HEIKE JANSEN PETITIONER - v. -, 2023 SKKB 106

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 106 Date: 20 23 05 24 Docket: DIV-RG-00585-2019 Judicial Centre : Regina, Family Law Division BETWEEN: HEIKE JANSEN PETITIONER - and - JOHN DOERKSEN RESPONDENT Counsel: James N. Korpan, K.C. for the petitioner Jeff W. Deagle for the respondent JUDGMENT/FIAT BROWN J. MAY 24, 2023 BACKGROUND [ 1 ] John Doerksen applies for an order that the agreement reached at the pre-trial settlement conference be binding upon both parties and the terms be incorporated into a final judgment. The conclusion of the pre-trial occurred on January 11, 2023.

This was a continued pre-trial, the initial attempt taking place in May of 2021 and which resulted in agreement regarding a few of the numerous disputed matters but not an entire resolution. [ 2 ] At the conclusion of the second/reconvened pre-trial the terms of the agreement achieved were reduced to writing in the form of an e-mail which was drafted concurrently by both counsel on behalf of both parties. It said; Hi Jeff, I write in order to record the terms of the settlement reached at today’s pretrial.

The parties agreed to settle the matter on the following basis: Heike shall keep 100% of the net sale proceeds from the family home. John shall transfer his interest in TWC to Heike, either by way of redemption, or share transfer after receiving advice from the parties Corporate accountant. John shall resign as a Director, and officer of TWC.

Heike shall assume liability for and agrees to indemnify John for all corporate debts for which they are personally liable. John shall keep the vehicle currently owned by TWC and shall assume responsibility for the associated debt within 30 days of the agreement. If John is unable to assume the debt, the car shall be sold, the debt shall be paid, and John shall keep the balance of the sale proceeds. TWC shall provide promissory [ sic ] to Heike and John for the amounts owed on their respective personally held credit cards used to pay TWC expenses. John shall make no further charges on his credit card.

TWC shall apply amounts available to apply against the loans on a pro rata basis, such that 77% of such amounts shall be paid towards John’s credit card, and 23% shall be paid against Heike’s credit cards until they are retired. Heike shell [ sic ] personally guarantee John’s credit card and shall ensure that TWC makes the minimum payment each month. Heike shall provide a monthly accounting of all amounts paid against the parties, respective credit cards. The party [ sic ] shall hire a mutually agreeable bookkeeper in order to sufficiently reconstruct the records of JHD such that the corporation can be wound up.

Thereafter, the remaining proceeds held in JHD’s Corporate account shall be divided equally. Heike shot [ sic ] roll over $5000 in RSP’s to John by way of a tax-free interspousal rollover. This agreement is subject to Heike receiving advise as to the implications of a potential bankruptcy. Heike shall have seven days in order to Obtain [ sic ] such advice. If Heike remains agreeable to these terms, after receiving such advice, then she shall instruct her counsel to prepare the minutes of settlement/interspousal contract.

If the proposed terms of this agreement are not acceptable, after receiving further advice, then the matter shall be returned to the Honourable Madame [ sic ] Justice Baldwin, by way of a pretrial conference. James N. Korpan, K.C. … [ 3 ] Ms. Jansen (now Edwards) did receive advice regarding bankruptcy and instructed Mr. Korpan accordingly. He prepared the formal documents which would finalize the details of agreement such as effecting a transfer of shares and corporate assets to Ms. Edwards and other such incidents ancillary to the agreement. The documents were sent to Mr.

Deagle by letter dated January 23, 2023. [ 4 ] Ms. Edwards avers to Mr. Doerksen expressing to her subsequent to the finalizing documents being advanced to Mr. Deagle that it was a “lousy deal” and he was “not going to sign it”. [ 5 ] Mr. Doerksen in response avers to not being present when the e-mail was drafted or when it was sent. He further says that Ms. Edwards had been primarily involved in the bookkeeping of the business and that he was unaware of the financial situation of the store.

He says that they were in agreement to the house being sold but that after the sale he no longer has access to money, has very limited funds and he draws no income from the business anymore. [ 6 ] Mr. Doerksen also says that part of the settlement pre-trial revolved around his personal credit card which was used for the business and which had an approximate outstanding balance of $52,000 at the relevant time. This credit card debt, he says, was to be paid off over time by Heike and that this was in fact not done.

