Brower married in 1980. They had two children, Pearl and Gordon Brower. In 2001, Pearl was 16 and Gordon was 14. They are now the residual beneficiaries in Mr. Brower’s will. [ 14 ] Both Ms. Cole and Mr. Brower owned shares in Ovalyn. Upon realizing that property division was necessary, they sought advice from their accountant, Mr. Schaufele, of MNP, and from Mr. Smith. [ 15 ] In April 2001, Ms. Cole and Mr. Brower met with Mr. Smith. Mr.

Smith prepared a non-binding letter of intent dated June 20, 2001, addressed to Ms. Cole and Mr. Brower. The letter dealt with the re-organization of Ovalyn including matters concerning the shares; the division of the couple’s other matrimonial property; support issues; and fees. It provided for the payment to Ms. Cole of $500,000.00 as soon as reasonably possible. On receipt, Ms. Cole would “no longer have any rights or interest in [Ovalyn]”. That money was paid. In addition, if any one of 4 events took place within 10 years of the signing of a matrimonial property agreement Ms.

Cole was to be paid an additional $800,000.00. Ms. Cole, Mr. Brower, and Ovalyn signed the letter on June 29, 2001, and the letter was provided to Mr. Schaufele. [ 16 ] The four events were:

(

i) Sale of all, or substantially all (defined as 75%), of the assets of Ovalyn; (ii) A sale of shares whereby Mr. Brower no longer had effective control of Ovalyn; (iii) Ovalyn was petitioned into bankruptcy, or placed into receivership; (iv) Ovalyn was wound-up or dissolved, either voluntarily or involuntarily. [ 17 ] Mr. Schaufele sent a letter to Mr. Smith on September 10, 2001 with “our instructions related to the reorganization of [Ovalyn]”. Mr. Smith drafted a matrimonial property agreement and before it was signed he was provided with a document listing amendments to the letter of intent.

The changes included amendment of the 10-year period for occurrence of the four events to 20 years, and reduction of the “75% substantial sale of assets” event to 50%. The letter of intent, MNP’s letter of instructions related to the reorganization of Ovalyn, and the amendments to the letter of intent were all attached as part of the matrimonial property agreement. [ 18 ] The matrimonial property contract provided that all the property of Ms. Cole and Mr. Brower “shall be divided pursuant to the letter of intent and the instruction letter with the exception of certain amendments set out on

schedule ‘C’ to this contract”. There is nothing specific in the contract about Mr. Brower’s will. Nor is there any other triggering event in the contract related to Mr. Brower’s death. The contract states, “The [parties] give up any claim to the estate of the other...Neither [of the parties] give up any gift left to him or her by any will...of the other”. [ 19 ] Mr.

Smith’s evidence is that he “prepared a non-binding letter of intent that reflected what Roy and Laurie then had in mind as the basis of their property settlement...I prepared a matrimonial property contract in accordance with the [letter of intent]...and some further amendments to the [letter of intent] that had been agreed to by Roy and Laurie”. [ 20 ] Ms. Cole signed the matrimonial property agreement before a lawyer, Stuart Smith (no relation to Daniel Smith), on December 12, 2001. Mr. Brower signed it before Daniel Smith on December 17, 2001. [ 21 ] The agreement between Ms. Cole and Mr.

Brower on all matrimonial property matters was therefore finalized by the end of December, 2001, and Mr. Smith’s involvement with Ms. Cole also concluded at that time. The documentary evidence to that point makes no mention of any agreement or obligation that the $800,000.00 was payable on Mr. Brower’s death, or that Ms. Cole was to be in Mr. Brower’s will. [ 22 ] After execution of the matrimonial property agreement, Mr. Smith prepared a number of wills for Mr. Brower, including his final will dated August 21, 2013. The will does not mention Ms. Cole at all.

Under the will Valerie Brower receives a specific bequest of $200,000.00 and the rest and residue of the estate goes to Pearl and Gordon. [ 23 ] Mr. Brower died on March 3, 2014. A grant of probate was issued for the will on June 25, 2015. [ 24 ] Mr. Smith acted on behalf of Mr. Brower’s personal representative, Valerie Brower. In that capacity, he published a notice of Mr. Brower’s death that invited creditors to come forward with their claims. Ms. Cole responded to the notice, sending a letter dated April 21, 2014, to Mr. Smith.

In it she claimed a request for inclusion and consideration, and an acknowledgement that the $800,000 was owed to her and provision was being made for its payment. She stated that “the intent of the agreement... [was that] the sum of $800,000 was to be paid upon Roy’s...loss of control of the shares of Ovalyn”. She again asserted her claim by letter on May 1, 2014, stating, “That agreement was to protect the interests of both parties...I left the $800,000 with Roy Brower”. Ms.

