Powell Estate (Re), 2023 ABKB 203

Court of King’s Bench of Alberta Citation: Powell Estate (Re), 2023 ABKB 203 Date: 20230406 Docket: ES03 165016 Registry: Edmonton Court File Number ES03 165016 Court Court of King’s Bench of Alberta (Surrogate Matter) Judicial Centre Edmonton Estate Name Leonard George Powell Applicant Kerry Megan Powell Personal Representative Beneficiaries (Residuary) Beneficiaries (Non Residuary) Minors Kerry Megan Powell Clinton Bruce Powell Fraser Dean Powell Kerry Megan Powell Erin Paige Angelina Ravlic Joshua Stefan George Bell Powell Haven Amelia Rice Lexy Bell Powell Toryn Jedidiah Rice RTR PLP RTR PLP

_______________________________________________________ Reasons for Decision of the Honourable Justice N.J. Whitling _______________________________________________________ I. Introduction and Factual Background [ 1 ] The Applicant, Kerry Megan Powell, is the Personal Representative of the Estate of Leonard George Powell.

She has brought an application for advice and directions with respect to the service of her notices of application for a grant of probate pursuant to the Surrogate Rules , A.R. 130/95 . [ 2 ] By her counsel, the Applicant sent the required notices for a grant of probate to the beneficiaries of the estate by email.

All of the beneficiaries are self represented, and all of them replied in writing, acknowledging that they had received the documents. [ 3 ] On February 7, 2023, counsel for the Applicant submitted affidavits of service to the court for filing, which affidavits indicated that the beneficiaries had been served by email, and had acknowledged service in writing. [ 4 ] On February 14, 2023, the clerks of the court rejected the affidavits of service on the basis that service by acknowledgment was not acceptable service and that the Applicant was required to comply with the Surrogate Rules . [ 5 ] The Applicant applied for advice and directions respecting this method of service, and requested “[a] written decision for the benefit of the Estates Bar and Surrogate Clerks.” [ 6 ] This matter was brought before me in morning chambers on March 23, 2023.

At that time, I granted the application, and directed the clerk to accept the Applicant’s affidavits for filing. I also indicated a general agreement with the submissions contained in the Applicant’s pleadings, as well as a willingness to provide written reasons to follow. These are those reasons. II. Applicable Rules [ 7 ] Service in non-contentious matters under

Part 1 of the Surrogate Rules is addressed by r. 26(3) which states: 26(3) A person may be served under this rule by (

a) leaving the document with the person, (

b) sending the document by recorded mail addressed to the person, or (

c) giving the document to a lawyer who is authorized to accept and who, in writing, accepts service on behalf of the person. [ 8 ] The Applicant emphasizes that r. 26(3) uses the permissive term “may” and does not expressly state that service “shall” or “must” be carried out in accordance with r. 26(3)(a), (

b) or (c). [ 9 ] Since r. 26(3) does not expressly state that a person may be served by way of email and written acknowledgment, the Applicant next relies upon r. 2(1) of the Surrogate Rules which states: 2(1) The Alberta Rules of Court (AR 124/2010 ) apply to an application to the court if the matter is not otherwise dealt with under these Rules or the context indicates otherwise. [ 10 ] The provision of the Alberta Rules of Court that the Applicant seeks to import via r. 2(1) of the Surrogate Rules is r. 11.18: 11.18(1) A self-represented litigant may accept, in writing, service of a commencement document.

(2) Service is effected under this rule on the date that the self-represented litigant accepts service of the document in writing. [ 11 ] In Toronto Dominion Bank v Halliday , 2022 ABKB 764 , Summers J. held that by operation of r. 11.18 and 11.30 of the Alberta Rules of Court , service of a commencement document by email, together with a written acknowledgment by the self-represented litigant being served, demonstrates good service without the need for an order validating service. The Applicant essentially seeks advice

and directions stating that the reasoning in Halliday applies to proceedings under

Part 1 of the Surrogate Rules. III. Analysis of r. 2(1) of the Surrogate Rules [12] In the Civil Procedure Encyclopedia, (Edmonton: Juriliber, 2003) Vol. 3, pp. 65-35 – 65-42, the learned authors cite manycases in which the various Canadian “gap rules” have been considered and applied. It appears, however, that there are very few Albertacases which have considered the scope and applicability r. 2(1) of the Surrogate Rules in any degree of detail, and little in the way of aprincipled test appears to have been developed respecting its

interpretation and scope. The same can be said for the “analogy gap rule”contained in r. 1.7(2) of the Alberta Rules of Court which states that “[t]hese rules may be applied by analogy to any matter arising thatis not dealt with in these rules.” [13] In both Bolt v Popke, 2003 ABCA 156 at para. 8, and Bolt v Popke, 2003 ABCA 311 at para. 24, the Court of Appeal statedthat by operation of r. 2(1), “[t]he Surrogate Rules incorporate the Alberta Rules of Court”. However, I do not interpret those obiterremarks as holding that all the latter rules are automatically incorporated into the former rules.

