LESLIE DAVIDNER APPLICANT - v. –, 2023 SKKB 25

KING’S BENCH FOR SASKATCHEWAN 2023 SKKB 25 Date: 2023 02 02 Docket: KBG-PA-00172-2022 Judicial Centre: Prince Albert BETWEEN: LESLIE DAVIDNER APPLICANT - and – LEAH TOWILL in her personal capacity, her capacity as Personal and Property Attorney of JEAN VIVIAN DAVIDNER, deceased, and as Executrix of the ESTATE OF JEAN VIVIAN DAVIDNER RESPONDENT Counsel: Paige E. Van de Sype for the Applicant Ron Parchomchuk, K.C. for the Respondent ___________________________________________________________________________ DECISION MORRALL J.

February 2, 2023 ___________________________________________________________________________ Introduction [ 1 ] It is clear to the court that the siblings who are the Applicant and Respondent in this originating application relating to an estate matter are in a difficult stage of their relationship, to put it mildly. [ 2 ] The Applicant has requested a number of remedies pursuant to an originating application that was originally issued in Saskatoon on October 25, 2022. The matter has since been transferred to Prince Albert.

Further, an order consented to on December 14, 2022 and issued December 20, 2022 has addressed the relief requested in paragraph four of the originating application. Therefore, a determination only need be made with respect to the remaining paragraphs. [ 3 ] The request for relief from the Respondent is therefore as follows: 1) An accounting from the Respondent in her capacity as power of attorney for Jean Davidner from November 17, 2016 until March 2, 2021 (this time being amended in the briefs of law) exclusive of the time period between September 19, 2019 to August 21, 2020;

2) An order directing the Respondent as the executrix of the estate of Jean Davidner to perform an interim accounting from March 2, 2021 until the date of this judgment within 30 days; 3) An order that the Respondent provide to the Applicant an accompanying affidavit that explains and appends true copies of the statements and records to support that accounting as power of attorney and executrix, as sought in paragraphs one and two including copies of banking and investment statements, deposited and withdrawn cheques from Jean Davidner’s accounts, supporting invoices and receipts, and evidence of the collection of debts; 4) Costs on a solicitor and client basis. [ 4 ] The body of material to consider in this matter includes the originating application issued on October 25, 2022, the affidavit of Leslie Davidner sworn October 24, 2022, a draft order filed October 25, 2022, the affidavit of Leah Towill sworn December 9, 2022, the affidavit of Leah Towill sworn December 16, 2022, the brief of law filed by the Applicant dated December 16, 2022, the brief of law filed by the Applicant dated January 9, 2023, along with the arguments made during chambers. [ 5 ] The affidavit of Leah Towill sworn December 9, 2022 and the brief of law dated January 9, 2023 were filed late in this matter.

Given the adjournment as a result of the illness suffered by counsel for the Respondent and the relative conciseness of the second brief of law of the Applicant, I have determined that no prejudice has been occasioned on either party and therefore there will be no costs arising from any late filing of materials. Affidavit Evidence [ 6 ] I will provide an overview of the evidence stated in the various affidavits and will limit the reproduction of the material to the salient facts.

Although all statements and exhibits have been considered, I note that no party has applied to cross examine any affiant in this matter. [ 7 ] The Applicant deposes that he is the son of the deceased Jean Davidner and the sibling of the Respondent. His mother died on March 2, 2021 and all three of her siblings were equal residual beneficiaries according to her Will.

The Respondent obtained letters of probate for the estate on July 13, 2021. [ 8 ] On September 1, 2021 the Applicant’s counsel received a memory stick referred to as “POA accounting” that accounted for the Respondent’s actions as Power of Attorney for Jean Davidner between September 19, 2019 and August 21, 2020. [ 9 ] On May 18, 2022, he states that the Respondent advised the Applicant’s counsel that she had been acting as his mother’s sole power of attorney from 2017 onwards although he did not have any specific document to that effect.

He then made various inquiries related to an accounting by the Respondent for the time period from August 21, 2020 to March 2, 2021 which he states “have been provided piecemeal or ignored”.

He avers he has not been provided a fulsome accounting from August 21, 2020 to March 2, 2021 and given that he was unaware that the Respondent was acting under a power of attorney prior to September 19, 2021, now requests an accounting from November 17, 2016 to September 18, 2021 in the manner suggested in paragraph three of his originating application (although the September 18, 2021 date has since been amended in his briefs of law to March 2, 2021). [ 10 ] The Office of the Public Guardian and Trustee [PGT] advised the Applicant’s counsel that they had received an interim and final accounting from the Respondent for September 19, 2019 to March 2, 2021 and had closed their file.

On July 11, 2022 and August 22, 2022, the Applicant through his counsel requested that the PGT obtain an accounting from November 17, 2016 to September 18, 2021 but the PGT has not directed any further accounting. [ 11 ] He also requested an interim accounting from the Respondent in her capacity as executrix of his mother’s estate but has not yet received any documentation. [ 12 ] He then relates several reasons as a result of personal experiences why he believes that his mother’s mental capacity continued to diminish from 2016 onwards. [ 13 ] In relation to incidents of concern with respect to the administration of the power of attorney by the Respondent, he remembers in 2017 his mother telling him he was removed as a power of attorney.

He believed this was as a result of an incident concerning discussions he had with the Respondent as a result of the Respondent’s son’s company repairing his mother’s roof for $20,000 above the quote the Applicant received from another company. [ 14 ] He also raises concerns as a result of promissory notes of $32,000 and $49,000 given to the Respondent’s children on January of 2019 that were not signed by his mother.

He believes that the Respondent has not taken reasonable steps to collect those debts on behalf of the estate. [ 15 ] Thereafter, he raises concerns with respect to various loans that were advanced to his mother, one of the Respondent’s children and to one of the Respondent’s child’s companies. [ 16 ] The Respondent opposes all the Applicant’s remaining requests and asks for his application to be dismissed with solicitor and client costs in her favour. [ 17 ] She states that her first affidavit sworn December 9, 2022 is provided in her capacity as executrix of the estate of

Jean Davidner and that her second affidavit sworn December 16, 2022 is provided in her personal capacity and in her capacity as the former personal and property attorney of Jean Davidner. [ 18 ] In the affidavit sworn December 9, 2022, she states that the Applicant has made numerous requests with respect to an interim accounting for the estate along with inquiries into the debts owed by her children to the estate.