Smith’s response to her of May 7, 2014 states, “in our opinion and based on our legal research, the $800,000.00 is not payable to you, at the present time, pursuant to the matrimonial property contract”. She was never supplied with the formal form C11 requiring her to apply to allow her claim. She continued discussions with her children into the spring, and with Mr. Smith in August. [ 25 ] In her affidavit Ms. Brower deposed that she spoke with Ms. Cole and “informed [her] that she was not a creditor of the estate under the matrimonial property contract or at all”. [ 26 ] In cross-examination Ms.

Brower stated: Q What do you mean by “or at all”? A Well, there’s – from what I’ve been told, there’s nothing in the contract that would trigger her to get the money. Q Yeah. But you say “under the contract or at all”. What does “or at all” refer to? A It’s just an expression. Q Did you say that to her over the phone? A Don’t remember. Q Okay. But you didn’t tell Laurie during this call that she wasn’t named in Roy’s will, correct? A I didn’t tell her? Q Correct. A I don’t remember telling her. Q So during either of these visits, you didn’t tell Laurie that she was not in the will, correct?

A No. I didn’t tell her she was -- she never asked me directly. ... Q So since that call, which we’re going to say is sometime after April 21 st -- you said a few days after April 21 st -- since that call, have you and Laurie spoken directly? A She may have been at the house with her kids. Q When was that? A In the spring of two -- 2014 twice. Q Twice? A Two different times. Laurie probably has the dates. Q And do you recall the purposes for that visit? A I understand the purpose of that visit -- Laurie had wanted the meeting, and to convince the kids that that money was entitled to her.

That’s how I understood it. Q And did you speak directly with Laurie? A The only thing that I said to her was, You probably never thought of Roy dying. And she said, No, I didn’t. Q That’s the only thing you said on those two occasions? A And then I asked her if -- ‘cause the kids were trying to convince her that that they – you know, that the -- the -- the -- the ranch was left to the two kids. I asked her if she could have the ability to put herself and feel how someone else would feel in their situation. And she says, No, I can’t do that. [ 27 ] On July 22, 2014, Ms. Cole wrote to Ms. Brower and Mr.

Smith and said, A responsible executor will take this opportunity to do something good for the family. That executor will teach them about honor and respect and commitment and truth. They will show the family to appreciate the generosity that Roy received and the free hand to enjoy his life he was given. They will help the heirs to appreciate what they’re being given and not to expect to get everything. [ 28 ] On August 28, 2014, after a meeting on August 25, Mr. Smith informed Ms.

Cole that “this was not a sale but was a gift or bequest under the terms of ...[the] will.. and therefore,...the matrimonial property agreement does not apply..[and a] deemed disposition on death [does] not fit into...the matrimonial property agreement”. [ 29 ] On September 10, 2014, Ms. Cole stated in a letter to Valerie, Pearl, and Gordon Brower: I have a very large, very high-risk investment that I do not like.... Though we agreed that if Roy sold the ranch to Pearl and/or Gordon that I would get paid out, we did not discuss what would happen to my settlement if he willed it to them.

We didn’t talk about it when we should have, but the facts remain...He is done ranching and the account should be settled. My investment was never intended to be a part of any estate proceedings and I would never have considered that my own family would attempt to take it from me. Be that as it may, it is what it is… I am not yet willing to go to court. I am doubtful that anything will look any different in a year but I will leave things be for that long. [ 30 ] On July 5, 2016 Ms. Cole filed a statement of claim, and on July 13, 2016, filed an application for advice and directions in the estate.

Legal Principles Governing the Issues to be Determined [ 31 ] Rule 7.3(1) of the Alberta Rules of Court , Alta Reg 124/2010, permits

summary dismissal where there is no merit to a claim or part of a claim. The Supreme Court of Canada stated in Hryniak v Mauldin , 2014 SCC 7 , at para 49 : There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for

summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. [ 32 ]

Summary judgment or dismissal can be given if a disposition that is fair and just to both parties can be made on the existing record: Windsor v CPR , 2014 ABCA 108 . [ 33 ] The Court of Appeal explained in Whitecourt Power Limited Partnership v Elliott Turbomachinery Canada Inc , 2014 ABQB 135 , at paragraphs 9-10 :

