PAMELA STRADESKI PLAINTIFF - v. -, 2023 SKKB 177

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 177 Date: 20 23 08 22 Docket: KBG-RG-02460-2022 Judicial Centre: Regina BETWEEN: PAMELA STRADESKI PLAINTIFF - and - NICK KOWALYSHYN, DEBBIE KOWALYSHYN, NICK KOWALYSHYN AND DEBBIE KOWALYSHYN IN THEIR CAPACITY AS THE EXECUTORS OF THE ESTATE OF JERRY WIONZEK DEFENDANTS THE SASKATCHEWAN HEALTH AUTHORITY NON-PARTY RESPONDENT Counsel: Jordan Hardy for the plaintiff Jonathan Milani and Nicole Tryhorn for the defendants Lynn Sanya for Saskatchewan Health Authority FIAT LAYH J.

August 22, 202 3 BACKGROUND [ 1 ] On the eve of his death, Jerry Wionzek transferred farmland to his neighbours, Nick and Debbie Kowalyshyn, and made them the sole beneficiaries of his estate and executors of his last will and testament [Will]. Mr. Wionzek’s only sibling, Pamela Stradeski, commenced an action in July 2020 against the Kowalyshyns, hopeful of having the Will and transfer of land set aside, alleging that her brother did not have the requisite capacity to effect either. [ 2 ] In the ensuing three years, little has been resolved, notwithstanding several notices of application, Ms.

Stradeski’s change of lawyers, and the exchange of several affidavits. A

summary of the proceedings is as follows: (

a) Ms. Stradeski commenced an action by statement of claim issued July 20, 2020, seeking an order setting aside the transfer of the farmland and requiring the Kowalyshyns to prove Mr. Wionzek’s Will in solemn form. (

b) The Kowalyshyns defended the action by statement of defence dated January 15, 2021. (

c) The requirements for mediation were satisfied by June 29, 2021, without resolution. (

d) By notice of application dated July 11, 2022, newly engaged legal counsel for Ms. Stradeski sought several orders, including compelling the Saskatchewan Health Authority [SHA] to disclose Mr. Wionzek’s medical records, an order pursuant to Rule 16-46 of The Queen’s Bench Rules that the Will be proved in solemn form and an order that the action issued July 20, 2020 and the proceedings to have the Will proved in solemn form “be tried together at the same time.” (

e) By notice of application dated September 13, 2022, the Kowalyshyns sought an order striking Ms. Stradeski’s statement of claim on the grounds that it was scandalous, frivolous or otherwise an abuse of process. (

f) By amended notice of application dated September 26, 2022, the Kowalyshyns added a further ground to its previous

application, stating as follows: 10. Moreover, Pamela does not have standing to pursue this action. She is not a beneficiary under Jerry’s Will, and therefore is not legally interested in the outcome of the Land Action. She does not stand to be entitled to become the registered owner of the Land, even if she succeeds in the Land Action. Instead, even if successful in the Land Action, the Kowalyshyns would inherit the Land under Jerry’s Will, through his Estate.

The only prospect that Pamela has to become the owner of the Land is if she can prove that Jerry’s Will is invalid, and she therefore becomes a beneficiary of the Estate pursuant to The Intestate Succession Act, 2019. Only in that event would Pamela have standing to pursue the Land Action. (

g) By a request for a case management order dated January 20, 2023, the Kowalyshyns asked that Ms. Stradeski’s claim and application be subject to case management. In their request for case management, the Kowalyshyns raised the question whether document production as sought by Ms. Stradeski should proceed before the court’s hearing of the application whether proof in solemn form should be ordered. (

h) By fiat of January 24, 2023, Chief Justice Popescul held that case management was appropriate and appointed Justice Klatt as the case management judge. (

i) By notice of application dated January 16, 2023, the Kowalyshyns sought an order that Ms. Stradeski’s application for production of medical records and her application for proof of the Will in solemn form proceed while the action and all remaining applications be stayed. (

j) On July 6, 2023, Justice Klatt granted a consent order that Ms. Stradeski’s application for production of medical records should proceed with the understanding that once this issue was resolved, the initial hearing for proof of the Will in solemn form would proceed. [ 3 ] On July 20, 2023, I heard argument from counsel respecting the issue of production of Mr. Wionzek’s medical records. The Kowalyshyns, citing Rule 16-36 of The Queen’s Bench Rules , say that Ms. Stradeski cannot compel production of any records, whether held by the Kowalyshyns or SHA, until the court orders that Mr.

Wionzek’s Will be proved in solemn form by a trial. Ms. Stradeski, on the other hand, seeks production of any medical records in the Kowalyshyns’ possession, and from the SHA pursuant to Rule 5-15 of The Queen’s Bench Rules . She says that her brother’s medical records might satisfy her concerns and allow a quick resolution. Furthermore, she states, early disclosure of medical records in such matters is commonplace in practice, sensible and cost- effective. THE ISSUE [ 4 ] The parties’ positions bring before the court the following issues: (

a) Whether Ms. Stradeski can compel production of Mr. Wionzek’s medical records in the possession or control of the Kowalyshyns (the executors of the estate) before she satisfies her onus under Rule 16-46 and compels a trial to prove the Will in solemn form; and (

b) Whether Ms. Stradeski can compel production from a third party, the SHA, under Rule 5-15 before she satisfies her onus under Rule 16-46 and compels a trial to prove the Will in solemn form. FACTUAL

SUMMARY [ 5 ] Mr. Wionzek was born November 24, 1955, and died November 8, 2019, at the age of 63. Ms. Stradeski was born April 15, 1963. She was adopted by Louis Wionzek and Mary Wionzek when she was three months old. The family farmed near Rama, Saskatchewan. Mr. Wionzek experienced difficulties at school. He dropped out when he was about 13 years old and lived on the farm with his parents. His mother died in 1982 and his father in 1995. Before his father died, he transferred the farmland to his son who has lived on the farm his entire life. Ms.