An interim accounting has not been provided as she anticipates distribution of the assets shortly and will provide an accounting at that point so as to avoid duplication and minimize legal fees. [ 19 ] In relation to the debts owed by her children to the estate, she indicates that her mother’s solicitor was Randi Arnot at the time the debts were incurred and provided a letter delivered by Ms. Arnot with the promissory notes attached on May 13, 2021.

These promissory notes were those from January of 2019 that concerned the Applicant in his material. [ 20 ] In relation to the collection measures for the above debts, she advises that the Applicant was advised that she and their brother Mark would be forgiving the debt through their beneficial portions of the estate.

She notes that on June 8, 2022, the Applicant’s solicitor confirmed that the Applicant was agreeable to receiving his share in relation to this debt from the Respondent and/or Mark’s share of the estate. [ 21 ] In her affidavit sworn December 16, 2022, the Respondent states that she denies everything in the Applicant’s affidavit except where specifically admitted and appends the five powers of attorney [POA] she believed her mother prepared during her lifetime: 1) Enduring POA dated March 26, 2009; 2) Specific POA dated August 22, 2016; 3) Enduring POA dated November 17, 2016; 4) Specific POA dated April 23, 2017; 5) Enduring POA dated September 29, 2017. [ 22 ] The Respondent avers she was aware of the POA dated March 26, 2009 as she signed it.

However, she had not seen the August 22, 2016, November 17, 2016 and April 23, 2017 POA until 2020 while she was responding to estate litigation though she had been made aware previously that she was granted these appointments by her mother. [ 23 ] Pursuant to the POA dated August 22, 2016, the Respondent indicates she made deposits into her mother’s chequing accounts and provides copies of those bank statements from CIBC in her affidavit from August 22, 2016 to September 19, 2019. [ 24 ] With respect to the POA dated November 17, 2016, the Respondent indicates she was advised by her present counsel that this contingent POA revoked all prior POAs and would only come into effect when her mother’s doctor advised that her mother was not competent to manage her affairs.

She was not aware of the revocation and can also advise that the doctor did not advise of her mother’s incompetency until October 2019. [ 25 ] With respect to the POA dated September 29, 2017, she states she became aware of this appointment sometime in 2019 and saw it for the first time in the office of Ms. Arnot on September 19, 2019. Further, she did not exercise her duties under that POA until that date.

She objects to having to produce any material from November 17, 2016 until September 19, 2019 as she did not exercise any of the POA duties related to the POA of September 29, 2017 until September 19, 2019. [ 26 ] She states she provided a final accounting of the POA of September 29, 2017 to PGT on June 6, 2022 for the period of September 19, 2019 to March 2, 2021 and has received no objection from them with respect to the information provided.

This material was provided to the Applicant in September of 2021. [ 27 ] She states that the complaint about the roofing costs was raised in two prior court proceedings which were settled pursuant to the minutes of settlement dated August 19, 2021. [ 28 ] With respect to the debts owed by her children, she reiterates what she stated on the issue in her affidavit on the subject sworn December 9, 2022. She further avers that the promissory notes issue and the issue related to loans advanced to her children were raised by the Applicant were also dealt with pursuant to the minutes of settlement dated August 19, 2021.

Issues [ 29 ] While there is some conflicting testimony between the Applicant’s and Respondent’s affidavits, I note the

following direction from the Saskatchewan Court of Appeal in Scott v Seier Estate , 2016 SKCA 76 , [2016] 11 WWR 270 where the court stated: 17 Not having met with success before the judge, Ms. Scott now complains there were sufficient unresolvable conflicts in the affidavit evidence such that the judge should never have determined her claim without holding a viva voce hearing or a trial on its merits. But, critically, at no point during these proceedings did Ms.

Scott ask the judge to adjourn either matter, to order the attendance of an affiant for cross-examination (Rule 3-54), for permission to adduce viva voce evidence (Rule 3-55(e)) or to set her matter down for trial. She says her counsel suggested in oral argument that if the judge could not resolve inconsistencies in the evidence he had to order a trial. But, it is clear the judge did not find any unresolvable inconsistences in the relevant evidence — and nor do I. In fact, the judge largely accepted Ms. Scott's evidence. The judge was, in short, in a position to determine the merits of Ms.

Scott's originating application in a

summary manner on the basis of the evidence that was before him. 18 An originating application plainly asks the court to determine the merits of the matter it raises in a

summary way on the basis of affidavit evidence. While The Queen's Bench Rules and judicial authority permit the court to consider viva voce evidence or to order a trial of an issue, it very clearly remained open to the judge to determine the issues before him in a

summary manner. I find no error in his decision to do that. [ 30 ] In this matter neither party has requested an adjournment, asked for the attendance of an affiant for cross- examination or permission to adduce viva voce evidence. Having regard to the affidavit evidence before me, I find that I am able to resolve any inconsistency and determine the issues in a

summary manner. Further, given Rule 3-49(1)(

b) of The Queen’s Bench Rules , it is clearly contemplated by the legislation that this type of application can be resolved without a full-blown trial and the attendant costs in money and time. [ 31 ] The questions at issue in this matter include: 1) Does the court have jurisdiction to make any of the accounting orders sought by the Applicant? 2) Should the court exercise their discretion to make the accounting orders for the time periods requested and, if so, in what format should the accounting be?

The Legislation [ 32 ] The following sections included in The Powers of Attorney Act , 2002 , SS 2002, c P-20.3 [ Act ] are apposite in this matter: Accounting 18(1) On the request of the grantor, the attorney shall provide an accounting in the prescribed form to the grantor.

(2) If the grantor lacks capacity, an accounting in the prescribed form may be requested: (

a) of a property attorney by: (

i) a person named by the grantor in the enduring power of attorney; (ii) if no person is named pursuant to subclause (i), an adult family member of the grantor; or (iii) a personal attorney, if any; and (

b) of a personal attorney by: (

i) a person named by the grantor in the enduring power of attorney; (ii) if no person is named pursuant to subclause (i), an adult family member of the grantor; or (iii) a property attorney, if any.

