Toews Estate (Re), 2021 ABQB 323

Court of Queen’s Bench of Alberta Citation: Toews Estate (Re), 2021 ABQB 323 Date: 20210423 Docket: ES04 11129 Registry: Grande Prairie Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial Centre Grande Prairie Estate Name Anna Matilda Toews also known as Anna M. Toews also known as Anna Matilda Toews also known as Tillie Toews Applicant Marilyn Anne Telegus Respondent Kathryn Toews And Between: Docket: 1504 00772 Registry: Grande Prairie Kathryn Toews Plaintiff/Respondent - and - Marilyn Anne Telegus and Lorne Robert Toews, In His Capacity As Personal Representative of the Estate of Anna Matilda Toews Defendant/Applicant

And Between: Docket: DA04 00444 Registry: Grande Prairie Kathryn Toews and Ruth Walkley Applicants - and - Lorne Toews Respondent _______________________________________________________ Endorsement of the Honourable Mr. Justice Peter Michalyshyn _______________________________________________________ Introduction [ 1 ] The question to be decided is whether Marilyn Telegus as a party in the various actions relating to the Estate of Anna Toews is entitled to apply for

summary judgment. The proposed application is not opposed by Lorne Toews, in his capacity as personal representative of the estate or in his personal capacity. The proposed application is opposed by the respondents Kathryn Toews and Ruth Walkley. For reasons which follow the application for

summary judgment should be allowed to proceed. Background [ 2 ] These actions have been in case management. Following the applicant’s successful application for security for costs, and the posting of security, the applicant gave notice of her intention to seek

summary judgment. The respondent opposes on three grounds: that an earlier order of McLeod J has already decided the issue now raised; that the proposed application would be an abuse of process; and that the evidence is too much in conflict. The order of McLeod J

[3] The issues raised in the proposed application for

summary judgment were not decided by McLeod J in his chambers decisionof June 6, 2017. As noted in the Order filed June 20, 2017, McLeod J decided that the Will of Anna Toews shall be formally proved withrespect to both testamentary capacity and undue influence. The form of Order tracks the oral reasons of McLeod J given June 6, 2017,where at p 4 ll 5-6 the application to formally prove the will was granted.

McLeod J did not decide how that formal proof would unfold.As noted by counsel for the applicant, it was anticipated that a Case Management Justice would be assigned, before whom proceduraldirections could be sought. Further, as also noted, the June 20, 2017 Order itself contemplates that the matters in question will beconcluded “by trial or otherwise”.

Abuse of Process [4] Counsel for the applicant correctly argues that McLeod J has identified a ‘genuine issue to be tried’ in the context of theprocedural application before him, including a distinctly different record, and was a decision that gives rise to no res judicata concerns,nor to an abuse of process if the proposed

summary judgment application is allowed to proceed. The applicant’s reliance on Kent vWatts, 2019 ABCA 326 at para 23, is appropriate where, as here, the court was dealing with multiple interlocutory orders. I agree thatthe authorities relied on by the respondent are distinguishable as being cases dealing with the determination of substantive questions or,as in Burnie v Canadian Cancer Society, (MB CA), [1997] 6 WWR 344, where the court unequivocally ordered atrial of an issue Conflicting evidence [5] There is no question that the presence of conflicting evidence was noted in the context of the successful security for costsdecision. Different considerations may apply in the context of a

summary judgment application. Whether the evidence before the courtprecludes

summary disposition of the matters in issue is best determined by the court hearing the application. Further, the possibilityremains that yet further evidence from the respondents may be adduced now that the application for

summary judgment is allowed to goforward. Conclusion [6] The application for

Summary Judgment may proceed. [7] Without more, the applicant is entitled to her costs of the application in any event of the cause, payable forthwith, andpresumably from funds deposited pursuant to the earlier security for costs order. Should the parties be unable to agree, costs may bespoken to further. Heard on the 2nd day of March, 2020, with further written submissions of March 24 and April 14, 2020. Dated at the City of Edmonton, Alberta this 23nd day of April, 2021. Peter Michalyshyn J.C.Q.B.A. Appearances: Sara E. Hart for the Applicant Marilyn Anne Telegus Sydney Sabine for the Respondents Kathryn Toews and Ruth Walkley

Lorne Toews Self-represented