In light of the Supreme Court’s decision in Hryniak v Mauldin, 2014 SCC 7 , [2014] 1 SCR 87, and decisions of this courtsince Hryniak,

summary judgment is no longer denied solely on the basis that the evidence discloses a triable issue. Rather, the courtasks whether there is any issue of merit that genuinely requires a trial or, conversely, whether the claim or defence is so compelling thatthe likelihood it will succeed is very high such that it should be determined summarily. A second consideration is whether examinationof the existing record can lead to an adjudication and disposition that is fair and just to both parties. See generally WP v Alberta, 2014ABCA 404 at para 26, 7 Alta LR (6th) 319; Windsor v CPR, 2014 ABCA 108 at para 16, 572 AR 317. The decision to grant or deny

summary judgment is an exercise of the chambers judge’s discretion.... [34] Section 3(1) of the Limitations Act governs the specific legal matters at issue on these

summary dismissal applications. Itprovides as follows: 3(1) Subject to subsections (1.1) and (1.2) and sections 3.1 and 11, if a claimant does not seek a remedial order within (a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known, (

i) that the injury for which the claimant seeks a remedial order had occurred, (ii) that the injury was attributable to conduct of the defendant, and (iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding, or (b) 10 years after the claim arose, whichever period expires first, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of theclaim. Questions for Determination [35] Determination of the

summary dismissal applications requires consideration of the following questions: 1. Has Mr. Smith shown there is no merit to Ms. Cole’s claim that he was negligent or breached his contract for preparation of thematrimonial property agreement because her time to sue has expired? 2. Has Mr. Smith shown there is no merit to Ms. Cole’s claim that he was negligent or breached his contract for preparation of Mr.Brower’s will because her time to sue has expired? 3. Have the other defendants shown there is no merit to Ms.

Cole’s claim that the matrimonial property agreement should be rectifiedbecause her time to sue for rectification has expired? 4. Have the other defendants shown there is no merit to Ms. Cole’s claim that Mr. Brower’s will should be rectified because her timeto sue for rectification has expired? 5. Have the other defendants shown there is no merit to Ms. Cole’s equitable claims because her time to sue has expired? [36] I find that Ms. Cole’s claims against Mr. Smith under the matrimonial property agreement and will are barred by theLimitations Act and should be summarily dismissed. Ms.

Cole’s claims against the other defendants under the matrimonial propertyagreement and for rectification of the will are also barred by the Limitations Act and should be summarily dismissed. [37] As to the equitable claims against the personal representative of the estate, the estate, and Ovalyn, a fair and just adjudicationcannot be made on the existing record. [38] Accordingly the action against Mr. Smith is dismissed in its entirety. The action against the remaining defendants isdismissed as concerns the claims under the matrimonial property agreement and rectification of the will.

The equitable claims remainextant. 1. Has Mr. Smith shown there is no merit to Ms. Cole’s claimthat he was negligent or breached his contract for preparationof the matrimonial property agreement because her time to suehas expired? [39] I find that more than 10 years have expired since Ms. Cole’s claim arose against Mr. Smith for representation during andpreparation of the matrimonial property agreement. The defence is so compelling that the likelihood it will succeed is very high, suchthat the claim should be determined summarily.

There are no facts relative to this determination in dispute: examination of the existingrecord can lead to an adjudication and disposition that is fair and just to both parties. Mr. Smith pleads the Limitations Act as a defenceand is therefore entitled to immunity from liability in respect of the claim. There are no other rules or statutory provisions that alter the

effect of the Limitations Act. This claim is summarily dismissed. [40] The Court of Appeal explained when the limitation period under s3(1)(

b) commences in Bowes v Edmonton (City), 2007ABCA 347 , 425 AR 123 (ABCA), at paragraphs 150 and 151: Section 3(1)(b), the unconditional limitation period, has its own express

interpretation section. Section 3(3)(

b) says:

(3) For the purposes of subsection (1)(b), ... (

b) a claim on a breach of a duty arises when the conduct, act or omission occurs; That paragraph is plain. It says that the time under the alternative absolute period starts to run from the negligent or wrongful act oromission itself. Therefore, one should not wait until the harm occurs. Where the Legislature adopts a specific event to start time running,that displaces the former discoverability rule: Ryan v Moore, 2005 SCC 38 , [2005] 2 SCR 53, 334 NR 355 (para 27). [41] Ms. Cole claims against Mr.