Stradeski moved from Rama to Canora, Saskatchewan in 1995, then to various places in Saskatchewan, eventually to British Columbia, returning to Melville, Saskatchewan in 2015. [ 6 ] Ms. Stradeski described Mr. Wionzek’s impoverished lifestyle. She says that his house was “filthy,” and without running water. He was unkempt and unable to maintain his personal hygiene. His teeth had deteriorated, leaving only one visible tooth when he smiled. She states that he was incapable of managing the farm after his father’s death in 1995 and, consequently, entered lease arrangements with neighbours. [ 7 ] Ms.

Stradeski states that in 2015 when her brother was in the Yorkton Hospital recovering from gallbladder surgery, the hospital staff learned of his living conditions and refused to release him unless a neighbour provided him with an electric heater for his house. Ms. Stradeski believes that the hospital may have assessed Mr. Wionzek’s mental capacity at that time. [ 8 ] Ms. Stradeski learned that the Kowalyshyns rented Mr. Wionzek’s land but believed that rent was minimal and sometimes not paid. Ms.

Stradeski offered, by her own admission, hearsay statements from a neighbour, Roger Genoway, who declined to swear an affidavit. The Genoway family befriended Mr. Wionzek and saw him to several medical appointments when Mr. Wionzek was diagnosed with cancer in the summer of 2019. Ms. Stradeski attached to her affidavit a written but unsworn statement, signed by Mr. Genoway and dated February 14, 2020, that Mr. Wionzek had told him that he wished to gift his land to the “Wildlife Society.” [ 9 ] On October 3, 2019, Mr. Wionzek was admitted to the Preeceville Hospital. Ms.

Stradeski visited her brother on October 27, 2019. On November 6, 2019, Mr. Wionzek transferred his farmland to the Kowalyshyns without any consideration. Ms. Kowalyshyn prepared the transfer authorization, which was witnessed by Frank Oystryk, a partner at Active Accounting Ltd. in Canora. [ 10 ] The next day, November 7, 2019, Mr. Wionzek executed his Will, prepared by Mr. Oystryk. It named the

Kowalyshyns as his sole beneficiaries and executors. [ 11 ] Peggy McLellan also swore an affidavit in support of Ms. Stradeski’s position. She was at the Preeceville Hospital on November 1, 2019. When she learned that Mr. Wionzek had been admitted, she stopped to visit him, as she did again on November 6, 2019. She states that he had rapidly deteriorated from her earlier visit. He was having trouble breathing and told her that he was nauseous and constantly sleeping. His skin was yellow. Ms. McLellan states that Mr. Wionzek was “incoherent,” and conversation was “strained.” She states that Mr.

Wionzek jumped from topic to topic and was not able to say more than a few words at a time. When she asked him questions, his responses were often unrelated to the question she asked. Ms. McLellan concluded, “Jerry was barely able to carry on a conversation with me when I visited him on November 6, 2019, let alone make any serious decisions.” [ 12 ] Larry Pozniak was at the Preeceville Hospital with Ms. McLellan the evening of November 6, 2019. He visited Mr. Wionzek and observed that his face was “very grey”, and he seemed to be in extreme pain.

He was barely sitting up and was having difficulties trying to drink ginger ale. Mr. Pozniak states that Mr. Wionzek had difficulty maintaining any conversation that evening. [ 13 ] Rodney Hanishewski swore an affidavit in support of the Kowalyshyns’ position. His family were close neighbours to the Wionzek family. Mr. Hanishewski knew both Mr. Wionzek (who was ten years his senior) and Ms. Stradeski (two grades ahead of him at school). Mr. Hanishewski also has known Nick Kowalyshyn for as long as he can remember. Mr. Hanishewski states that he knew that Mr.

Wionzek and his sister did not get along well and that Ms. Stradeski was angry that she did not receive a share of her father’s estate (an allegation she denies). After Mr. Hanishewski left Rama (and was incarcerated for serious criminal charges), he exchanged correspondence with Mr. Wionzek and attached lengthy excerpts of correspondence to his affidavit. Part of that correspondence indicates that Mr. Wionzek looked fondly upon Nick Kowalyshyn. Mr. Hanishewski states that he spoke to Mr. Wionzek on the telephone the day before he died. Mr. Hanishewski did not think that Mr.

Wionzek was confused or different than usual. [ 14 ] In his affidavit, Mr. Kowalyshyn states that around 2001, Mr. Wionzek asked him to rent 60 acres of his land. In 2005, Mr. Wionzek asked Mr. Kowalyshyn to rent more land, which he did until Mr. Wionzek died. Mr. Kowalyshyn denies that he failed to pay rent to Mr. Wionzek or that he paid late. Countering Ms. Stradeski’s statement that he only paid $2,240.00 in rent in 2017, Mr. Kowalyshyn exhibited proof that he paid $4,440.00 in that year. [ 15 ] Mr. Kowalyshyn states that when Mr.

Wionzek learned of his cancer diagnosis in July 2019, he came to their farm and explained that he was afraid of dying. During a visit on July 24, 2019, Mr. Wionzek told Mr. Kowalyshyn that he was going to leave his estate to him and his wife. Mr. Kowalyshyn describes several interactions with Mr. Wionzek during his medical treatment in the summer and fall of 2019. On October 30, 2019, the Kowalyshyns attended with Mr. Wionzek at a video conference call with Dr. Hagel, the oncologist at the Allan Blair Cancer Clinic. Mr.