(3) If the grantor or a person mentioned in subsection (2) has been unable to obtain an accounting from the attorney, he or she may request the public guardian and trustee to direct the attorney to provide an accounting.

(4) Any interested person may request the public guardian and trustee to direct the attorney to provide an accounting.

(4.1) The public guardian and trustee may carry out an investigation to ensure the accuracy of an accounting.

(5) The public guardian and trustee may direct the attorney to provide an accounting in the prescribed form if: (

a) on receipt of a request pursuant to subsection (3) or (4), the public guardian and trustee considers it appropriate to do so; or (

b) the public guardian and trustee considers it to be necessary and in the public interest to do so.

(6) If the public guardian and trustee does not direct the attorney to provide an accounting pursuant to subsection (5), or the attorney does

not provide an accounting as directed by the public guardian and trustee, the court may direct the attorney to provide an accounting to the court or to the public guardian and trustee, or make an order that the attorney’s authority under the enduring power of attorney is terminated, on application of: (

a) the grantor; (

b) any person mentioned in subsection (2) or (4); or (

c) the public guardian and trustee. Final accounting 18.1(1) Subject to subsection (2), every attorney acting pursuant to an enduring power of attorney shall, on the termination of the authority of the attorney: (

a) provide a final accounting, in the prescribed form, of the decisions made, actions taken and consents given respecting the grantor to: (

i) a person named by the grantor in the enduring power of attorney; (ii) if no person is named pursuant to subclause (i), an adult family member of the grantor; (iii) a decision-maker appointed pursuant to The Adult Guardianship and Co-decision-making Act, if any; (iv) a property guardian appointed pursuant to The Missing Persons and Presumption of Death Act, if any; (

v) if the grantor is deceased, the executor or administrator of the grantor’s estate; and (vi) the public guardian and trustee; and (

b) verify by affidavit the final accounting required pursuant to this subsection.

(2) If the grantor is deceased: (

a) a final accounting is not required when the attorney is the sole beneficiary of the grantor’s estate; and (

b) a beneficiary of the grantor’s estate, other than a person mentioned in subsection (1), may request a final accounting.

(3) A final accounting required pursuant to this

section must be provided within six months after the date on which the attorney’s authority terminates.

(4) The public guardian and trustee may carry out an investigation to ensure the accuracy of the final accounting.

(5) If an attorney does not provide a final accounting pursuant to subsection (1) or clause (2)(b), any person listed in clause (1)(

a) or (2) (

b) may apply to the court for an order directing the attorney to provide that final accounting to the persons entitled to it pursuant to this section. … Application to court 20 The public guardian and trustee or any other interested person may apply to the court for advice or directions with respect to an enduring power of attorney. [ 33 ]

Section 55 of The Trustee Act , 2009 , SS 2009, c T-23.01 must also be considered in ordering an accounting in these circumstances. It states as follows: Accounting 55(1) On the request of a beneficiary of the trust, or the beneficiary’s property attorney or property guardian, a trustee shall provide an accounting to the beneficiary.

(2) If a beneficiary of the trust, or the beneficiary’s property attorney or property guardian, has been unable to obtain an accounting from the trustee in accordance with subsection (1),the beneficiary of the trust, or the beneficiary’s property attorney or property guardian, may apply to the court for an order directing the trustee to provide an accounting to the court or to the beneficiary.

(3) Notwithstanding anything to the contrary in the terms of a trust, if a beneficiary of the trust or other interested person has requested information concerning the accounts of a trustee, and the trustee has refused to comply with the request in a reasonable and timely manner, the court may order the trustee to pass accounts in accordance with

section 54. The Law [ 34 ] In Tinline v Larente , 2013 SKQB 167 , 420 Sask R 81 [ Tinline ], the court provided a thorough review of some of the various legislative and legal factors that need to be reviewed in order for a court to make a determination about whether to require an accounting in a similar fact situation to the case at bar. The court stated as follows: [7] The respondent takes the position that no accounting is called for. The Enduring Power of Attorney at issue granted her the

following authority: (

a) I give my personal and property attorney(

s) general authority respecting all of my personal affairs and all of my property andfinancial affairs. (...

The authority with respect to financial affairs includes matters relating to all of your securities, contracts of insurance, pensions, non-testamentary trusts, retirement savings plans, registered retirement income funds, annuities, and other like deposits and investments.) [8] This grant of authority, however, did not come into effect immediately, but only on the following condition: Upon my physical or mental inability to manage my affairs. (Emphasis in Original) [9] The respondent deposes that she exercised her powers as attorney on only three occasions.

That is, she assisted Rodney Tinline tochange his coverage pursuant to a group medical plan, transfer a motor vehicle to the applicant, and obtain a criminal record check torenew his taxi badge. She says that she did these things for Rodney as he was so exhausted by the health problems which ultimately ledto his death that he was unable to do so himself. There is no evidence that she otherwise exercised her authority as his attorney, althoughshe did have a debit card which she used to purchase groceries and other items for Rodney as his health declined.

She says Rodneycarefully monitored those purchases, and that he had the capacity to make, and made his own decisions until very shortly before hisdeath. … [12] I agree with the respondent’s submission that the court does not have authority under s. 18 of The Powers of Attorney Act, 2002 todirect the respondent to provide an accounting in relation to the administration of the estate.

Section 19 of the Act provides that theauthority of an attorney under an Enduring Power of Attorney is terminated on the death of the grantor, and there is no evidence therespondent has acted as Rodney’s attorney since the date of his death. She accordingly has no obligation to account in that capacity forher actions as executrix. … [19] The court’s authority to order an accounting applies to an executrix.

In my opinion, it also applies to an attorney, depending on thenature of the authority that is granted by the power of attorney and whether any condition precedent to the exercise of that authority — generally being incapacity — has been met. I concur with the following comment by R.A. Graesser J. in Taubner Estate (Re), 2010ABQB 60, [2010] 9 W.W.R. 121: 243 A power of attorney is a unique power that embodies the law of agency, borrows from the law of contract, and adopts the law offiduciary obligations. M.