Smith for negligence or breach of contract leading to the preparation and execution of thematrimonial property agreement. All of the negligent or wrongful acts or omissions alleged by Ms. Cole occurred before or when theagreement was finalized. Mr. Smith drafted the matrimonial property agreement in 2001, and it was fully executed by Ms. Cole and Mr.Brower by the end of December, 2001. There is no evidence refuting or denying these facts. [42] The absolute limitation period started to run at the time of the negligent or wrongful act(

s) or omission(s), and expired late in2011. [43] Ms. Cole contends that her letter of April 21, 2014 was a notice of claim under the Administration of Estates Act, RSA 2000, cA-2, given prior to the date that her claim would otherwise be barred by the Limitations Act, so her claim against Mr. Smith is notaffected by the Limitations Act. There are two flaws in her argument. First, the Administration of Estates Act does not apply to this claim.Second, even if it did, it cannot renew a claim which is already expired. [44]

Section 38 of the Administration of Estates Act, in force at the time of Ms. Cole’s letter, provided: The Limitations Act does not affect the claim of a person against the property of a deceased person if notice of the claim is given inaccordance with this Act and the Rules to the legal representative at any time prior to the date on which the claim would be barred by theLimitations Act. [45] The

section relates to “the claim of a person against the property of a deceased person”. Ms. Cole’s claim against Mr. Smithunder the matrimonial property contract is in negligence and breach of contract. This is not a claim against the property of Mr. Brower.Section 38 of the Administration of Estates Act does not apply. [46] Second, Ms. Cole’s time for a claim against Mr. Smith under the matrimonial property agreement expired late in 2011. Evenif this

section applied, her letter is of no effect because she wrote and delivered it well after the expiry of the absolute limitation period. [47] Ms. Cole also contends that the limitation commenced on the date of the grant of probate. The date of the grant of probate hasno relevance to the start time for commencing an action against a solicitor for negligence or breach of contract for a claim long expired.And for the claims at issue which are not subject to an absolute limitation period, Ms. Cole has also failed to show any relevance of thedate of the grant of probate to discoverability. This will be discussed later in further detail. [48] Ms. Cole contends that

summary dismissal should not be granted because Mr. Smith’s evidence on all material facts is notcorroborated as required by the Alberta Evidence Act, RSA 2000, c A-18.

Section 11 of the Act provides as follows: In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposed or interested partyshall not obtain a verdict, judgment or decision on that party’s own evidence in respect of any matter occurring before the death of thedeceased person, unless the evidence is corroborated by other material evidence. [49] Ms. Cole’s action, while included in her action against the estate and its personal representative, is an action against Mr. Smithindividually. Within the meaning of the section, Mr.

Smith is not opposed to her, nor is he an interested party. “Interested party” means aperson “beneficially interested in the result”: Re Fricker (Estate of), 2005 ABQB 972; Stoddart v Stoddart, (1876), 39 UCQB 203(Upper Canada QB). [50] I find that s11 of the Alberta Evidence Act does not apply to Mr. Smith’s

summary dismissal application. 2. Has Mr. Smith shown there is no merit to Ms. Cole’s claimthat he was negligent or breached his contract for preparationof Mr. Brower’s will because her time to sue has expired? [51] I find that before July, 2014, Ms. Cole ought to have known of her claim against Mr. Smith for his preparation of Mr.Brower’s will. Mr. Smith pleads the Limitations Act as a defence, and the defence is so compelling that the likelihood it will succeed isvery high. The issue should be determined summarily.

Examination of the existing record can lead to an adjudication and disposition thatis fair and just to both parties. There are no other rules or statutory provisions that alter the effect of the Limitations Act. Mr. Smith isentitled to immunity from liability for this claim, and the claim is summarily dismissed. [52] Ms. Cole’s claim is that Mr. Smith failed to follow instructions to include a provision in Mr. Brower’s will for a specific

bequest to her of $800,000.00. But prior to July, 2014, she ought to have known all elements required by s3(1)(

a) of the Limitations Act:that she was not named as a beneficiary or creditor in Mr. Brower’s will; that it was Mr. Smith who had drafted the will; and that herclaim for entitlement, as either beneficiary or creditor under the will, was being denied. [53] In Nasrin v Bank of Nova Scotia, 2007 ABCA 10, the Court of Appeal described the relationship of s3(1)(

a) and therequirement of reasonable diligence at paragraphs 53 to 56: Where the accrual of a cause of action triggers the commencement of a statutory limitation period, as contemplated by

section 51(g), thecommon law discoverability principle applies. A statutory limitation period does not begin to run until the material facts on which thecause of action is based have been discovered or ought to have been discovered by the exercise of reasonable diligence: Nielsen vKamloops (City), (SCC), [1984] 2 SCR 2, 10 DLR (4th) 641 (SCC); Central & Eastern Trust Co v Rafuse, (SCC), [1986] 2 SCR 147, 31 DLR (4th) 481 (SCC).

This principle is reflected in the introductory words of section 2(2) of thenew Act, “...if, before March 1, 1999, the claimant knew, or in the circumstances ought to have known, of a claim...”.