Wionzek was told that he had new cancerous spots on his liver and that he had only approximately six months to live. Dr. Hagel told Mr. Wionzek to get his final affairs in order. [ 16 ] On November 1, 2019, the Kowalyshyns visited Mr. Wionzek at the Preeceville Hospital. During this visit, Mr. Wionzek told them that he wanted to add them as joint owners on the title to his land. Mr. Wionzek asked them to contact Active Accounting to arrange an appointment. Mr. Wionzek also provided instructions respecting his funeral service. [ 17 ] On November 4, 2019, the Kowalyshyns attended a meeting with Mr.

Wionzek, his doctor, social worker and a health care provider. The doctor told Mr. Wionzek to get his final affairs in order. Mrs. Kowalyshyn then saw to the preparation of the transfer authorizations, based on Mr. Wionzek’s instructions of November 1, 2019. [ 18 ] On November 6, 2019, the Kowalyshyns visited Mr. Wionzek at the hospital. Mr. Wionzek again stated his wish to have the land transferred into joint ownership and asked the Kowalyshyns to go to Active Accounting to find out if someone would meet with him so he could transfer the land.

The Kowalyshyns left the hospital and went to Active Accounting where they met Mr. Oystryk for the first time. They explained Mr. Wionzek’s request and gave him the transfer authorization that Ms. Kowalyshyn had completed. Mr. Oystryk advised that he would meet Mr. Wionzek to get direct instructions from him. [ 19 ] Later that day when the Kowalyshyns returned to the hospital, Mr. Wionzek told them that Mr. Oystryk had come to see him and that he had signed the documents to transfer the land. [ 20 ] The next day, on November 7, 2019, the Kowalyshyns again went to see Mr.

Wionzek but a nurse stopped them from entering his room because he was meeting with his accountant. When Mr. Oystryk and his colleague left Mr. Wionzek’s room, Mr. Wionzek told the Kowalyshyns that he had executed a will and that they were named as executors and beneficiaries. [ 21 ] At approximately 4:00 a.m. on November 8, 2019, Mr. Kowalyshyn received a call from a medical care provider letting him know that Mr. Wionzek had died. [ 22 ] The Kowalyshyns did not observe Mr. Wionzek to be confused at any time and deny any suggestion that he did not understand what he was doing. Mr. Kowalyshyn states that Mr.

Wionzek was “firm” in his instructions and that he told them not to tell Ms. Stradeski anything about his medical condition and that she was to receive nothing from the estate. [ 23 ] Ms. Kowalyshyn also swore an affidavit, similar in detail to Mr. Kowalyshyn’s affidavit. Ms. Kowalyshyn described how she came to closely know Mr. Wionzek after the Kowalyshyn family moved to the farm in 2005 where Mr. Kowalyshyn had been raised. Although Mr. Wionzek often spoke to Ms. Kowalyshyn about his parents, he never mentioned his adopted sister. [ 24 ] Dr. Catharina Meyer was Mr.

Wionzek’s attending physician at the Preeceville Hospital. In her affidavit she described Mr. Wionzek as “a pleasant, calm person” and that “he was very specific…about who his ‘family’ was.” She states that Mr. Wionzek told her that the Kowalyshyns were “the only people whom he considered to be his family and whom he trusted absolutely.” During his hospitalization Mr. Wionzek was very specific with Dr. Meyer, including written instructions, that his medical condition was not to be shared with a person he described as his step-sister, Pamela Stradeski, or with Roger Genoway. Dr. Meyers confirmed that Mr.

Wionzek signed three health care directives and consistently appointed Nick Kowalyshyn as his primary decision-maker and Ms. Kowalyshyn as his alternate. On October 3, 2019, Dr. Meyer assessed Mr. Wionzek as having no neurological nor psychiatric concerns

and was in good spirits. She determined that Mr. Wionzek was not suffering from confusion or loss of memory and that he possessed normal judgment and insight, an assessment Dr. Meyers stated did not change to the date of his death. [ 25 ] Dr. Meyers described her meeting on November 4, 2019 with Mr. Wionzek and the Kowalyshyns. She recommended that Mr. Wionzek get his affairs in order. She suggested to Mr. Wionzek that he should inform his family of his terminal condition, to which Mr. Wionzek replied that the Kowalyshyns were the only family he had. Dr.

Meyers emphatically states, “Jerry’s illness did not affect his brain nor his cognitive functioning.” She further states that she had no impression that the low doses of hydromorphone or any other of his medications would have affected his mental capacity to make decisions. [ 26 ] Mr. Oystryk also swore an affidavit. He states that he did not have any notes from his meeting with Mr. Wionzek on November 6 and 7, 2019 (which apparently prompted Ms. Stradeski to discontinue her previous application to compel Mr. Oystryk to produce documents in his possession). Mr. Oystryk states that he met Mr.

Wionzek in approximately 2000 and Active Accounting had been Mr. Wionzek’s accountant since 2014. Mr. Oystryk stated that the meetings with Mr. Wionzek on November 6 and 7, 2019 “will stick in [his] memory for a long time” because Mr. Wionzek was terminally ill and did not want to leave any of his property to his sister, Ms. Stradeski. Throughout his career, Mr. Oystryk assisted many Ukrainian bachelor farmers, including preparation of their wills. Mr. Oystryk had never met the Kowalyshyns prior to November 6, 2019, when they attended his office in Preeceville. The Kowalyshyns asked Mr.

