Royal Bank of Canada v Godbout, 2021 ABQB 321

Court of Queen’s Bench of Alberta Citation: Royal Bank of Canada v Godbout, 2021 ABQB 321 Date: 20210422 Dockets: 2010 00857, ES10 24029 Registry: Red Deer Between: Docket 2010 00857 Royal Bank of Canada Plaintiff - and - Carl Godbout, also known as Carl Antonio Godbout Defendant And Docket ES10 24029 Estate Name Carl Godbout, also known as Carl Antonio Godbout Applicants Linda Feeney and Keenan Anthony Feeney _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D. Rooke

_______________________________________________________ I. Introduction [ 1 ] On March 11, 2021, in a decision reported as Royal Bank of Canada v Godbout , 2021 ABQB 191 [ Godbout #1 ], I scheduled written submissions as to whether Keenan Anthony Feeney [Mr. Feeney] would be permitted to be a self-appointed representative of the estate of his uncle, Carl Godbout [Estate]. Those submissions have now been received. [ 2 ] Carl Godbout died on November 10, 2019. At that time Mr. Godbout lived in a condo in Red Deer. The Royal Bank of Canada [RBC] had financed purchase of the condo via a mortgage. Linda Feeney [Ms.

Feeney], Mr. Godbout’s sister, is presently the Personal Representative for Administration of the Estate: Alberta Court of Queen’s Bench Docket ES10 24029. [ 3 ] On August 19, 2020, RBC filed a Statement of Claim to initiate foreclosure proceedings in relation to the condo. The Estate was found in default on September 15, 2020. Foreclosure was granted by Master Mason on February 9, 2021. [ 4 ] On February 11, 2021, Mr. Feeney filed an application to appeal the Master’s foreclosure decision. Mr. Feeney indicated he represented the Estate as a self-appointed representative pursuant to Rule 2.14.

In Godbout #1 , at paras 16-18 , I identified two issues with Mr. Feeney’s self-appointment and him then purporting to have the authority to initiate the appeal: 1. The Estate was already represented by Ms. Feeney. 2. Mr. Feeney had not filed an affidavit in support of his self-appointment, as required by Rule 2.14. That meant that Mr. Feeney had no authority to file the appeal: Rule 2.14(4). [ 5 ] In Godbout #1 , I stayed the appeal until Mr. Feeney’s self-representation status was resolved. II. Subsequent Events and the Parties’ Positions A. Mr. Feeney [ 6 ] Mr.

Feeney says he has “a vested interest in this property, its belongings, and the equitable value for the Estate”. He disputes evidence advanced by RBC during the foreclosure and that the Estate had notice of that foreclosure. [ 7 ] Post- Godbout #1 , in a March 11, 2021 email, Mr. Feeney stated “there is nothing in the estate to even dispute over or divide ... The only asset in this estate to dispute is this property, currently with a negative value. ...” Mr. Feeney asked that I grant him administration over his Uncle’s Estate, but that funds from a personal bank account of Mr.

Godbout be paid to his Mother for her efforts to resolve the Estate. [ 8 ] On March 16, 2021, Mr. Feeney swore an Affidavit to satisfy the requirement set by Rule 2.14. The Affidavit and exhibits state: 1. Ms. Feeney is unable to administer the Godbout estate because her husband (Mr. Feeney’s father) died on January 4, 2021, and Ms. Feeney’s earlier attempts to complete the relevant documents were rejected. 2. Mr. Feeney has filed for a Grant of Administration of the Estate. Ms. Feeney requested that, and supports that step. 3.

There are other potential beneficiaries, including estranged relatives and a “living sibling”, however “she has sworn a renunciation to the estate”. 4. “The Property in dispute has a negative value in relation to what is owing, in contrast to market value. However, on book value it does remain an asset of the estate and ought to be assumed or purchased by a member of the family as the rightful heirs.” B. Ms. Feeney [ 9 ] In a February 9, 2021 letter, Ms. Feeney indicated Mr. Godbout was not intestate. She claims the RBC, on September 3, 2019, “waived outstanding mortgage amount of $621.28”.” Ms.

Feeney says she did not receive copies of the foreclosure litigation documents. She authorized Mr. Feeney “... to be included and permitted access to all portions of Carl Antonio Godbout’s property and court proceedings.” [ 10 ] Mr. Feeney’s March 16, 2021 Affidavit attaches a March 10, 2021 email from Ms. Feeney that identifies and explains her difficulties in administering the Estate, and requesting that her son receive the Grant of Administration for the Estate. C.

RBC [ 11 ] On March 23, 2021, Counsel for RBC made written submissions supported by two Affidavits of Sam Becker, sworn on February 2 and March 22, 2021. RBC observes that the status of the Godbout Estate is unclear, and that RBC has been informed there are other potentially involved relatives, some of whom are estranged or who have no relationship with Mr. Feeney.