The meaning of the words “knew, or in the circumstances ought to have known” is informed by the common law discoverabilityprinciple described in Central & Eastern Trust Co. v Rafuse at 224: [A] cause of action arises for purposes of a limitation period when the material facts on which it [the cause of action] is based have beendiscovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence. In considering the issue of when a claimant knew or ought to have known of a cause of action, a court must also be mindful of section3(1)(

a) of the new Act: N(

J) v Kozens, 2004 ABCA 394, 361 AR 177 (Alta CA) at para 28. The claimant must have known or have beenreasonably able to discover that: (

i) the injury or loss occurred; (ii) the injury or loss was attributable to the conduct of the defendant, and(iii) the injury or loss warranted bringing a proceeding. The principle of discoverability does not require perfect knowledge: De Shazo v Nations Energy Co, 2005 ABCA 241, 367 AR 267(Alta CA) at para 31. Mere suspicion is not sufficient to trigger the running of a limitation period; the plaintiff can be said to have“known” of the claim only when he has some support for his suspicion: Photinopoulos v Photinopoulos, (1988), 1988 ABCA 352, 92 AR 122 (Alta CA) at para 26. [54] Ms. Cole knew that Mr.

Brower had died by April 21, 2014. This is the date she sent her letter to Mr. Smith, whom she knewwas involved, because it was Mr. Smith that had caused the newspaper notice to creditors to be published. Ms. Cole asked for anacknowledgment that she was owed $800,000.00. [55] At some point in April she knew her claim was being refuted because she sent Mr. Smith a further request on May 1, 2014. Inboth letters she claims to be owed the $800,000.00 due to her agreement with Mr. Brower. This time, she received a response in writingfrom Mr.

Smith stating that she was not owed $800,000.00 under the matrimonial property contract. The refusal was absolute; she wasnot even provided a formal form C11 to apply for her claim. [56] In addition to having her claim refused by the estate solicitor, there is also uncontradicted evidence that she met at least twicewith her children in the spring of 2014 and spoke to them about the estate.

In addition, there is also evidence that she was told by theestate’s personal representative that she was not a creditor of the estate under the matrimonial property contract “or at all”, however it isunclear what this last phrase referred to. [57] All of this occurred prior to July, 2014. [58] If the applicable test to be met by Mr. Smith was proof on a balance of probabilities, it may be possible to find, based oninference, that Ms. Cole knew she was not a beneficiary under the will. In support of such an inference, it is noteworthy that none of herclaims in the first months following Mr.

Brower’s death were made on the basis that she claimed she was a beneficiary; they were allmade on the basis that the estate should be honouring the alleged agreement that Ms. Cole had with Mr. Brower to be paid $800,000.00upon the loss of Mr. Brower’s control of Ovalyn. [59] But the test to be met is not balance of probabilities. On this

summary dismissal application, Mr. Smith must show there is nomerit to Ms. Cole’s claim that at the relevant time she did not know she was not a beneficiary. In the evidence before me the focus iswhether Ms. Cole was entitled to the $800,000.00 pursuant to her alleged agreement with Mr. Brower; there is no clear evidence that Ms.Cole was told, or knew, she was not a beneficiary. To the contrary, Ms. Cole swears she was told by Mr. Brower, albeit years before, thatshe was in his will. [60] Considering all the circumstances I am therefore unable to find to the required standard that prior to July 2014, Ms.

Coleknew she was not a beneficiary pursuant to Mr. Brower’s will. [61] But that does not end the matter. I find that Ms. Cole could have easily acquired that knowledge through the exercise ofreasonable diligence by making routine inquiries. When Mr. Smith made it plain in his May 7, 2014 letter that the money was notpayable under the matrimonial property contract Ms. Cole could have asked him then, as solicitor for the estate, if she was a beneficiaryor otherwise in the will. She did not. When Ms.

Brower told her that that there was nothing in the matrimonial property agreement totrigger her to get the money from the estate, she could have asked her then, as personal representative, whether she was a beneficiary.She did not. She also said nothing to her children, who she knew were beneficiaries and were to receive the ranch. To all persons sheclaimed the $800,000.00 under the matrimonial property agreement. When she was told by all persons that her claim was rejected shesaid nothing about the possibility she might be a beneficiary. [62] It may be that Ms.