Oystryk if he would attend to Mr. Wionzek at the hospital to sign and witness documents to transfer his farmland. As Mr. Oystryk states, he was “immediately on alert at this time.” The Kowalyshyns explained that Mr. Wionzek wanted to transfer land to them. Mr. Oystryk told the Kowalyshyns that he would meet with Mr. Wionzek and that they could not be present. Ms. Kowalyshyn gave Mr. Oystryk a package of papers that she said she had obtained from Information Services Corporation to transfer the land. [ 27 ] Mr. Oystryk attended the hospital the afternoon of November 6, 2019.

He knew that he had to take his time with Mr. Wionzek to determine if he was making his own decision to gift his land. He met with Mr. Wionzek in his room, with the door closed, for approximately 45 to 50 minutes. Mr. Oystryk questioned Mr. Wionzek to determine his faculties and his state of mind and whether anyone was directing or pressuring him and whether he understood the nature of the land transfer documents. Mr. Oystryk described Mr. Wionzek as “in good spirits.” Mr. Oystryk very specifically asked why he had not chosen to give his land to his sister. Mr.

Wionzek gave him a clear reply that he did not wish to do so. Mr. Oystryk concluded that, respecting the transfer of land, he “had no doubt that [Mr. Wionzek] had capacity to make this decision, and that he was not pressured by anyone to do so.” [ 28 ] Mr. Oystryk asked Mr. Wionzek about his intention respecting the rest of his minimal property. Mr. Oyrstyk told Mr. Wionzek that if he did not have a will someone would be appointed to look after his affairs, notably his sister. Mr. Wionzek told Mr.

Oystryk that he did not want his sister to administer his estate because he did not have a good relationship with her. Mr. Oystryk took Mr. Wionzek’s instructions, prepared a will and attended to its execution the next day. Again, Mr. Oyrstyk had a similar conversation with Mr. Wionzek to determine his understanding of the terms of the Will. Again, Mr. Oyrstyk concluded, “I had no doubt that [Mr. Wionzek] had capacity.” [ 29 ] Mr. Oystryk was shocked when the Kowalyshyns phoned him the next morning to tell him that Mr. Wionzek had died. He had not observed anything that would have led him to believe that Mr.

Wionzek’s death was so imminent. SHA’S POSITION [ 30 ] Counsel for the SHA attended the hearing but stated that SHA was not taking a position and would await the court’s determination. MS. STRADESKI’S POSITION [ 31 ] As Ms. Stradeski states at para. 2 of her brief of law, the documents and records she seeks “are necessary for the court to determine whether the Last Will and Testament of Jerry Wionzek dated November 7, 2019…should be proven in solemn form and to determine the validity of the purported gratuitous transfer of Jerry’s farmland to the Kowalyshyns on November 6, 2019…” Ms.

Stradeski also states that the Kowalyshyns have “chosen to provide snippets of these very records to support their own cause” and, consequently, “have clearly put the records in issue.” [ 32 ] Ms. Stradeski looks to Rule 5-15 of The Queen’s Bench Rules in her quest to obtain Mr. Wionzek’s medical records from the SHA.

The Rule provides that non-parties may be ordered to produce documents where (1) the document is in their possession, custody, or control; (2) there is reason to believe the document is relevant to any matter in issue; and (3) the person in possession, custody, or control of the document might be required to produce it at trial. [ 33 ] The first requirement of Rule 5-15 is clearly met: the SHA has Mr. Wionzek’s medical records. Ms. Stradeski states that the second requirement – that the documents must be relevant to a matter in issue – is similarly clear. Mr.

Wionzek’s medical records are directly relevant to his physical and mental state at the time of the impugned transfer and execution of his Will. The final requirement is that the documents might be compelled to be produced at trial unless they might be protected by a claim for privilege. Ms. Stradeski states her claim compels production of Mr. Wionzek’s medical records, even though she accepts that medical records are, by their nature, private and confidential. [ 34 ] Ms. Stradeski points out that the Kowalyshyns accept that the medical records are relevant and not privileged since they have filed Dr.

Meyers’ affidavit, which includes parts of Mr. Wionzek’s medical records with portions redacted. This selective disclosure, Ms. Stradeski states, creates unfairness and justifies full disclosure of Mr. Wionzek’s medical records. THE KOWALYSHYNS’ POSITION

[35] The Kowalyshyns say that Ms. Stadeski is putting proceedings in the wrong order: she has put the proceduralcart before the horse. They are not saying that Ms. Stradeski will never see Mr. Wionzek’s medical records; they are saying that if shewishes to have the Will proved in solemn form (that is, in open court with notice to all interested parties) she must first satisfy Rule 16-46and the court’s

interpretation of that Rule. The Rule reads as follows: Applications to prove will in solemn form 16-46 A person who is or may be interested in the estate of a deceased person may give notice for the will to be proven in solemn form. Revoking a grant 16-47(1) A person interested in an estate who seeks to revoke a grant may apply at the judicial centre at which the grant was made, or towhich the estate has been transferred, by notice of application to be served on the personal representative to show cause why the grantshould not be revoked.

(2) On an application pursuant to subrule (1), a judge may order that pending the disposition of the application nothing be done under thegrant without leave. [36] The Kowalyshyns rely on a line of authorities that have set out a procedure for any one like Ms. Stradeski whochallenges a will’s validity. Ms. Stradeski must first bring a chambers application to allow a judge to determine whether she has raisedsufficient suspicion about the Will’s validity. If she fails, the process ends.