[ 12 ] RBC observes that Rule 2.14(1)(

b) requires a self-appointed representative “... must serve notice of the appointment in Form 2 on the beneficiaries and heirs at law of the deceased.” RBC indicates whether that has occurred is unclear. [ 13 ] RBC also indicates it has received contradictory information on whether Mr. Godbout had a will or died intestate. If the former, no will has been supplied. Similarly, RBC has received inconsistent information as to how many siblings Mr. Godbout had. RBC documents that Mr.

Feeney has taken inconsistent positions on whether he has a personal interest in the Estate. [ 14 ] RBC, on these bases, expresses concern that Mr. Feeney is not acting in the best interests of the Estate and concludes: It appears [Mr. Feeney] is attempting to purchase this Property for his own purposes, and exclusive of his acting as litigation representative for the Estate . [ 15 ] The Becker Affidavits show that Mr. Feeney on February 9, 2021 claimed that Mr. Godbout did not die intestate, but instead “[t]he will was just not of conventional form ...”. Mr.

Feeney also has sought to purchase the Godbout condo, but for $38,000 below the condo’s $50,000 appraised value. D. Mr. Feeney’s Reply [ 16 ] On March 27, 2021, Mr. Feeney submitted a written reply to RBC. Mr. Feeney states he “... will ensure the estate does not have equitable assets swindled or stollen from deceased individuals ...” [sic], and that inconsistencies about the Estate and Mr. Godbout are “... due to the lack of administrator status ...”. Mr.

Feeney explains that his Uncle may have had a will, but the family has not been able to examine the condo’s contents, where that will may be located. [ 17 ] Mr. Feeney disagrees that he has not satisfied (or will not satisfy) Rule 2.14(1)(b). Mr. Feeney says the logical thing to do is for RBC to sell the condo to him. He has made an offer. Otherwise, he plans to carry this litigation to the Alberta Court of Appeal. E. Estate Personal Effects [ 18 ] On April 20, 2021, Counsel for RBC wrote Ms. Feeney concerning personal belongings of Mr. Godbout.

The letter stated all personal items found in the condo will be inventoried and packed pursuant to Rule 9.28, which concerns the treatment of abandoned goods. That property will then be released to its rightful owner, if one is established, but, if the condo is sold, Mr. Godbout’s property will be disposed or, left on site, or sold. [ 19 ] Both Ms. Feeney and Mr. Feeney have written me emails on April 21, 2021 in relation to the RBC April 20, 2021 letter. Ms.

Feeney states: “I insist not to touch any of the items or belongings in the estate as that will require personal involvement of other members of the family who own some of the belongings.” [ 20 ] Mr. Feeney writes: It has come to our attention that RBC is threatening to remove items from the estate without a member of the estate in attendance or permission. Noting, many of the belongings in the late Mr. Godbouts home are spoken for and are under the original and actual ownership of other members of the family and close friends, who have not been permitted an opportunity to be included in this process.

Including portions of the home and belongings that have not been able to be inspected for will or other possible documents that may be material and important to the court proceedings on going. I make this known in writing that the court and the parties are aware of these concerns from the estate as of today's date. It appears that that Witten LLP is attempting to seek a back door attempt to solidify their improper process. Permitting unknown persons into the residence before and without the family to ensure if there is anything that could assist the estates position in court.

That those papers or information obtained in the home, do not get included to further prove their malicious and improper conduct. III. Analysis [ 21 ] In Godbout #1 at para 18 , I indicated Mr. Feeney cannot pursue an appeal of Master Mason’s February 9, 2021 foreclosure order unless he files a Rule 2.14 Affidavit. Mr. Feeney has satisfied that criterion. [ 22 ] That leaves three issues: 1. whether Mr. Feeney should take over administration of the Godbout estate from his mother, 2. the status of the Appeal of the Master filed by Mr.

Feeney on February 11, 2021, and 3. issues concerning the personal property of Mr. Godbout and possibly third parties currently located in the condo. A. Mr. Feeney as a Self-Appointed Representative and Administration of the Estate [ 23 ] The affidavit evidence I have received makes it clear that Ms. Feeney no longer wishes to be the Administrator of the Godbout Estate. She seeks to have her son replace her. Mr. Feeney has also made it clear he would accept that role, and that he says he will discharge his responsibilities appropriately.

[ 24 ] There is evidence from the Feeneys and the Court’s records to show Ms. Feeney has had difficulty advancing administration of the Estate. Ms. Feeney states the recent death of her husband impedes her management of the Estate. [ 25 ] The latest statements of Mr. Feeney indicate that, as far as is known, Mr. Godbout died intestate. Mr. Feeney acknowledges that any will is hypothetical. One might be found in Mr. Godbout’s property, or might not.