The express language of r. 2(1) states thatthe Alberta Rules of Court only apply to an application under the Surrogate Rules “if the matter is not otherwise dealt with under theseRules or the context indicates otherwise”. Plainly, that language will not always be satisfied. [14] A detailed history of the Surrogate Rules was provided by Michalyshyn J. in Decore v Decore, 2016 ABQB 246.

That historyincluded the following comments of interest respecting the “fall-back” function of r. 2(1): 128 It is worth noting that the [Alberta Law Reform Institute’s October, 1991 Report for Discussion No. 10, entitled “Revision of theSurrogate Rules”] raised the question of abandoning most of the surrogate rules’ approach in contentious matters, in favour of thegeneral Alberta Rules of Court.

In the end, however, the 1991 Report recommended that the then-current surrogate rules be re-written toprovide a specific procedure for all estate contentious matters (excepting Proof in Solemn Form and Passing of Accounts), subject to, ashad always been the case, a ‘fall-back’ provision to the general Rules of Court (now s. 2, but in the 1971 Rules, s. 51, which then ‘fellback’ not only to the Alberta Rules of Court but also to “...the practice [...] as in the Probate, Divorce and Admiralty Division of the HighCourt of Justice of England”). [15] Given the relative lack of guidance from the existing Alberta case law, it is helpful to consider the case law respecting the gaprules of other Canadian jurisdictions. [16] In Reekie v Messervey, (SCC), [1990] 1 SCR 219, Sopinka J. considered the gap rule contained in r. 7 of theRules of the Supreme Court of Canada, SOR/83-74, which applies “[w]henever these rules contain no provision for exercising any right”and wrote: [Rule 7] ensures that the Court is empowered to give effect to substantive rights, notwithstanding a deficiency in the rules.

It is subject tothe limitation that the Court is not permitted to act in a manner that flies in the face of the express provisions of a rule. [17] In R v CAE Industries, (SCC), [1977] 2 SCR 566 at p. 567, Laskin C.J. considered the gap rule contained inr. 4 of the Federal Courts Rules, SOR 98-106, which applies to “any procedural matter not provided for in these Rules or in

an Act ofParliament”, and held that that rule cannot be used to effect amendments to the existing rules: We are unable to agree with the contention of the respondents that under Rule 5 [now r. 4] of the Federal Court Rules resort may be hadto provincial practice and procedure, here the practice and procedure in Manitoba, to cover what is alleged to be a gap in the FederalCourt Rules. We do not construe those Rules as revealing a gap in this case, and, in any event, resort to Rule 5 cannot be had to effectamendments to Rules... [18] The Federal Court has given r. 4 a highly restrictive

interpretation. It has been held that rule 4 “is a rule of last resort andshould not be invoked unless all other avenues have been exhausted”: Khadr v Canada (Minister of Foreign Affairs), 2004 FC 1393 atpara. 12; Nature’s Path Foods Inc. v Country Fresh Enterprises Inc., 2007 FC 116 at para. 4; Charkaoui (Re), 2009 FC 342 at para.32.

Further, that rule cannot be used to create new substantive rights, such as a right of appeal, “out of thin air”: Stk'emlupsemc teSecwepemc Nation v Canada (Attorney General), 2019 FCA 239 at paras. 22-24; Lill v Canada (Attorney General), 2020 FC 551 atpara. 54. [19] The courts of Ontario have also taken a restrictive approach to the gap rule contained in r. 1.04(2) of the Rules of CivilProcedure, RRO 1990, Reg. 194, which applies “[w]here matters are not provided for in the rules”.

In Crombie v The King, (ON CA), [1923] 2 D.L.R. 542 (Ont CA), Masten J., said at p. 77: So far as I can ascertain, the Rule [now Rule 1.04(2)] has been applied only in matters of minor importance, and never so as to confer anew remedy hitherto unknown to our law ... [20] The above comments from Crombie were interpreted and applied in Andreacchi v Perruccio, (ON CA),[1972] 1 OR 508 (CA), where Arnup J.A. wrote: It was submitted to us that in making this statement [in Crombie] Masten, J., did not intend to lay down a principle of broad application,including as part thereof that only matters of minor importance were to be dealt with by analogy under the aegis of Rule 1 [now Rule1.04(2)].

In our view, the statement has broader application, and constitutes an affirmation of the principle that Rule 1 is to be appliedonly in matters of minor importance; in our view the creation of what Masten, J., called “a new remedy hitherto unknown to our law” isdefinitely not such a matter. [21] A restrictive approach to the Ontario gap rule was also adopted in Société Sepic S.A. v AGA Stone Ltd. (1995), (ON CA), 21 OR (3d) 542 (CA) at para. 11, where Osborne J.A. held that that rule did not confer an authority on the Court to order

that security for costs be provided on a motion since “the rules committee could not have been unaware of its exclusion of motions fromthe security for costs provisions contained in the rules”.