Jasmone Sweatman, Guide to Power of Attorney, (Aurora: Canada Law Book, 2002) states: “although thefiduciary duties of agents, attorneys, and trustees may vary in intensity, the duties are essentially the same” (at 6). 244 The Manitoba Court of Queen's Bench in Budgell v. Hartlet Estate, 2008 MBQB 202 (Man. Master), held at para. 27, “[t]hereappears to be a higher duty on an attorney acting under an enduring power of attorney following the event of the donor's incapacity.

Theattorney is no longer acting strictly as agent but as trustee".” 245 An attorney acting under a POA is clearly in a fiduciary relationship that imposes the obligations and duties of a trustee upon theattorney: Brown v. Lefebvre, 2007 ABQB 195 (Alta. Q.B.); Ericksen, Re, 2008 ABQB 587 (Alta. Q.B.); Hammond Estate,Re (1999), (NL SC), 173 Nfld. & P.E.I.R. 240 (Nfld. T.D.)(Court name); Lander v. Lyall, 2006 MBQB 170 (Man.Q.B.); Leung Estate v. Leung (2001), 38 E.T.R. (2d) 226 (Ont. S.C.J.); Egli (Committe of) v. Egli, 2004 BCSC529 (B.C.S.C.); McMullen v. McMullen, 2006 BCSC 1656 (B.C.S.C.). …

[21] The fact that the court has the authority to grant an order for an accounting does not mean I must grant that order. That is so notwithstanding the language of s. 55(1) of The Trustee Act , which states that the trustee shall provide an accounting on request. The learned authors of Waters’, supra , make the point in the following terms (at pps. 1065-66): ... As far as asking the court for an accounting is concerned, none of these persons has an absolute right.

As we have seen, harassing the trustee is vexatious litigation, and whether the court will order an accounting depends entirely upon the court’s discretion and the circumstances of the case. Only where the trustee can be shown to be in default of his duties will this normally be given.... See also Liddell v. Deacou, [1873] O.J. No 148 (QL) (Ont. Ct. Ch.) . 22 Although it is my view that it is not always necessary to prove that there has been a default by the trustee before an accounting is ordered, an accounting should not be ordered if no cause is shown.

In this case, the applicant has failed to meet that burden. He has asked for an order that the respondent account despite the fact that there is no evidence she exercised her authority except to carry out very limited and specific instructions from the grantor. There is no evidence she exercised her authority after he became incompetent. A property attorney should not be required to provide an accounting for a period when her power was neither effective nor exercised, and in the absence of evidence that she had exercised her authority other than as instructed and in what was essentially an agency capacity.

I note on this point the reasoning in Fair v Campbell Estate (2002), 3 E.T.R. (3d) 67 , [2002] O.J. No. 5926 (Ont. S.C.J.) , at paras. 29 - 33 . 23 Similarly, there is insufficient evidence that the respondent has failed to carry out her duties as executrix. The applicant deposes that he believes the Statement of Property grossly undervalues the estate. However, he does not suggest that the ongoing payments of $3,500 a month for the taxi business have not been properly credited to the estate.

He says that the Statement of Property does not fully list his father's “physical assets”, but identifies only antique furniture and computer equipment. Her evidence as to how those items were dealt with was not disputed by the applicant. The executrix has also explained her management of Rodney's bank accounts. 24 Given the lack of evidence of misconduct, the relatively brief period since the issuance of the Letters Probate, and the evidence that the applicant refused to provide financial records to the respondent, I am not prepared to order an accounting at this time.

That said, it is common practice for executrix to provide an interim report to beneficiaries. It is difficult to understand why the executrix would not be willing to provide such a report to a sole beneficiary in relation to what appears to be a simple estate, unless she expects to conclude her administration and thus report in the very near future. [ 35 ] The decision of this court in Ostlund v Dolan , 2016 SKQB 69 , [2016] 7 WWR 804 [ Ostlund ] provides some updated legal considerations given the introduction of s. 18.1 in the Act after the decision in Tinline .

In Ostlund , the court states as follows: [51] The Tinline case, while an informative decision, is of limited assistance to the present facts. Specifically, at the time Tinline was decided, The Powers of Attorney Act, 2002 , had not yet been amended to include s. 18.1 . Whereas s. 18 of The Powers of Attorney Act, 2002 dealt with a request for an accounting while the Power of Attorney was still existing, s. 18.1 addressed the situation where the authority of the attorney had terminated. … [52] Unlike Tinline , recourse to The Trustee Act, 2009 on the present facts is not required.

Rita Kusch’s authority to act as Olive Muller’s attorney terminated when Olive passed away on July 19, 2013. Pursuant to s. 18.1 of The Powers of Attorney Act, 2002 , Mr. Dolan, as executor of Olive’s estate, has requested a final accounting of the time period that the Enduring Power of Attorney was granted by Olive to Rita to the date that she passed away. No final accounting was provided within the six-month timeframe stipulated in s. 18.1(3) of The Powers of Attorney Act, 2002 , and has still not been provided as of today’s date.

Complicating matters is the fact that Rita herself passed away in March 2014, some eight months after her sister, Olive. [53] Despite her passing, I am satisfied that this requirement to account has not been extinguished. One of the general duties that devolves in law to an executor is to meet all uncompleted obligations of the deceased. (See: James MacKenzie, Feeney’s Canadian Law of Will, looseleaf (Rel 59-Dec/2015) 4th ed (Toronto: LexisNexis, 2000) at 8-11.

Thus, Rita’s duty to provide a final accounting falls to the executors of her estate. … [55] Given the similarity in wording in s. 18.1 of The Powers of Attorney Act, 2002 and s. 55 of The Trustee Act, 2009 and applying this same reasoning as Barrington-Foote J., I am satisfied an applicant must show cause why an accounting should be ordered. Here, Brian Dolan’s affidavit evidence is that he was concerned that James Kusch may have been utilizing both Rita’s assets and Olive’s assets for his own personal benefit.

He states that he had no idea whether or not Rita or James were acting in Olive’s best interests or for their own interests and that he suspected James may have been using the Power of Attorney for his own personal benefit. He said he believed that

James may have utilized Olive’s assets for his benefit or Rita’s benefit by placing Olive’s funds in Rita’s account. However, Mr. Dolan has provided no evidence substantiating these bald assertions. … [59] I am not prepared to make an order that Jan Ostlund or James Kusch provide an accounting of their actions as Power of Attorney for Rita Kusch to the estate of Olive Muller.