If the information provided by Exhibit “C” of the March 22, 2021 Becker Affidavit is accurate, then the intestate Estate has only two potential beneficiaries, one of whom has renounced the Estate. Mr. Feeney appears to confirm that is correct. [ 26 ] Rule 2.21 grants the Court a broad authority and discretion to engage and manage litigation representatives: 2.21 The Court may do one or more of the following: (

a) terminate the authority or appointment of a litigation representative; (

b) appoint a person as or replace a litigation representative; (

c) impose terms and conditions on, or on the appointment of, a litigation representative or cancel or vary the terms or conditions. [ 27 ] I conclude that Ms. Feeney should be terminated as the representative of the Estate, pursuant to Rule 2.21(a). The Court appoints Mr. Feeney to replace her as the Administrator of the Estate pursuant to Rule 2.21(b). This is what both Ms. and Mr. Feeney want, and there is evidence that completing the Estate’s affairs is not otherwise likely to occur in a timely manner given Ms. Feeney’s unfortunate circumstances. B.

The Status of the February 11, 2021 Appeal [ 28 ] On February 11, 2021, Mr. Feeney purported to file an appeal of the February 9, 2021 foreclosure decision of Master Mason. In Godbout #1 at para 18 , I concluded that Mr. Feeney had no authority to file that appeal because Mr. Feeney had not satisfied the criteria to be a proper self-appointed representative. I therefore stayed the appeal pending this decision: para 19. [ 29 ] Mr. Feeney is now the Personal Representative and Administrator of the Estate.

He may now perfect (by this decision to approve his new status) and pursue the February 11, 2021 appeal, provided he also satisfies the requirements of Legal Profession Act , RSA 2000, c L-8 , s 106(1), as required by Oommen v Ramjohn , 2015 ABCA 34 , aff’d 2015 ABCA 58 , leave to appeal to SCC refused, 36382 (13 August 2015). In that case the appellant, Mr. Oommen, self-appointed himself as a representative of an estate. Veldhuis JA ruled that an estate must be represented by a lawyer to appear in Court: para 4. Justice Veldhuis explained how different court participants interact and their roles: Mr.

Oommen is therefore not entitled to appear in court on behalf of the estate of Mr. Chapman. If the executors wish to advance this appeal relating to the estate’s outstanding judgment, they must retain legal counsel to do so. Mr. Oommen’s self-appointment as litigation representative gives him the authority to direct the litigation or retain counsel, but not to appear in court ... [Emphasis added, citation omitted.] [ 30 ] Justice Veldhuis confirmed that result and analysis in Oommen v Ramjohn , 2015 ABCA 58 , leave to appeal to SCC refused, 36382 (13 August 2015): ... The Legal Profession Act does not permit Mr.

Oommen, either as a co-executor, co-beneficiary, personal representative or litigation representative to appear in court on behalf of the estate of Mr. Chapman. This action can only proceed through the courts if the estate is represented by someone authorized to appear for others in accordance with the Legal Profession Act . Mr. Oommen is not one of these people. ... ... Rule 2.23 of the Rules of Court allows a court to grant permission to a person to assist a litigant, but this appointment cannot conflict with s 106(1) of the Legal Profession Act . The law is clear that Mr.

Oommen cannot act for this estate in court. There are many reasons why only those licenced to practice law may appear on behalf of others (amongst them the fact that lawyers are professionally trained, and insured against negligence for the benefit of clients). These are sound policy reasons that support the legislative framework. Justice Veldhuis then terminated Mr. Oommen’s appeal, unless Mr. Oommen retained a lawyer. [ 31 ] The Oommen v Ramjohn decisions are a binding authority on this Court. Their result is that, no matter what Mr.

Feeney’s status was on February 11, 2021, when he purported to file the appeal, or as a result of this decision, Mr. Feeney had no authority to take that step. Only a lawyer retained by the Estate could appear in court on a valid appeal of the decision of Master Mason. [ 32 ] Mindful as I am of the obligations of the Court to self-represented litigants such as Mr. and Ms. Feeney, as set by the Supreme Court of Canada in Pintea v Johns , 2017 SCC 23 , I conclude that the appropriate path forward is to continue the stay of Mr. Feeney’s appeal. Mr.

Feeney, as Administrator, has 30 days from the date of this Decision to retain counsel. Once Mr. Feeney has retained a lawyer on behalf of the Estate, counsel for the Estate may, per Mr. Feeney’s instructions: 1. continue the (by then presumably perfected) appeal, or 2. file and serve an amended appeal within 14 days of being retained, and 3.

schedule a hearing for the earlier perfected, or amended appeal. [ 33 ] I extend the Rule 6.14(2) deadline to appeal a master’s judgment or order under Rule 1.4(1)(

h) to permit either continuation of the current perfected appeal, or an amended appeal, pursuant to the deadlines set above.