Instead, he recommended that the Rules Committee consider the issue. [22] In Jhanji v Law Society of Manitoba, 2022 MBCA 78 at para. 17, Mainella J.A. addressed the gap rule contained in r. 36 ofthe The Court of Appeal Act, CCSM c C240, which encompasses “all matters not expressly provided for in this Act or the rules”, andheld that that rule does not apply where a rule already provides for a practice and procedure on a particular matter: The difficulty for the appellant is, according to the plain meaning of the legislation, the gap rule in

section 36 only applies to situations“not expressly provided for” in the CA Act or CA Rules. Analogy to the practice and procedure in the Court of King’s Bench is notpermissible where either the CA Act or the CA Rules expressly provide for a practice and procedure to be followed in this Court on aparticular matter (see 2272539 Manitoba Ltd v Manitoba (Liquor Control Commission) (1996), (MB CA), 139 DLR(4th) 9 at 12 (Man CA)).

Because there is a specific rule -- r 30 of the CA Rules -- governing the filing of further written submissions inthis Court, such as here in the form of a reply, analogy to the QB Rules is not available to the appellant. He requires leave to file thefurther argument. [23] Although the aforementioned case authorities address rules containing language somewhat different from that of r. 2(1), I donot detect any differences which would justify a more expansive

interpretation of the Alberta surrogate rule. Generally speaking then, thepurpose of r. 2(1) is to ensure that the court is empowered to give effect to substantive rights, notwithstanding a deficiency in the rules. Itdoes not automatically incorporate the entirety of the Alberta Rules of Court. Where a particular subject matter is already addressed bythe Surrogate Rules, r. 2(1) is inapplicable. Rule 2(1) cannot be used to create new substantive rights, and it cannot be used to effectivelyamend another rule. IV.

Application to the Present Case [24] Applying the above principles to the present case, I conclude that the subject of service upon self-represented litigants in non-contentious matters is “otherwise dealt with under these Rules”. More specifically, it is dealt with under r. 26(3). Consequently, r. 2(1) ofthe Surrogate Rules does not incorporate, or otherwise permit resort to, the service rules of the Alberta Rules of Court, such as r. 11.18. [25] Although the language of r. 26(3) is permissive, and although it only permits three methods of service, the fact remains thatservice is “dealt with” under that rule.

That rule permits three methods of service. Gap rules like r. 2(1) do not empower the court toamend existing rules, such as by adding a fourth permissible method of service. [26] I therefore conclude that r. 11.18 of the Alberta Rules of Court does not apply to service of a notice of application for a grantunder

Part 1 of the Surrogate Rules. Unlike the situation addressed by Summers J. in Halliday, proof that documents were sent by email,together with a written acknowledgment by the self-represented litigant being served, does not demonstrate good service without an ordervalidating service. V. Validation of Service [27] The court has the authority to cure any non-compliance with the applicable rules where no party has been prejudiced by theirregularity.

In addition to the provincial superior court’s inherent jurisdiction, that authority is conferred by r. 2(2) of the SurrogateRules: 2(2) The court may vary any rule in any case where the court decides it is appropriate to do so. [28] The court’s inherent authority to cure irregularities includes the authority to deem service to be good and sufficient.

The Courtof Appeal has held that service is effective so long as the documents came to the attention of the party being served in a context thatmade it clear that rights were being engaged: Sandhu v MEG Place LP Investment Corp., 2012 ABCA 266 at paras. 20, 23; ZahmolProperties Ltd. v. Calgary (City), 2012 ABCA 89 at paras. 14-18. [29] Although service in the present case was not effected in accordance with the applicable rules, the documents came to theattention of the beneficiaries in a context that made it clear that legal rights were being engaged.

The evidence confirms that thedocuments were emailed to the beneficiaries from the office of the Applicant’s legal counsel, and the beneficiaries each provided awritten acknowledgment of receipt. [30] Service of the Applicant’s notices and their accompanying documents upon the beneficiaries is, therefore, deemed to be goodand sufficient. VI.

Conclusion [31] In conclusion, I deem that service of the Applicant’s notices and their accompanying documents upon the beneficiaries isgood and sufficient, and I direct the clerk of the court to accept the affidavits of service as sworn by Alyssa Baker on February 7, 2023,for filing. Heard on the 23rd day of March, 2023. Dated at Edmonton, Alberta this 6th day of April, 2023.

Nathan J. Whitling J.C.K.B.A. Appearances : Victoria A. Jones De Villars Jones for the Applicant No Appearance for the Beneficiaries