Jan Ostlund never made any decisions for Rita Kusch as her attorney and while James Kusch may have assisted his mother in having the properties listed or sold, the evidence before me is that Rita made the decisions regarding the properties, she was competent to do so at the time that she made those decisions and she signed the appropriate documents for the properties to be sold. As has been pointed out in counsel’s material, s. 14(1) of The Powers of Attorney Act, 2002 , specifically states that an attorney cannot delegate the authority granted under an Enduring Power of Attorney unless it states otherwise.

In this case, the Enduring Power of Attorney signed by Olive appointing Rita says nothing about Rita being able to delegate her authority to another. Therefore neither Jan Ostlund nor James Kusch could have made decisions on Olive’s behalf as the Power of Attorney for Rita Kusch. [60] Even if I am wrong on this reasoning, the applicant in this case is the estate of Olive Muller by its executor. I have no authority to grant an accounting to Olive’s estate as the estate is not a beneficiary of Rita’s estate.

Moreover, the estate does not fall within one of the listed categories of persons that can demand an accounting pursuant to s. 18.1 of The Powers of Attorney Act, 2002 . [ 36 ] This decision demonstrates that the wording related to accounting under The Trustee Act, 2009 and the Act are similar and therefore the legal principles for ordering an accounting will be similar as well.

The decision is also an example of the court not ordering an accounting when there is no evidentiary foundation that an individual was actively acting as a POA. [ 37 ] The decision of this court in Armstrong v Armstrong , 2016 SKQB 271 [ Armstrong ] is an example of a case where the court found that certain issues raised red flags that necessitated an accounting. The court noted the concerns as follows: [14] Wayne’s affidavit evidence is that he is concerned that Darrell may have utilized the deceased’s assets for his personal benefit.

He gives various examples of occurrences which led him to have concerns that Darrell was not acting in their mother’s best interest, including making numerous cash withdrawals from her accounts totalling upwards of $40,000 in unexplained missing funds, applying for a CHIP Reverse Mortgage when at the time Helen was in a care home, and Wayne further asserts Darrell had done unnecessary home improvements which result in a benefit for him alone. [15] As noted, Darrell did provide an accounting upon an earlier request; however, this package largely failed to conform to the prescribed form under the Act and did not contain a complete accounting of the actions and expenditures therein. [16] In applications of this type the Court should upon review of the material filed determine if there have been actions taken or expenses incurred which raise flags of concern.

If the impugned actions taken are significant, in the context of the whole of the estate, then ordering an accounting is a reasonable juridical step to take. [17] In this case, the $40,000 cash withdrawal (in $500 installments), the reverse mortgage at an advanced age and the allegation concerning unnecessary home improvements all combine to raise flags of concern. [18] On the ordinary meaning of the words in s. 18.1, I find that a final accounting should be ordered upon request of an entitled person.

However, even if this is not automatically so, and taking regard of the reasoning set out in Kusch Estate [ Kusch Estate v Muller Estate , 2016 SKQB 69 , [2016] 7 WWR 804 ] , I am satisfied that the applicants have shown cause for a final accounting in the circumstances. However, my orders respecting the specifics of the accounting will differ slightly from those of the applicants. [19] As to the period of time to be included in this accounting, Wayne’s affidavit alleges that Darrell acted upon a 2004 power of attorney prior to being appointed as Helen’s sole attorney in 2011.

Proof of this earlier appointment was not filed. Darrell’s affidavit evidence is that no such appointment existed, nor did he act upon such prior to 2011. The final accounting will therefore be for the period of 2011 to 2014, being the period in which Darrell acted as Helen’s sole power of attorney. [ 38 ] However, the last word on the power of the court to order an accounting under the legislation belongs to the Saskatchewan Court of Appeal.

In Bryant Estate v Stuart , 2021 SKCA 54 [ Bryant Estate ], it states as follows: [33] In broad terms, it is entirely appropriate to understand s. 55(1) as imposing an unavoidable obligation on a trustee to provide an accounting. That kind of duty is consistent with, and reflects, the fundamental nature of the relationship between a beneficiary and a trustee. Being able to hold a trustee to account ensures that the trustee discharges its fiduciary obligations. Justice Brown referred to all of this in Valard Construction Ltd. v Bird Construction Co . , 2018 SCC 8 , [2018] 1 SCR 224 :

[17] Because a trust divides legal and beneficial title to property between a trustee and a beneficiary, respectively, the “hallmark” characteristic of a trust is the fiduciary relationship existing between the trustee and the beneficiary, by which the trustee is to hold the trust property solely for the beneficiary’s enjoyment. As a matter of law, this fiduciary relationship, in turn, impresses the office of trustee with certain duties. In particular, three duties have been recognized in Canadian law as fundamental.

First, a trustee must act honestly and with that level of skill and prudence which would be expected of the reasonable person of business administering his or her own affairs. Secondly, a trustee cannot delegate the office to another. And thirdly, a trustee cannot profit personally from its dealings with the trust property or with the beneficiaries of the trust. [18] Correspondingly, the beneficiary of a trust has a right to hold the trustee to account for its administration of the trust property and to enforce the terms of the trust.

Absent such a right, both the trustee’s obligation to act in accordance with its fiduciary duty and the terms of the trust itself would be substantially unenforceable.

In effect, the trustee would hold beneficial as well as legal ownership of the trust property — which would, of course, be contrary to the division of legal and beneficial ownership upon which the trust relationship is premised. (Footnotes omitted) [34] None of this means, of course, that s. 55 of The Trustee Act can or should be read as requiring that a beneficiary who makes an unreasonable or vexatious request for an accounting must be accommodated by a trustee by virtue of s. 55(1) or that a judge must make an order to oblige a trustee to act on such a request when faced with an application pursuant to s. 55(2).

Nevertheless, an accounting must not be lightly denied. The root fact, as per the clear language of s. 55(1), is that a beneficiary is entitled to an accounting as a matter of course on making a reasonable request. He or she has no obligation to show cause or present a justification for that request. This is the fundamental starting point of any proceeding pursuant to s. 55(2). [35] I would not presume, in this decision, to attempt to identify all of the circumstances that might make a request for an accounting unreasonable, but it may be helpful to mention three.