If she succeeds, a judge will order a trial and the propounderof the Will – in this case, the Kowalyshyns – must prove the validity of the Will by showing Mr. Wionzek had requisite capacity to makea will. DISCUSSION Beginning Principles Respecting the Validity of Wills and Challenges to Wills [37] As a first principle, Rules 16-46 and 16-47 are set against the common law principle that a will, correctlyexecuted, will generally satisfy the conclusion that it is presumptively valid.

In Vout v Hay, (SCC), [1995] 2 SCR 876at para 26 [Vout], the Supreme Court stated: 26. …Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator whoappeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessarytestamentary capacity. [38] Ms. Stradeski has not impugned the signature on Mr. Wionzek’s Will as his own or that it has not been properlywitnessed by two witnesses. [39] Rule 16-46 requires that Ms. Stradeski must be a person interested in the estate.

She is, because if Mr.Wionzek’s Will is invalid she would be the sole beneficiary under an intestacy. Of some interest, Ms. Stradeski states in her affidavit thatshe understood that her brother had previously stated his intention to leave his land to “wildlife.” She has also attached to her affidavit awritten statement from the Genoways that they, too, had such an understanding. Whether Ms. Stradeski intends to honour this intentionor whether she wishes to receive the estate as her own is unclear to the court (and apparently irrelevant). [40] Rule 16-46 requires Ms.

Stradeski, as a person who “seeks to revoke a grant,” to “apply [to the court].” TheRule is silent respecting the onus that rests with Ms. Stradeski when she brings her application.

However, Vout at para 27, which hasbeen cited in over 50 Saskatchewan decisions, explains that the challenger of a will can upset the initial presumption of validity ortestamentary capacity “by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval.”This negating of the testator’s approval or capacity is commonly called raising a suspicion respecting the circumstances of the making ofthe will.

If the challenger is successful in this first step, then, as stated in Vout at para 27, “the legal burden reverts to the propounder.” [41] The Saskatchewan courts soon had occasion to consider Vout. A year later, Justice Baynton in Dieno Estate vDieno Estate (1996), (SK KB), 147 Sask R 14 (QL) (QB) at para 27 described the two-step procedure as follows: 27 An application in Saskatchewan to challenge a will on the basis of testamentary incapacity potentially involves two levels ofhearings. The first is a chambers hearing to determine if there is sufficient merit in the challenge to warrant a trial.

The second (if theapplicant is successful) is a trial hearing to determine the issue itself. The issue before the court at either level is the same. The maindifference is the scope of the hearing, the ability to determine credibility respecting contradictory evidence, and the relief that is granted.The chambers judge decides if there will be a trial, the trial judge decides if the testator had testamentary capacity.

In order to decidewhether a trial is warranted, the chambers judge must summarily consider the evidence that tends to negate testamentary capacity alongwith the evidence which tends to affirm testamentary capacity. There is more involved than simply ascertaining if there is some evidenceadduced by the applicant that tends to negate capacity. Evidence adduced by the proponents of the will must also be considered. [42] Justice Baynton discussed the reason behind this two-step procedure. If persons like Ms.

Stradeski could simplyapply to have a will proved in solemn form, the “result would be needless expense and litigation,” which especially in small estates couldresult in depletion of the estate. He wrote at para. 30: 30 On the other hand, unless the applicant challenger is required to meet some evidentiary threshold, proof in solemn form would haveto be granted on request. The undesirable result would be needless expense and litigation. In small estates, the costs could conceivablydeplete the estate.

In his trial judgment in Sherman Estate [(1989), (SK KB), 74 Sask R 246 aff’d (1990), (SK CA), 81 Sask R 252], supra, Wright J. at p. 249 observes that it is unfair to require an executor to defend a

testamentary instrument simply because a disgruntled relative or other potential beneficiary makes an allegation of incapacity.

This is especially so if the challenge is brought long after a grant of probate has issued. [ 43 ] Similarly, in Kyrylchuk v Cox , 2018 SKQB 132 at para 35 [ Kyrylchuk ], Justice Leurer (as he then was) explained that challenging the validity of a will requires a unique proceeding, unlike other types of civil claims, a sentiment Justice Gerwing expressed in Ritchie v Royal Trust Corporation of Canada , 2007 SKCA 64 , 293 Sask R 238 [ Ritchie ] ten years earlier where she described the two-step process as “a relatively rare procedure in Saskatchewan.” Justice Leurer wrote: [35]… Unlike other forms of litigation, in the context of an application under Rules 16-46 and 16- 47, a litigant has no right to define the issues tried by the court.

The court needs to be convinced that a specific issue affecting will validity – such as undue influence – requires trial. If it permits a trial, the court specifically orders the issues to be tried, the parties to the litigation, and other like matters… [ 44 ] Additionally, Justice Leurer explained why this process has been the court’s historical approach to challenges to wills: [35]… The process is structured to expedient probating of a will by narrowing and focusing the issues requiring adjudication prior to probate.

In the words of Baynton J. in Dieno at para 30, all of this prevents the estate from being subject to “needless expense and litigation”. Inviting or permitting potential creditors or other types of claims into the process of proving a will is at odds with the focused process provided for by The Queen’s Bench Rules . [ 45 ] If the challenger meets the threshold test, the court will order a trial to have the Will proved in solemn form. The Kowalyshyns state that only at this stage, after a trial has been ordered, can Ms. Stradeski expect to receive production of Mr.

Wionzek’s medical records. [ 46 ] For clarity, this application before the court is only to determine whether Ms. Stradeski will have access to Mr. Wionzek’s medical records to support her initial application to challenge Mr. Wionzek’s Will. This application will not determine whether Ms. Stradeski has met the threshold of the first test. That application will follow my decision. The Question: Production of Documents Before the Initial Hearing [ 47 ] The question remains, can Ms. Stradeski seek documents either from the Kowalyshyns or from the SHA to mount her initial argument to raise a suspicion respecting Mr.