Cole did not fully appreciate the legal distinction between an estate creditor and a beneficiary. But theevidence of Valerie Brower, even though lacking in detail, is consistent with the notion that she made Ms. Cole aware that she was notreceiving anything under Mr. Brower’s will. She was speaking as personal representative of the estate. Combined with all the additionalinformation, Ms. Cole was in possession of much more knowledge than that which would merely trigger a suspicion, as discussed in

Nasrin . She should have taken steps to ascertain if she was a beneficiary under the estate. [ 63 ] I find that a reasonable claimant in the circumstances of Ms. Cole would have made some inquiry prior to July, 2014. The limitation period to sue Mr. Smith for preparing Mr. Brower’s last will was triggered when she failed to make that reasonable inquiry. [ 64 ] Ms. Cole again claims that s38 of the Administration of Estates Act , s11 of the Alberta Evidence Act , and the date of the grant of probate are relevant to her limitation period for bringing an action against Mr. Smith for the preparation of Mr.

Brower’s will. They are not, for the same reason that those matters were not relevant to Ms. Cole’s claim against Mr. Smith individually. 3. Have the other defendants shown there is no merit to Ms. Cole’s claim that the matrimonial property agreement should be rectified because her time to sue for rectification has expired? [ 65 ] I find that more than 10 years have expired since Ms. Cole’s claim arose against the other defendants under the matrimonial property agreement. The defence is so compelling that the likelihood it will succeed is very high, such that the claim should be determined summarily.

There are no facts relative to this determination in dispute: examination of the existing record can lead to an adjudication and disposition that is fair and just to both parties. The other defendants plead the Limitations Act as a defence and are therefore entitled to immunity from liability in respect of the claim. There are no other rules or statutory provisions that alter the effect of the Limitations Act .

This claim is summarily dismissed. [ 66 ] The claim against the other defendants in relation to the matrimonial property agreement is for rectification to reflect the true intentions of the parties: that Mr. Brower’s death was an event that would trigger the payment of Ms. Cole’s settlement payment of $800,000.00. A judgment in debt based on the rectified agreement is sought. [ 67 ] The omission alleged by Ms. Cole occurred before or when the agreement was finalized. The matrimonial property agreement was fully executed by Ms. Cole and Mr. Brower by December, 2001.

There is no evidence refuting or denying these facts. [ 68 ] As with the claim against Mr. Smith, the law in Bowes v Edmonton (City) applies, and the absolute limitation period started to run at the time of the negligent or wrongful act(

s) or omission(s). It expired late in 2011. [ 69 ] Ms. Cole contends that her letter of April 21, 2014 was a notice of claim under the Administration of Estate Act given prior to the date that her claim would otherwise be barred by the Limitations Act , so her claim against the other defendants is not affected by Limitations Act . This is a “claim of a person against the property of a deceased person”. But Ms. Cole’s time for this claim under the matrimonial property agreement expired late in 2011.

Her letter is of no effect because it occurred well after the expiry of the absolute limitation period. [ 70 ] Similarly, the date of the grant of probate has no relevance to the limitation period for commencing an action for rectification of a contract in respect of a claim long expired. [ 71 ] Ms. Cole also contends that

summary dismissal should not be granted because the other defendants’ evidence on all material facts is not corroborated as required by the Alberta Evidence Act . [ 72 ] But the evidence of the other defendants is purely documentary: it is based on a written contract dated in 2001. The facts are based on this uncontradicted documentary evidence that exists as a result of Ms. Cole’s relationship with Mr. Brower. In fact, she has the same evidence. It is not independent, unverifiable evidence solely from the other defendants. I find that s11 of the Alberta Evidence Act does not apply to this

summary dismissal application by the other defendants. 4. Have the other defendants shown there is no merit to Ms. Cole’s claim that Mr. Brower’s will should be rectified because her time to sue for rectification has expired? [ 73 ] I find that before July, 2014, Ms. Cole ought to have known of her claim against the other defendants for rectification of Mr. Brower’s will. The other defendants plead the Limitations Act as a defence, and the defence is so compelling that the likelihood it will succeed is very high. The issue should be determined summarily.

Examination of the existing record can lead to an adjudication and disposition that is fair and just to the parties. There are no other rules or statutory provisions that alter the effect of the Limitations Act . The other defendants are entitled to immunity from liability for this claim, and the claim is summarily dismissed. [ 74 ] Ms. Cole’s claim is that the will failed to reflect the intention of her and Mr. Brower to include a provision for a specific bequest or priority payment to her of $800,000.00.

But I have found that prior to July, 2014, she ought to have known, by making routine inquiries, all elements required by s3(1)(

a) of the Limitations Act : that she was not named as a beneficiary or creditor (the injury); that the problem arose in Mr. Brower’s final will (the injury was attributable to the testator); and that her claim for entitlement, as either beneficiary or creditor under the will, was being denied (it warranted bringing a proceeding). The limitation period to sue the other defendants for rectification of the will was triggered when she failed to make that reasonable inquiry, and this claim is therefore barred by the Limitations Act .