First, a request that is made too closely on the heels of another accounting might be unreasonable on the basis that not enough time has passed, or the trustee has not had enough opportunity to deal with the trust property, to warrant an additional accounting. Second, the state of affairs concerning the administration of a trust might make a request for an accounting unreasonable. Thus, for example, if the administration of an estate is on the very brink of being completed, it might be unreasonable to request an accounting until matters have been finally wrapped up.

Third, at some point in time, it may become simply too late in the game for a beneficiary to properly expect an order requiring an accounting. This might be the case, for instance, if a request for an accounting is made many years after the time by which it might have been expected that the administration of an estate would have been completed. In other words, the timeliness of a request for an accounting might be a factor to be considered in deciding whether the request is unreasonable.

Every determination of reasonableness will, of course, always be fact and context specific. [36] In the result, therefore, and contrary to Dorothy’s position, a beneficiary has no obligation under s. 55 of The Trustee Act to show cause, in the sense of establishing negligence or possible wrongdoing by the trustee, before an accounting can or should be ordered.

The right to obtain an accounting flows not from the fact of demonstrated or suspected wrongdoing by the trustee, or other such concerns, but from the nature of the trustee–beneficiary relationship itself, i.e., a beneficiary is entitled to an accounting simply by virtue of being a beneficiary. [37] There has been little judicial consideration of s. 55 of The Trustee Act . The leading Queen’s Bench decision in this area appears to be Tinline v Larente , 2013 SKQB 167 , 420 Sask R 81 [ Tinline ] .

In that case, a Chambers judge dealt with an application for an order requiring the executor of an estate to provide an accounting. The executor had also been the personal and property attorney of the testator for a period of time during the testator’s life. The application was based on s. 18 of The Powers of Attorney Act, 2002 , SS 2002, c P- 20.3 , The Queen’s Bench Rules , s. 55 of The Trustee Act , and the inherent jurisdiction of the Court of Queen’s Bench.

In dismissing the application, the Chambers judge observed that there was no reason that the estate could not be concluded and a final accounting provided in the near future.

If the estate was not so concluded, or a satisfactory interim report provided, the Chambers judge said the matter could be brought back before him. … [39] I agree with Tinline to the extent it rejects the idea that the obligation on a trustee to provide an accounting as per s. 55(1) is absolute and to the extent it rejects the notion that a judge faced with an application pursuant to s. 55(2) must reflexively make an order for an accounting if a trustee has failed to respond to a request for same.

The Legislature cannot be taken to have intended that a request for an accounting, no matter how ill-timed or vexatious, must be honoured by a trustee or enforced by court order. However, as indicated, it is not necessary for a beneficiary to show cause as a precondition to obtaining an order pursuant to s. 55(2).

A judge should make an order for an accounting under that subsection if a beneficiary has made a request that is reasonable in light of all of the relevant circumstances and that request has been denied or not acted upon by the trustee. [40] In this case, it was entirely reasonable for Franklin’s estate to request an accounting. The following points inform my conclusion in this regard: (

a) The Mother died in November of 2015. Her estate was not probated. (

b) Christian averred that, notwithstanding many requests for a copy of the Mother’s will, Dorothy had refused to provide one. Dorothy responded by saying only that Christian had not asked “directly” for a copy of the will. (

c) Dorothy averred that, prior to his death, Franklin had “received funds as a named beneficiary, or joint account holder”. However, she also said, “I am not aware of the particulars of these payments or amounts”. (

d) Dorothy explained that the bulk of the Mother’s assets were “jointly held” and thereby were “automatically transferred to the name of the individual with who the assets were jointly held”. But, she provided no detail as to the nature of those assets or information about

the individuals who had held them jointly with the Mother. (

e) The only other bequests distributed to beneficiaries, according to Dorothy, were $2,000 for each grandchild, an amount that she averred had been personally delivered to Christian, and $1,000 for each of several designated beneficiaries (who were not identified), including Christian and his siblings. These funds were said to have come from an investment when it had matured.

Christian takes issue with this and avers that he and his siblings received only $1,000 each. [41] When these considerations are weighed together with the fact that, as per s. 55(1) of The Trustee Act , Franklin’s estate is entitled to an accounting, it is readily apparent that an order pursuant to s. 55(2) of The Trustee Act should be made. [ 39 ] This decision removed the “show cause” requirement on the beneficiary as a pre-condition to obtaining an accounting and introduced the lesser standard of “reasonable in light of all the relevant circumstances”.

Position of the Parties [ 40 ] The Applicant argues that he is entitled to an accounting from the Respondent as power of attorney for the periods from November 17, 2016 until September 19, 2019 and thereafter from August 21, 2020 until March 2, 2021 being the date of their mother’s death. The Applicant submits that from August 2, 2016 limited and springing powers of attorney remained in effect.

Therefore, pursuant to the terms of the POA, the caselaw, the inherent jurisdiction of the court and legislation, along with certain transactions that should raise “red flags”, a fulsome accounting should be ordered in the manner provided for in The Queen’s Bench Rules, Rule 16-52 and according to paragraph three of his originating application. [ 41 ] On the other side of the coin, the Respondent argues that she has provided the required materials to the Applicant pursuant to the various powers of attorney mentioned in her affidavit material.

Further, given the first time she saw the enduring power of attorney dated September 29, 2017 was September 19, 2019, she did not begin to exercise those duties until September 19, 2019 and has accounted for the duties that were exercised by her. As well, she submits that she provided an adequate accounting to the PGT for the period from September 19, 2019 to March 2, 2021 without further issue and this accounting, which was provided to the Applicant, is sufficient.

Further, she submits her explanations for the “Red Flag” concerns raised by the Applicant are uncontroverted and therefore sufficient to vitiate the need for an accounting in the circumstances. Does the court have jurisdiction to make any of the accounting orders sought by the Applicant? [ 42 ] Given the fact scenario, the statutes available for the Applicant in the case at bar to use to compel an accounting are ss. 18(6) (b), 18.1(1) (a)(ii), 18.1(2) (b), 18.1(5) of the Act , and all three subsections of s. 55 of The Trustee Act 2009 .