Wionzek’s Will or, as the Kowalyshyns state, does forced disclosure before a trial is ordered invite challenges that engage the estate in needless expense. The answer calls for a balancing of two principles: the principle of full and open disclosure as a hallmark of civil litigation against the principle that estates should not be subject to challenges without the challenger raising an initial suspicion of invalidity. Should Ms.

Stradeski have to mount her challenge without access to evidence that might lie solely in the hands of the proponents of the impugned Will – the Kowalyshyns – or in the possession of third parties – the SHA? Should Ms. Stradeski be allowed disclosure of documents she believes might provide, as Vout requires, “some evidence which, if accepted, would negative knowledge and approval.” Is it fair that in meeting any initial challenge mounted by Ms. Stradeski, the Kowalyshyns have already provided to the court medical records to refute Ms. Stradeski’s challenge to Mr. Wionzek’s Will?

THE DECISION [ 48 ] I have determined that the appropriate

interpretation of Rule 16-46, the application of relevant case law, and the principle of protecting an estate from unnecessary expense augurs for this result: neither the Kowalyshyns nor SHA shall be ordered to produce Mr. Wionzek’s medical records. I offer the following explanation for my decision. The Basic Principle: Are Afforded Protection From Delays and Expenses Occasioned by Unmeritorious Challenges [ 49 ] Virtually every decision of Canadian courts since the Supreme Court’s decision in Vout have commented on the purpose of two-step inquiry, a purpose that must be reflected in this decision, namely, to have an initial

summary determination whether the challenge to the will’s validity meets legal muster. Courts have identified an often-seen scenario when disgruntled, disinherited persons put an estate through costs and delay in challenging a will. Justice Myers in Seepa v Seepa, 2017 ONSC 5368 at para 1 [ Seepa ] described the typical fact pattern as follows: [1] … The fact pattern in these cases is almost always the same. The applicant has been cut out of a will or has been gifted less than he or she believes was due.

Of course, the beneficiary who obtains “more” is usually the one who cared for, or at least spent comparatively more time with the deceased. This lets the disgruntled applicant allege, virtually on that basis alone, that the caretaker beneficiary exercised undue influence to induce the deceased to make an unfair distribution of the estate. [ 50 ] I cite Justice Myers’ statement not as prejudging the merits of Ms.

Stradeski’s next application, but as the court’s reluctance to put an estate through expense and delay inherent in challenges of wills, which necessarily would include potential applications for production of documents, whether from the proponents of the Will or from third parties. [ 51 ] In Seepa , Justice Myers stated that in Ontario, most challenges to wills are set down for trial by the consent of the parties, without an initial hearing. He disagreed with this approach even though he had before him such a consent order.

He did not accept the consent order and, instead, ordered the challenger of the will to present evidence to challenge the validity of the will. Justice Myers found that without the constraining gatekeeping role afforded by an initial hearing, which placed an onus on the challenger of the will, the parties were immediately consigned to “ lengthy, intrusive, expensive documentary collection and investigation proceedings that can last for the better part of a year or more.” (para. 2) [Emphasis added.] This result is precisely what has happened in Ms.

Stradeski’s quest for document production before she has brought her application to raise a suspicion respecting the Will’s validity.

The Discretion of the Judge Hearing the First-Step Hearing [52] Justice Klatt, as the case management judge, will hear Ms. Stradeski’s application in which she will attempt toadduce evidence to call into question the validity of Mr. Wionzek’s Will. Justice Klatt has broad discretion to determine the merits of Ms.Stradeski’s application. Necessarily, Justice Klatt will articulate the test that Ms. Stradeski must meet before a trial is ordered todetermine the validity of Mr. Wionzek’s Will. Justice Klatt will find several articulations of the threshold test.

Many exist, including Justice Gillese’s statement in Neuberger v York, 2016 ONCA 191 at para 88, 395 DLR (4th) 67 [Neuberger], where she wrote, (withemphasis added by Justice Myers in Seepa at para 26, when he quoted Neuberger): [88] … In my view, an interested person must meet some minimal evidentiary threshold before a court will accede to a request that atestamentary instrument be proved. In the absence of some minimal evidentiary threshold, estates would necessarily be exposed toneedless expense and litigation. In the case of small estates, this could conceivably deplete the estate.

Furthermore, it would be unfair torequire an estate trustee to defend a testamentary instrument simply because a disgruntled relative or other potential beneficiary makes arequest of proof in solemn form. [Emphasis added] [53] My point is this: when Justice Klatt considers the merits of Ms. Stradeski’s application and given Ms.Stradeski’s obligation to “meet some minimal evidentiary threshold,” Justice Klatt may see fit to consider the concerns Ms. Stradeski hasraised in this application, that the Kowalyshyns, as proponents of the Will, have had the advantage of access to Mr.

Wionzek’s medicalrecords and she has not. [54] Ontario case law confirms that the hearing judge in the first application may consider that a trial may afforddiscovery and, consequently, more fulsome evidence to challenge a will, but first the challenger must adduce an appropriate evidentiarybasis.

In Dimakarakos v Alimena, 2022 ONSC 4386 (affirmed in Bitaxis Estate v Bitaxis, 2023 ONCA 66), Justice Cavanagh stated theposition of the challenger of the will, placing the initial hearing before the disclosure of medical records: [11] … George submits that this evidence is more than sufficient to meet the minimum evidentiary threshold, and having met this lowthreshold, he is entitled to production of legal and medical records in order to determine whether Theoni had the requisite capacity toexecute the 2019 Will or was unduly influenced in the execution of the 2019 Will. [55] Justice Cavanagh accepted that George’s submission was sound, but he failed to meet the “low threshold” and,consequently, no trial was ordered, and George never received production of either the testator’s legal or medical records.