Instead, on April 4, 2023, the credit card was paid off by virtue of him paying $26,000 himself and Ms. Edwards paying the remaining $26,000. [ 7 ] In response Ms. Edwards submits that she never withheld financial information from Mr. Doerksen at any time, that The Wine Cellar Ltd. [TWC] continued to make loan payments on Mr. Doerksen's vehicle and monthly payments on his cell phone and that it was her suggestion to pay off the credit card debt of $52,000 as it was costing them $800 a month in interest charges.

Thus, they were in agreement and each withdrew $26,000 from their RRSP's, paid off the credit card debt, and were therefore both saving money. She offers now to consent to an order requiring The Wine Cellar Ltd. to provide Mr. Doerksen with a promissory note in the amount of $26,000 representing the amount he paid personally. She also says she will consent to an order that The Wine Cellar Ltd. pay $432 per month against the promissory note owing to Mr.

Doerksen until it is retired to place him in the same position he would have been in if The Wine Cellar Ltd. paid half of the credit card debt of $863 monthly on his behalf had it not been paid out. [ 8 ] Ms. Edwards argues that the only condition on which the minutes of settlement were contingent in order to became fully binding on both parties was her determination as to whether she chose not to proceed with the settlement after receiving advice as to the effect of a potential bankruptcy of TWC. She did obtain such advice and thus became ready to proceed and did proceed.

She submits that it is not appropriate for the matter to come back to pre-trial simply because Mr. Doerksen has changed his mind. She seeks for it to be enforced in its terms and reduced to a judgment that is binding on both of them. [ 9 ] In argument Ms. Edwards submits that it should not go back to the pre-trial Justice because that will delay matters unnecessarily and she has been struggling to conclude the matter for years already.

She submits it is clear that an agreement has been concluded which meets all of the criteria set out in the recent Anderson v Anderson , 2023 SCC 13 decision for this to be a binding agreement which is reduced to a judgment. ISSUE 1. Should the question of whether the settlement purported to have been achieved at pre-trial is binding in nature and enforceable be determined in chambers? 2. If issue 1 is properly decided in chambers, is there a binding settlement here that can be enforced against Mr. Doerksen? 1.

What Process is to be Employed? [ 10 ] Ruskin v Chutskoff Estate , 2004 SKCA 107 , 243 DLR (4th) 432 [ Chutskoff Estate ], established the process to employ when an application for judgment is sought due to a dispute between parties to an agreement reached at a pre-trial conference:

[18] The procedural query is whether the application to set aside should be made to the pre-trial conference judge or to some other judgeof the court. In my respectful view, the pre-trial conference judge is, generally speaking, particularly well positioned to hear theapplication. After all, it is that judge who conducted the settlement discussions and knows what went on. This is especially importantwhere there is a controversy as to the facts. Unlike a fresh judge, the pre-trial conference judge would not be encumbered by the rules ofconfidentiality, privilege and immunity that encase a pre-trial conference.

Because of his/her familiarity with the proceedings, he/she isin a pre-eminent position to assess whether the minutes of settlement were precipitated or influenced by a mistake, innocentmisrepresentation, possible fraud, duress or undue influence. Unlike a fresh judge, he/she would have the power to re-open thesettlement conference if the circumstances so warranted and, if re-opened, to try again with a view to reaching a new settlement. Thejudge, of course, would have the power to set aside the minutes and direct that the proceedings resume their ordinary course, or confirmthe minutes and enter

summary judgment based on the minutes should he/she be asked to do so. [19] It is not always, however, that a pre-trial conference judge will be able to hear an application to set aside minutes produced by theconference over which he/she presided. The judge may be deceased, retired, incapacitated or, for some other reason, unavailable to hearthe application. He/she may for administrative or personal reasons be unable to hear the application. The application will then need to beheard by a fresh judge.

That judge, though not as well positioned as the pre-trial conference judge, nevertheless would have thejurisdiction to set aside the minutes of settlement and direct that the proceedings resume their ordinary course, or confirm the minutesand enter

summary judgment based on the minutes should the judge be asked to do so. [11] A matter such as this is therefore, in normal circumstances, best presented to the pre- trial judge. In Enns vCaithcart, 2006 SKQB 102, 277 Sask R 1 it was stated thus: [16] If the chambers judge is the judge who conducted the pre-trial conference at which the agreement was reached, he or she has moreremedial options than does a chambers judge who was not involved in the pre-trial conference. One of those options is the discretion toorder the resumption of the pre-trial conference previously conducted by that judge.