[75] Ms. Cole contends that her letter of April 21, 2014 was a notice of claim given in accordance with s38 of the Administration ofEstates Act, and was given prior to the date that her claim would otherwise be barred by the Limitations Act. Therefore, her claim againstthe other defendants is not affected by Limitations Act. I accept that Ms.

Cole’s claim for rectification of the will as against thesedefendants is a claim against the property of a deceased person, as required by s38. [76] However, s38 of the Administration of Estates Act only applies “if notice of the claim is given”. “Notice of the claim” is notdefined in the Act. [77] Both Ms. Cole and the other defendants referred to Saraceni v Saraceni, 2013 ABCA 354, and Ward v Traubner, (2004),2004 ABQB 565 , 368 AR 95 (QB).

Those cases address the interplay between the Limitations Act and the Administration ofEstates Act, however neither case addresses the sufficiency of a notice of claim, which is the issue here. Ward v Traubner is a casewhere the timing of a caveat and objection were considered. In Saraceni it is not clear what the claimant actually did to signify his claimagainst the estate.

Whatever it was, the Court of Appeal found that; “We are satisfied that the time limitation expired before theAppellant formalized his claim in a manner sufficient to be capable of further tolling the limitation period”, at paragraph 13. [78] Ms. Cole’s April 21, 2014 letter makes no reference to a potential claim as beneficiary, nor for rectification of the will.Instead, it makes a “request for inclusion and consideration.... according to the intent of the agreement...I am requesting formalacknowledgement that this money is owed to me and that provision for its payment be made in due course...”.

It may be that Ms. Coledid not fully appreciate the legal distinction between an estate creditor and a beneficiary, but even in that is the case I find that her letteris insufficient to be capable of further tolling the limitation period. [79] In my view, the notice contemplated by s38 must at least be in writing and be such that the personal representative has noticethat a formal claim is being made. Here Ms. Cole made a written request for inclusion and consideration. This is not a claim. She madethe request on the basis of the matrimonial property agreement, and the intention of the agreement, not the will.

She did not claim a gift;she did not mention the will. I find that s38 does not alter the effect of the Limitations Act on the basis of Ms. Cole’s letter because theletter does not give the personal representative the requisite type of notice. [80] Alternatively, Ms. Cole contends that the personal representative failed to comply with legal requirements in theAdministration of Estates Act, the Surrogate Rules, Alta Reg 130/1995, and the Estate Administration Act, SA 2014, c E-12.5, andtherefore she cannot rely on the time limitations in the Limitations Act.

There are three flaws in her argument. [81] The first flaw in Ms. Cole’s argument is that it is the actions of the claimant, not the personal representative, that potentiallytoll the Limitations Act. In effect, Ms. Cole’s argument is, “whether or not I gave notice of my claim, the personal representative mustcomply with the Surrogate Rules if he or she wants to bar a claim by relying on the Limitations Act”. That proposition is not found in anyof the legislation or rules referred to, and it is wrong in law.

Section 38 of the Administration of Estates Act clearly fixes the claimant, notthe personal representative, with the need to act if the Limitations Act is to be suspended. It states: “The Limitations Act does not affectthe claim of a person against the property of a deceased person if notice of the claim is given...to the legal representative”. [82] Second, I have not found that the personal representative failed to comply with any of the Surrogate Rules. Rule 38 sets outthe formal requirements for a published notice, if the personal representative decides to publish a notice.

If the personal representativedoes so, as Ms. Brower did here, the claimant’s obligation to notify the personal representative of their claim is triggered under r39. Ms.Cole did not give the requisite notice by her letter of April 21, 2014. She does not argue that her letter of May 1, 2014, which refers to“this agreement and its intent”, was notice of her claim. Nor would it be, because it too fails to give the requisite kind of notice.

Thus,because a r39 notice was not given, there were no further obligations on the personal representative under the Surrogate Rules. [83] The third flaw is that the Estate Administration Act does not apply to Ms. Cole as it relates to suspension or extension of thelimitation period. That act came into force on June 1, 2015: by then the limitation period for Ms. Cole to claim rectification of the willhad expired. It is therefore not necessary for me to consider what effect, if any, it might have in the circumstances here. [84] Ms.

Cole contends that in estate matters the limitations clock does not begin until the personal representative becomesformally and properly appointed by a grant of probate. She is wrong in law. Limitation periods are most often governed by theLimitations Act, in particular s3, no matter who the defendant is.