[ 34 ] If Mr. Feeney does not retain counsel, on behalf of the Estate, within 30 days of this decision, then the February 11, 2021 appeal is struck out as an unauthorized filing pursuant to Rule 1.4(2)(b). C. Property in the Godbout Condo [ 35 ] RBC holds legal title to the Godbout condo. RBC has the right to treat the materials in the condo as abandoned property, pursuant to Rule 9.28. Since Mr. Feeney is now the Administrator of the Estate, he holds the remaining personal property of Mr. Godbout in trust for the beneficiaries of the Estate. [ 36 ] Mr. Feeney has expressed concern that Mr.

Godbout may have had a will, and that will is (or may be) somewhere in the personal property of Mr. Godbout, located in the condo. Mr. and Ms. Feeney say that some of the contents of the condo actually belong to other persons. The Feeneys are the persons best positioned to ensure property is returned to its rightful owners, and not disposed of. [ 37 ] I conclude the best way to resolve the issue of Mr. Godbout’s property, and the possibility of a, as of yet unidentified, will, is to remove the contents of Mr. Godbout’s condo and place those into the possession of Mr. Feeney.

The Court will supervise this process in the manner set out in the next paragraph to better achieve the interests of both RBC and the Estate. [ 38 ] I therefore order: 1. RBC will, within 30 days of this judgment, inventory and pack the contents of Mr. Godbout’s condo, and report that inventory to Mr. Feeney and the Court. The inventory should generally document what items are located in each box or storage container. 2. RBC will transport the inventoried materials to a secure storage facility in Red Deer, and pay for the storage of that property for one month. 3. RBC will provide Mr.

Feeney access to the property stored in the secure storage facility in Red Deer, and inform the operators of the secure storage facility that Mr. Feeney is the Administrator of the Estate who holds the stored property in trust for the beneficiaries of the Estate. 4. RBC will report by affidavit to the Court and Mr. Feeney that it has completed steps 1-3. 5. After the property is stored, Mr. Feeney, as Administrator, will be responsible to either continue storage payments and/or retrieve Mr. Godbout’s personal effects from the Red Deer secure storage facility. [ 39 ] This process will allow Mr.

Feeney to take control of the contents of Mr. Godbout’s condo, including the property that reportedly belongs to other third parties, and to investigate whether Mr. Godbout had a will. IV. Conclusion [ 40 ] Ms. Feeney’s Administration of the Estate is terminated. Mr. Feeney is appointed as the Personal Representative and Administrator of the Godbout Estate. [ 41 ] Mr. Feeney has 30 days from the date of this judgment to retain counsel on behalf of the Estate, if Mr. Feeney chooses to instruct the Estate’s lawyer to pursue the February 11, 2021 appeal. If Mr.

Feeney does not retain counsel on behalf of the Estate by the 30-day deadline then the February 11, 2021 appeal is struck out. [ 42 ] RBC and Mr. Feeney are ordered to take the steps identified above to address Mr. Godbout’s remaining personal effects located in the condo, and the possible property of third parties. [ 43 ] Regardless of the status of the foreclosure, all parties now agree that the debts associated with the condo are greater than its fair market value. Mr.

Feeney has, nevertheless, made very clear that he intends to challenge RBC’s foreclosure proceedings by an appeal of Master Mason’s February 9, 2021 decision, and, if unsuccessful, Mr. Feeney will then pursue this matter to the Alberta Court of Appeal. All evidence is that the total value of the Estate appears to be very limited. If Mr. Feeney’s appeals are unsuccessful then RBC will unlikely be able to enforce cost awards against the Estate. Given Mr. Feeney’s apparently being able to purchase a condo for $38,000, if the appeal continues, RBC may consider whether Mr.

Feeney, as the Administrator of the Estate, pay into court security for costs, pursuant to Rule 4.22. [ 44 ] There are no costs associated with this decision. [ 45 ] Counsel for RBC will prepare and serve the Order giving effect to this decision. Mr. and Ms. Feeney’s approval of that Order is not required, pursuant to Rule 9.4(2)(c). Mr. and Ms. Feeney may be served this Decision and the corresponding Order to their email addresses: feenys@shaw.ca and keenan.feeney@gmail.com. Dated at Red Deer, Alberta this 22 nd day of April, 2021.

J.D. Rooke A.C.J.C.Q.B.A. Appearances: Steven M. Shafir Witten LLP for the Plaintiff Keeney Feeney Self-represented litigant Linda Feeney Administrator of the Carl Godbout Estate