Usually this would be done in cases where all theparties to the action requested a resumption of the pre-trial conference, in cases where the agreement was not a full and final agreement,or in cases where an issue arose subsequent to the initial pre-trial conference that would likely have significantly changed the agreementmade by the parties. [17] If the pre-trial conference judge sitting in chambers does not opt to direct a resumption of the pre-trial conference, he or she has theoption of determining the issue summarily or, alternatively, directing the trial of the issue. [12] This procedure was also applied in Engelberts v Bruce, 2006 SKQB 112.

In Cozart v Cozart, 2006 SKQB 210,280 Sask R 207 Justice Ryan-Froslie (as she was then) stated: 7 This Court has power, pursuant to s. 29 of The Queen's Bench Act, 1998 to summarily enforce or set aside an agreementcompromising an action. (See: Childs v. Childs Estate (1987), (SK CA), [1988] 1 W.W.R. 746 (Sask. C.A.)). Thispower applies to settlements reached during pre-trial conferences (See: Verma v. Verma (1995), (SK CA), 17 R.F.L.(4th) 110 (Sask. C.A.)). 8 The Saskatchewan Court of Appeal in Chutskoff Estate v. Ruskin, 2004 SKCA 107, 12 R.F.L. (6th) 136 (Sask.

C.A.), determinedthat applications for judgment based on agreements made during pre-trial conferences should, if possible, be made to the pre-trialconference judge. … [13] Ms. Edwards argues that more time, delay and ensuing cost will result if Chutskoff Estate is applied and thoseshould not be further incurred in this matter.

The assets are limited and the parties not equipped financially to keep litigating this matter.In Kuski v Wetsch, 2009 SKQB 90 [Kuski] Justice Sandomirsky noted that dilemma and what that suggested: [8] To order an expensive trial to determine if the parties actually achieved a binding settlement would be costly, time consuming andwould surely exacerbate the conflict in this former family. I will not subject the parties to this unsavory option. [14] In the Kuski decision, Justice Sandomirsky was the pre-trial judge so his comment was in relation to one of thevarious options he had open to himself. Ms.

Edwards can, of course, present this concern to the pre-trial judge. [15] Justice Goebel in Anderson v Forsyth, 2022 SKQB 21, 70 RFL (8th) 441 [Forsyth] noted this procedure at para.21 and indicated that there has been a refined process developed within the context of family law settlements about which a disagreementhas arisen. Forsyth, given when it was written, was determined with reference to the then-governing authority; Anderson v Anderson,2021 SKCA 117, 463 DLR (4th) 217, the Saskatchewan Court of Appeal decision.

The procedure set out in Anderson v Anderson, 2023SCC 13 at the Supreme Court of Canada level will now need to be applied given its recent release. Ultimately, the issues encountered inForsyth led Justice Goebel to set the matter for a one-day

summary hearing. [16] There will no doubt be situations which dictate a deviation from the course plotted in Chutskoff Estate ofproceeding with disputes such as this before the pre-trial judge. That is the desired practice, but not the only possible practice. The Courtof Appeal in Chutskoff Estate recognized exceptions to this based on factors which range from impossibility through to administrativedifficulty.

The examples noted in Chutskoff Estate include the pre-trial judge being deceased, retired, incapacitated or, for some otherreason, unavailable to hear the application including for administrative or personal reasons. A matter may be urgent and the pre-trialjudge unavailable for some extended period of time and this would also qualify as an exception. [17] However, this practice is nonetheless the preferred route unless a sufficient reason to depart from it exists. I donot find that a sufficient reason exists here.

While it has been some time since this matter was first instituted, the final portion of the pre-trial was concluded in January of this year. Some progress has been made on several of the issues at play. It does not appear from thematerials that prejudice will befall Ms. Edwards if the matter is referred to the justice who presided over the pre-trial and this issue isdealt with expeditiously. The cost of proceeding before the pretrial judge should not be significant and the value of the family propertywarrants the same. The evidence and arguments are primarily already prepared.

I am at a disadvantage with respect to things said, doneand undertaken as part of the pretrial, which spans two years and two different occasions. It is best in these circumstances that the

pretrial judge hear the application. [ 18 ] As a safeguard, if for some reason the scheduling of a resumption unexpectedly cannot take place within a reasonable time, the matter can be placed back on my chambers list or referred back to me to revisit this direction in the circumstances then existing. [ 19 ] The determination as to imposing a judgment, resuming the pre-trial, or setting up a hearing ought, in these circumstances, be made by the pre-trial judge who has dealt with these parties and their dispute to this point.

The matter is therefore directed to be scheduled in front of the pre-trial judge in consultation with counsel and the local registrar. COSTS [ 20 ] In the circumstances costs will be left to be addressed by the pre-trial judge. J. D.J. BROWN