Section 38 of the Administration of Estates Act provides an exception inthe case of deceased persons where a notice of claim is given “prior to the date on which the claim would be barred by the LimitationsAct”. The grant of probate may have a part to play in the overall circumstances when assessing when or if a claimant knew or ought toknow material facts described in the Limitations Act, but in this case I have found that Ms. Cole ought to have known those material factswell before probate was granted. [85] Ms. Cole also contends that

summary dismissal should not be granted because the other defendants’ evidence on all materialfacts is not corroborated as required by the Alberta Evidence Act. [86] The material issue is that Ms. Cole ought to have known of her claim against the other defendants for rectification of Mr.Brower’s will. The evidence on this point is largely Ms. Cole’s own evidence, not the type of evidence for which the Alberta EvidenceAct requires corroboration. For example, I drew the inference that Ms. Cole knew that Mr. Brower had died by April 21, 2014. This isthe date she sent her letter to Mr.

Smith, asking for an acknowledgment that she was owed $800,000.00. And the inference I drew thatMs. Cole knew her claim was being refuted is based on her further request to Mr. Smith of May 1, 2014, where she again claimed to beowed $800,000.00. [87] Ms. Cole does not dispute receiving Mr. Smith’s letter. She also does not dispute that she was told by the estate’s personalrepresentative that she was not a creditor of the estate under the matrimonial property contract “or at all”.

All this evidence is from Ms.Cole. [88] I find that s11 of the Alberta Evidence Act either does not apply because so much of the evidence is from Ms. Cole, oralternatively, is satisfied by corroboration because of Ms. Cole’s evidence.

[ 89 ] Ms. Cole’s claim for rectification of Mr. Brower’s will as against the other defendants is summarily dismissed. 5. Have the other defendants shown there is no merit to Ms. Cole’s equitable claims because her time to sue has expired? [ 90 ] Ms. Cole claims that she materially contributed to the ranch during the marriage by doing work related to the ranch operation, and that after the matrimonial property agreement was signed she continued to provide Mr.

Brower and Ovalyn with banking, branding, book-keeping, and other valuable contributions for no consideration. [ 91 ] In effect, she claims that, if the matrimonial property agreement and will do not require the payment she claims, these circumstances give rise to various claims in equity. She seeks a variety of equitable and legal remedies. Gordon Brower recently provided an affidavit which may be supportive of Ms. Cole’s equitable claims. [ 92 ] The facts and evidence here are sparse. The claims are not easily discernable in the pleadings, and were not clearly articulated in argument.

Further, the substantive merits of Ms. Cole’s equitable claims were not argued in the dismissal motions. Accordingly I do not address the merits of the equitable claims in this decision. [ 93 ] This is not a claim under the matrimonial property agreement. So the ultimate limitation period is not triggered by the date the agreement was completed; it is triggered by the date when the circumstances giving rise to the equitable claim occurred. That is not known on the evidence here.

The evidence adduced does not enable me to make the factual findings to which I would then apply the Limitations Act . [ 94 ] I find that there may be merit to Ms. Cole’s equitable claims because the other defendants have not shown to the requisite high standard that her limitation to sue had expired by July 5, 2016. I also note that the other defendants did not seriously argue that the equitable claims are barred by the Limitations Act . [ 95 ] Ms. Cole’s equitable claims are not summarily dismissed. Conclusion [ 96 ] Ms. Cole’s claims against Mr.

Smith under the matrimonial property agreement and final will are summarily dismissed: the action against Mr. Smith is dismissed in its entirety. Ms. Cole’s claims against the other defendants under the matrimonial property agreement and for rectification of the will are summarily dismissed. The other equitable claims remain extant. [ 97 ] And so does the dispute. A dispute that pits a mother against her 2 children. [ 98 ] In the matrimonial property contract Mr. Brower and Ms. Cole agreed to first use a mediator if they had a disagreement about custody, access, and child support.

In other words, they selected alternative dispute resolution to attempt to resolve their relationship issues. Perhaps that route could now be used to try to come to some resolution with the remaining dispute, which is also substantially a relationship dispute. [ 99 ] If costs cannot be agreed they may be spoken to within 90 days from today. Heard on the 28 th day of July, 2017. Dated at the City of Medicine Hat, Alberta this 20 day of December, 2017. R.A. Jerke J.C.Q.B.A. Appearances: Benjamin Kormos/Martine Pettem, Walsh LLP for the Plaintiff

Richard Van Dorp, Peacock Linder Halt & Mack LLP for the Defendant, Daniel J. Smith John D. Evans, Stringam LLP for the Defendants Valerie Ann Brower and the Estate of Roy Brower