The Court ofAppeal agreed with both the principle and the result, stating: [5] The application judge considered and applied Neuberger. He clearly appreciated that the purpose of the minimal evidentiarythreshold was to determine whether the appellant was entitled to documentary discovery.

His decision is entitled to deference: Johnson v.Johnson, 2022 ONCA 682, at paras. 15 and 20, leave to appeal to S.C.C. requested, 40477. [Emphasis added] [56] Condensed, the above quotation states that an application judge must first look for a “minimal evidentiarythreshold,” which, in turn, will determine whether a trial proceeds entitling the challenger to document discovery. First an Order to Trial and Then Discovery [57] Essentially, the above approach that Justice Myers took in Seepa identifies the mischief if challengers werepermitted to obtain intrusive production before meeting any evidentiary threshold.

He held that without an evidentiary basis thechallenger could not be allowed access to the usual tools of discovery. To do otherwise would defeat the purpose of the two-stageinquiry. He wrote at para. 35: [35] … At this preliminary stage, the issue is not whether the applicant has proven his or her case but whether he or she ought to begiven tools, such as documentary discovery, that are ordinarily available to a litigant before he or she is subjected to a requirement to puta best foot forward on the merits.

Normally, a litigant must just plead facts that support a cause of action to become entitled to use thefull panoply of fact-finding tools provided by the Rules. In estates cases, more is required. Some evidentiary basis to proceed is requiredin order to address the specific policy concerns that are discussed above. [Emphasis added] [58] Applying this direction, that “the full panoply of fact-finding tools” follows, but does not precede, an initialfinding of suspicious circumstances, Ms. Stradeski’s application for production of Mr.

Wionzek’s medical records is premature and mustfail. [59] Even more on point with the instant application for production of documents, the Ontario Court of Appeal’sdecision in Johnson v Johnson, 2022 ONCA 682 at para 16, (leave to appeal to the Supreme Court of Canada dismissed) commented on production of medical records before a will is challenged in a hearing: [16] We reject [the challenger’s] submission that her application should not have been dismissed without production of the medical,financial, and legal documents that she had requested or the calling of further evidence from Mrs. Johnson’s advisors.

Her argumentdefeats the very practical purpose of the minimal evidentiary threshold prescribed by this court in Neuberger, at para 88: to avoid puttingan estate to the needless expense and delay of a fishing expedition brought by “a disgruntled relative”.

It also undermines the policyconcerns articulated in Neuberger that a claimant ought not be permitted to deplete an estate and delay its administration by seekingdocumentary discovery or other directions without meeting the minimal evidentiary threshold of “some evidence” that would call intoquestion the validity of a will and that is not successfully answered by the responding party…

[Emphasis added] [60] The emphasized portions of the above quote are full answer to the instance application. As the court found, theapproach was consistent with the principles of efficiency, affordability and proportionality set out in Hryniak v Mauldin, 2014 SCC 7,[2014] 1 SCR 87.

Rule 16-46 Contemplates an Application, Not an Action [61] Rule 16-46 specifically states that a “person interested in an estate who seeks to revoke a grant may apply at thejudicial centre at which the grant was made.” (Emphasis added.) Of the methods to bring a matter to court, a notice of application isdifferent than a statement of claim or an originating application. An “application” is not an “action.” A will challenge brought byapplication is inherently different from proceedings initiated by statement of claim, particularly the parties’ right to discovery ofdocuments and the right to questioning.

In a true action, commenced by a statement of claim, the scope of discovery is defined by thepleadings and occurs before trial. The application contemplated by Rule 16-46 is based on affidavit evidence marshalled by the opposingparties and subject to the right to cross-examination. [62] Admittedly, neither party addressed this difference in either their briefs of law or in oral submission and thecourt is without the benefit of full argument on this point. Suffice it to say that whether or not discovery of documents differs between anaction and an application, my decision would not change.

Medical Records—a Special Consideration [63] The Kowalyshyns state that the court should not lightly disturb Mr. Wionzek’s privacy interest in hisconfidential medical history, which is threatened by Ms. Stradeski’s sweeping application. On this point, I agree with and adopt theKowalyshyns’ submissions stated at paras. 142 and 143 of its brief of law, supported by reference to the affidavits before the court: 142. … In Frenette v Metropolitan Life Insurance Co., [1992] 1 SCR 647, L’Heureux-Dube J. … confirmed thatrelevant medical records may be producible.

However, she observed that a patient has a relative right to confidentiality in medicalrecords, and whether the medical records are producible is a context-specific inquiry that balances the patient’s privacy interest againstrelevance and the public interest in the efficient administration of justice: at paras 687-694. 143. In the circumstances, Ms. Stradeski’s premature desire for Mr. Wionzek’s medical records is more than counterbalanced by Mr.Wionzek’s privacy interest. It is uncontradicted that Mr. Wionzek did not want Ms. Stradeski to know about his medical condition.

Heexpressed this to the Kowalyshyns and, on three separate occasions, to his medical team. … A deceased person’s privacy interest doesnot terminate on death: Richardson v Canada Life Assurance Company, 2004 ABQB 805, 364 AR 348 at paras 25-29. Despite Mr.Wionzek’s ongoing privacy interest, Ms. Stradeski seeks (at least) four years’ of his medical records.