Additionally, s. 20 of the Act can be used for advice and direction from the court to determine accounting matters although this

section does not add anything substantive to the powers of the court under s.18. Of note, s. 18.1(1)(a)(ii) of the Act and s. 55(1) of The Trustee Act, 2009 contain mandatory directions using the word “shall” in relation to ordering an accounting while the other sections simply use the permissive word “may”. [ 43 ] Therefore, given that the Applicant is an adult family member of the grantor as well as being a beneficiary of the estate of the grantor, it is clear that the court has the jurisdiction to order an accounting pursuant to all these statutes.

Should the court exercise their discretion to make the accounting orders for the time periods requested and, if so, in what format should the accounting be? [ 44 ] The decision in Bryant Estate is binding on this court. I must make an order for an accounting if the Applicant has made a request that is reasonable in light of all the relevant circumstances to the Respondent which has not been denied or acted upon. Additionally, it is not necessary for a beneficiary to show cause why the accounting should be granted nor must it be lightly denied.

However, an ill-timed or vexatious request for accounting will not be ordered despite the mandatory language in the statute. [ 45 ] While the Tinline decision indicated that a property attorney should not be required to provide an accounting when her power was not exercised in absence of evidence that she exercised her authority other than as instructed, the Court of Appeal decision in Bryant Estate does not reiterate this statement nor does it mention it specifically when relating instances when a court will not order an accounting.

That said, logic would dictate that it would be pointless to order an accounting during a period in which the grantee did not exercise her powers as there would be nothing to account for given the grantee would not have performed any functions. The order of the court will depend on the evidence of the POA’s exercise of powers under the POA. [ 46 ] With respect to the accounting orders sought from the respondent as executrix, I note the material is somewhat unclear about whether the relief requested in the originating application is still being sought.

Neither briefs of law provided by the Applicant make mention of the time period contemplated from March 2, 2021 onwards. However, paragraph three of the originating notice mentions both paragraphs one and two so the matter is not completely resolved. Out of an abundance of caution, I will make a determination on the matter given the material and arguments I have before me.

Therefore, given the statements made in paragraph six of the affidavit of the Respondent sworn December 9, 2022, and the principles enunciated in Bryant Estate by the court relating to the timeliness of an accounting being a potential reason for not ordering a “mandatory” accounting, I find that no accounting should be ordered at this point in time relating to the Respondent’s duties as executrix. There is no need for the duplication of work given the Respondent’s averment that she is close to finalizing the distribution of the estate and thereafter providing a final accounting.

The Applicant will have leave in the future to address this matter should there be any unexplained delay in providing a final accounting as required. [ 47 ] With respect to the accounting order sought from the respondent as POA, it is clear from the evidence that the PGT did not wish to be further involved as they have not responded to the Applicant’s counsel’s letters of inquiry nor have they indicated to anyone any desire to further investigate the matter as a result of the accounting material provided by the Respondent. The Respondent

had argued that the court can take comfort from their review given they are a government body charged with protecting the interests of vulnerable grantors among many other duties so they are not taken advantage of by grantees of power of attorney. While I believe that their mandate may be a factor to take into consideration, I do not have any evidence of the care they take in reviewing accountings or the level of skill they possess in so doing. Specifically, I have no evidence of the nature or quality of their review in this case.

Given that lack of information, priority must be given to the evidence and material that is before the court in order to make a just determination rather than rely on sweeping generalizations. [ 48 ] It is within this legal framework that we must examine the documents provided and determine whether the Respondent met her obligations pursuant to the various powers of attorney. These issues require a consideration of the necessary level of detail for the accounting, as well as determining whether an accounting should be ordered at all.

To properly assess these matters, a more detailed examination of the individual POA will be required. [ 49 ] The first POA granted to the Respondent was an enduring POA from March 26, 2009. It was granted to the Respondent solely, there were no limitations, and it was effective immediately. [ 50 ] The second POA was granted on August 2, 2016 to the Respondent solely and she was only given specific authority to make deposits into the grantor’s chequing account and to obtain the balance of that chequing account held at the CIBC main branch in Prince Albert.

It also provides that the Applicant could request an accounting of the said chequing account. This POA was signed at the grantor’s lawyer’s office with her lawyer, Ms. Arnot as her witness. [ 51 ] The third POA was granted on November 17, 2016, to the Applicant and Respondent jointly. It revoked the POA from March 26, 2009 and was an enduring POA contingent on the grantor’s family physician advice that Ms. Davidner was not competent to manage her affairs. There were no limitations other than all decisions needed to be unanimous as between the Respondent and the Applicant.

It was again signed at the grantor’s lawyer’s office with Ms. Arnot signing a legal advice and witness certificate. [ 52 ] The fourth POA was granted to the Respondent solely on April 23, 2017 and was specifically limited to allowing the Respondent to access the grantor’s post office box with Canada Post to receive correspondence and parcels as well as making attempts to locate any correspondence and parcels. No other POAs were revoked. It was again signed by Ms. Davidner in the presence of her lawyer, Ms. Arnot. [ 53 ] The fifth and final POA was granted to the Respondent on September 29, 2017.

There were no limitations and it was effective immediately. It revoked the POA from November 17, 2016. It was again signed with the grantor’s lawyer, Ms. Arnot. [ 54 ] With respect to the time period from November 17, 2016 to September 19, 2019, the first argument made by the Applicant in favour of ordering an accounting relates to his allegation that, as a result of the grantor’s diminishing capacity and vulnerability from 2016 onwards detailed in paragraphs 17 to 29 of the affidavit of the Applicant, the Respondent became a trustee rather than an agent for the grantor (see Tinline at para 20 ).

I have determined that his evidence on this subject is woefully inadequate in establishing any kind of incapacity or vulnerability. [ 55 ] Essentially, the Applicant relies on general statements of confusion, the lack of contact with his mother at the lodge, the decision to remove him in 2017 as a joint POA, and the issue with respect to roof repairs.

There were no statements by independent witnesses including those from the residence of his mother who may have personal knowledge of her mental condition, no evidence from any physician who may have examined her nor any specific evidence that would corroborate the Applicant’s assumptions. In fact, the decision to remove the Applicant from a joint POA with the Respondent could be seen as remarkably prescient given the acrimonious tenor of the affidavit evidence in this application as between the parties. As well, I find it noteworthy that Ms.