She seeks such intrusive productiondespite the fact that the only relevant period for determining testamentary capacity (if it were in issue at this time) is when the Will wasmade and executed: Ritchie at para 10. [64] Frankly, certain apparent observations make Ms. Stradeski’s quest for Mr. Wionzek’s medical records ofquestionable value. Her own evidence is that in 2015, four years before Mr. Wionzek transferred his land and when he was in theYorkton Hospital after gallbladder surgery, an assessment of his mental capacity may have been completed because of the hospital’sconcerns about his living conditions.

That conjecture is not sufficiently convincing to have Mr. Wionzek’s medical records disclosed fora medical condition far removed from any notion of lack of capacity and four years before his death. [65] Furthermore, Ms. Stradeski has received the medical assessment of Dr. Meyers, Mr. Wionzek’s attendingphysician at the Preeceville Hospital. Her evidence is unequivocal in stating Mr. Wionzek’s mental capacity was not suspect, even to thedate of his death. Medical Records in the SHA’s Possession [66] If Ms.

Stradeski is not permitted disclosure of medical records in the Kowalyshyns’ possession, does a differentanalysis apply to Mr. Wionzek’s records in the SHA’s possession? Ms. Stradeski looks to Rule 5-15. It states: 5-15(1) On application, and after notice of the application is personally served on the person affected by it, the Court may order theproduction of a document from a person who is not a party at a date, time and specified place if: (

a) the document is in the possession, custody or control of that person; (

b) there is reason to believe that the document is relevant to any matter in issue; and (

c) the person who has possession, custody or control of the document might be required to produce it at trial.

(2) In addition to an order pursuant to subrule (1), the Court may give directions respecting the preparation of a certified copy of adocument that may be used for all purposes instead of the original, saving all just exceptions.

(3) The person producing a document pursuant to this rule is entitled to receive the same conduct money that the person would beentitled to receive if he or she were questioned pursuant to Subdivision 3.

(4) Subject to subrule (5), the costs of an application must be borne by the party making the application.

(5) If the Court is satisfied that, by reason of the production of the document, there has been a saving of expenses, the Court may awardthe whole or part of those costs to the party making the application. [67] Counsel has not provided a case specifically on point, that is whether a third party can be compelled to produce

documents prior to the court ordering a trial to prove a will in solemn form. The question is whether, in Ms. Stradeski’s initial quest to point to “some evidence that would tend to negative knowledge and approval” (as described in Vout ), she should be able to compel a third party, like the SHA, to produce Mr. Wionzek’s medical records. [ 68 ] Ms. Stradeski argues that Mr. Wionzek’s medical records are highly relevant to prove his capacity at the time he executed his Will. The court accepts this truism, but that is not the question. The Kowalyshyns accept that if a trial is ordered, Mr.

Wionzek’s medical records will be relevant and must be disclosed. They say that as executors of Mr. Wionzek’s estate, they would be able to obtain and produce Mr. Wionzek’s medical records. But now is not that time. [ 69 ] Ms. Stradeski’s position that disclosure of Mr. Wionzek’s medical records, now and not later, could lay to rest any concerns Ms. Stradeski harbours of her brother’s lack of capacity when he executed his Will.

That is true, but it also shows that she is conflating the two steps of the admittedly “rare” (as Justice Gerwing said in Ritchie ) and “unique” (as Justice Leurer said in Kyrylchuk ) proceedings when the validity of a will is called into question. The first step cannot be a fishing expedition into the documents of a third party to support a final resolution of Mr. Wionzek’s capacity. [ 70 ] Rule 5-15(1)(

c) expressly states that one of the conditions of ordering production of a third-party document is that they “might be required to produce it at trial.” Implicit in this requirement is that the application for production has been made when a trial is imminent. A trial is not imminent in Ms. Stradeski’s current application. Indeed, that is the issue – she must convince a judge that a trial is necessary. [ 71 ] I see little to distinguish Ms. Stradeski’s quest to obtain Mr. Wionzek’s medical records, whether from the Kowalyshyns or from the SHA.

Both attempts ignore the well-established proceedings to have a will proved in solemn form. I agree with Justice Richards (as he then was) in Ritchie (in dissent) that the court should eschew overcomplicating the first stage application because it risks frustrating the purpose of the will challenge procedure. He wrote at paras. 42 and 43: [42] … The first stage is concerned only with whether the circumstances warrant a trial.

It does not involve determining if the applicant’s case has been made out. [43] Unless that point is respected, it is very easy to slip into a situation where the benefit of a two-stage process is lost, i.e. the first stage will become more and more involved and will take on more and more of the character of a final inquiry into the validity of the will. The parties will be driven to file comprehensive affidavits. Reply affidavits and supplementary affidavits will be prepared in order to ensure every relevant fact is before the court. The parties will also feel pressure to cross-examine on the affidavits.

In other words, the first stage inquiry will tend to assume a good deal of the cost and complexity of a trial unless it is clearly understood that it is concerned only with determining whether the applicant has demonstrated the need for a trial. [ 72 ] Ms. Stradeski’s application to seek production of documents from the SHA triggers the dangers Justice Richards identified, even more so because she is involving a third party.

The courts have struck a balance between the interests of an unhappy disinherited person who wishes to explore the possibility of a trial to challenge the validity of a will and the interests of the executors and beneficiaries of an estate to conclude the administration and distribution of the estate. That balance has been set by the two-step proceedings, which does not include ordered production of documents from a third party. CONCLUSION [ 73 ] Ms. Stradeski’s application is dismissed. Costs in the usual amount are awarded in favour of the defendants. J. D.H. LAYH