Arnot, a very experienced and capable lawyer, provided the attending certificate on most POAs. The evidence demonstrates that Ms. Davidner had the assistance of legal counsel throughout many of the impugned times of concern. While the Respondent does not specifically deny her mother’s diminishing capacity, there is no cogent evidence for this court to make such a determination.

In fact, the evidence that is available leads the court to determine otherwise up until the evidence related to the doctor’s concern in October of 2019. [ 56 ] Therefore, I find that the evidence does not establish that the Respondent acted as a trustee in any greater capacity than as she indicated. [ 57 ] The next argument to consider in determining the extent to which the Respondent has complied with her obligations for that time period is to determine the accuracy of her averment that she did not begin exercising her duties in relation to the November 17, 2016 POA until September 19, 2019. [ 58 ] While the Respondent’s statements to this effect are uncontroverted in the sense that no responding affidavit material was filed by the Applicant, that would not necessarily be determinative should there be some evidence in the documentation that may suggest otherwise.

However, when reviewing the minutes of settlement signed August 19, 2021 by the Respondent and filed by the Applicant, I note the statement “Leah Towill acted as Power of Attorney for Jean Davidner from September until her death on March 2, 2021 …” and a statement by the Applicant confirming the sufficiency of the accounting provided by the Respondent from September 19, 2019 to August 21, 2020. This would corroborate the Respondent’s statements in her affidavit. In addition, I note the uncontroverted evidence related to the fact that a doctor did not determine that Ms.

Davidner was without capacity until October of 2019. [ 59 ] Further, I do not find anything in the emails sent by the Respondent personally to Counsel for the Applicant that would change this conclusion.

The Respondent’s statement in paragraph 17 of her affidavit sworn December 16, 2022 to the effect that she admits to having “misdescribed the Powers of Attorney” in response to emails from the Applicant’s counsel is reasonable given the context of the discussion between the parties and the fact she was unrepresented at the time. [ 60 ] Therefore, I find that the Respondent was not acting pursuant to the November 17, 2016 POA and subsequent September 29, 2017 POA until September 19, 2019 and the Applicant would not be entitled to receive an accounting until September 19, 2019 under the November 17, 2016 POA or the September 29, 2017 POA.

Given that all the items of concern that may be the “red flags” as noted in the Armstrong decision fall within a timeframe prior to September 19, 2019, I find that a claim for accounting with respect to

those items is not appropriate in these circumstances given the Respondent was not exercising any authority under the POA in question. [ 61 ] Even if I was wrong on that issue, I would find the evidence provided by the Respondent in response to the concerns raised contained in the Applicant’s material to be credible enough to overcome the Applicant’s stated concerns. I find that her averment that these items of concern were already discussed during litigation discussions and formed part of the minutes of settlement to make sense having regard to the overall factual situation.

Given the date of those concerns and the thoroughness of the acrimony between the parties, it would be logical and reasonable to believe that discussion would have taken place previously with respect to those items of concern during the negotiations that led to the minutes of settlement. These concerns did not have anything to do with newly discovered material. Having read the exchanges between the parties, I find that no stone would be left unturned in the pursuit of any grievance. [ 62 ] Had the Applicant wished to contest those statements, a reply affidavit or other sworn material could have been filed.

It is not enough for the Applicant to use arguments in his briefs of law to contest matters as those submissions are not admissible sworn evidence before the court. [ 63 ] In addition, I find that the limited POA of April 23, 2017 would not engage any substantive potential for accounting given the very limited subject matter. [ 64 ] Therefore, up until September 19, 2019, the only engaged POA would be the limited POA of August 22, 2016 where the Applicant had a right to obtain an accounting. [ 65 ] I have reviewed the documents provided in Exhibit “F” of the Respondent’s affidavit sworn December 16, 2022.

I note that they provided a complete record of the bank account in question with a specific date, a general transaction description and an amount deposited related to the date. While no balance was ever provided, the accounting power given to the Applicant simply stated “An accounting of all deposits made on my behalf”.

While the document in question strictly provides that documentation, I find that, without adequate context, the accounting of the deposits made during that time becomes deficient. [ 66 ] When taking into consideration the fiduciary nature of the relationship and the need to monitor that granting of power under the broad principles noted in Bryant Estate , I find it reasonable that a full bank statement must be provided that includes withdrawals as well as deposits, complete descriptions of the nature of the transaction as can be garnered from the bank and the balance after each transaction.

However, I do not find it appropriate that the Respondent would need to provide her own explanations with respect to the transactions as she remembers them.

A fulsome unedited bank statement for the account referred to in the August 22, 2016 POA is all I find to be required given the other rulings I have made and the specific terms of the POA in question. [ 67 ] Given that an acceptable accounting occurred between September 19, 2019 and August 21, 2020 as agreed to between the parties, the only other portion of time in question where the court needs to determine whether a sufficiently detailed accounting occurred is the period between August 21, 2020 to March 2, 2021. [ 68 ] The POAs which would be engaged at this point in time for which the Respondent would be responsible would be the POAs of August 22, 2016, April 23, 2017 and September 29, 2017. [ 69 ] In the briefs of law filed by the Applicant, there seemed to be less concern with the accounting provided by the Respondent to the PGT from August 21, 2020 to March 2, 2021.

This may be as a result of the similarity in documentation to the acceptable accounting from September 19, 2020 to August 21, 2020. [ 70 ] I have reviewed the material and while it is handwritten and not professionally done, I find it is adequate in all the circumstances as it complied with the form provided for by the Regulations for the Act . I do not see that professional perfection is required as the amount of necessary detail will depend on the context.

Therefore, I do not find the Respondent is required to do anything further for this time period as there were no items that called for more detail or specific items that raised “red flags”. Of note, the affidavit of the Applicant did not make mention of any items of concern either. Costs [ 71 ] I find that both these parties bear some responsibility for the state of these proceedings whether it be due to dilatory behavior, acrimonious exchanges or lack of appropriate training.

Neither party has established a proper foundation for solicitor client costs as outlined in Siemens v Bawolin , 2002 SKCA 84 , [2002] 11 WWR 246. Given these circumstances and the mixed degree of success on the application, I decline to award any costs. J. J.P. MORRALL