DARCY LESLIE QUINN REANEY v. HEATHER LYNETTE REANEY, 2023 SKKB 60

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 60 Date: 202 3 03 22 Docket: QBG-RG-01949-2022 Judicial Centre : Regina BETWEEN: DARCY LESLIE QUINN REANEY and HEATHER LYNETTE REANEY APPLICANTS - and - KELSEY DAWN FRADETTE, and KELSEY DAWN FRADETTE in her capacity as executor for COLIN JAMES REANEY, FARM CREDIT CANADA RESPONDENTS Counsel: Jean-Pierre Jordaan for the applicants Michael R. Weger for the respondents FIAT BERGBUSCH J. March 22, 2023 introduction [ 1 ] Darcy Reaney [Darcy] and Heather Reaney [Heather] have commenced an action by originating application pursuant to Rule 3-49 of The Queen’s Bench Rules and ss. 107 (

d) and (

e) and s. 109 of The Land Titles Act, 2000 , SS 2000, c L-5.1 [ LTA ]. They seek an order that the beneficial interest in a quarter

section of land vest in them as joint tenants and authorization to apply to the Registrar of Titles to transfer title to the quarter

section into their names. Darcy and Heather claim that they transferred the quarter

section to their son Colin Reaney [Colin] or [CJ] (who has since died) as a “loan” of property to assist him to obtain financing so that he could acquire two additional quarters, and that he agreed to return the property to them. They contend that the facts are uncomplicated and that the court can exercise its discretion to grant the requested relief summarily. [ 2 ] The respondent, Kelsey Fradette [Kelsey], on her own behalf and as the executor for the estate of Colin Reaney, opposes the relief sought and asks that the application be dismissed. Kelsey’s position is that the quarter

section was a gift and it now forms part of Colin’s estate. [ 3 ] Farm Credit Canada [FCC] is named as a respondent to the application but was not represented at the hearing and takes no position regarding the relief sought by the applicants. [ 4 ] For the reasons which follow, the dispute between the parties cannot be decided summarily under s. 109 of the LTA . There are contested questions of fact and law that can only be determined fairly and justly following a trial of the issue. Background [ 5 ] Darcy and Heather are the parents of Colin, who died on May 1, 2021, in a motor vehicle accident.

[ 6 ] Kelsey was Colin’s common law spouse. They began living together in the summer of 2005 and had three children together. [ 7 ] In May 2014, Colin wanted to purchase two quarters of land but he did not own enough property to provide adequate security for a loan. Darcy and Heather transferred title to SW 32-6-21-W2, Surface Parcel #108727498 [Land] to him, which he then pledged as collateral for a mortgage from FCC. Title to the Land was registered in Colin’s name only. According to Kelsey, Colin confirmed to FCC that he would be the legal and beneficial owner of the Land.

An FCC mortgage is registered as the first charge against title to the Land. [ 8 ] The FCC mortgage remained outstanding at the time of Colin’s death. Mortgage life insurance was not paid out “due to circumstances of the car accident that ultimately claimed CJ’s life.” (Affidavit of Kelsey Dawn Fradette sworn October 4, 2022 at para. 6). Colin also owed other debts in excess of $50,000 when he died. [ 9 ] Colin made a last will and testament dated September 8, 2011, appointing his mother Heather as the executor, with Kelsey named as the alternate, and leaving his estate to Heather and Kelsey in equal parts.

After Colin’s death, Heather renounced her appointment as executor and Kelsey applied for a grant of letters probate. [ 10 ] As executor of Colin’s estate, Kelsey made arrangements to sell real property owned by Colin, including the Land, in order to pay the estate’s debts. The Land was listed for sale through Mack Auction Company Ltd. in mid-July 2022. [ 11 ] Darcy and Heather claim that they are the beneficial owners of the Land, and that Kelsey has acknowledged as much. They say Kelsey has refused to transfer title to the Land back to them unless Heather abandons her entitlement to half of Colin’s estate.

They point to a text message sent by Kelsey to Heather, which reads, in part: … Unless you come in and sign off on the will as a beneficiary I will also be selling yours and Darcy’s land in the auction as well.

There are also other moves I will be making as well unless you sign off as a beneficiary. … Kelsey responds that she was simply following a common practice among farmers to describe land by the name of a former or long-time owner and denies that she meant anything more when she referred to the property as “yours and Darcy’s land.” [ 12 ] Kelsey says that Darcy and Heather have wanted the Land since Colin died and she had her lawyer contact Heather several times to inquire if she wanted to make a proposal to buy the Land from the estate or to arrange with FCC to assume part of the mortgage. [ 13 ] On August 8, 2022, Darcy’s lawyer wrote to Mack Auction Company Ltd., advising that his client claimed an ownership interest in the Land and asking the auctioneer to confirm it would not proceed with an auction sale.

Kelsey’s lawyer responded to this correspondence on August 9, 2022, indicating that Darcy and Heather had long been aware of the planned auction and that they had not substantiated their claim to an interest in the Land. [ 14 ] In response, Darcy’s lawyer sent a copy of a “loan agreement” [Agreement], a handwritten document that Darcy and Heather say is an agreement they entered into with their son on June 2, 2014 regarding the land.

The document reads: June 2 – 2014 I Darcy Reaney, Im Loaning Colin Reaney one Quarter of land for purchasing 2 quarter of Land from Bill Tartarliov. not to be sold with out Darcy and Heather ok. and returned when Done. [Errors in original] Below this text the names of each of Darcy, Heather, and Colin are printed, and signatures appear to the right of their printed names. Darcy attests that he drafted the Agreement and witnessed Colin signing it.

Heather says that she was not present when Colin signed the Agreement but believes it was fully executed on or about June 2, 2014, and she has “no reason to suspect that the CJ’s signature is not authentic.” (Affidavit of Heather Lynette Reaney sworn November 24, 2022 at para. 5). [ 15 ] Kelsey disputes the authenticity of Colin’s signature, as well as the entire Agreement. Kelsey says that she does not recognize the signature on the Agreement to be Colin’s, a signature that she had witnessed many times throughout their relationship. Kelsey says that she saw the agreement for the first time on August 9, 2022.

She claims no one ever discussed with her that the Land was not a gift to Colin or that title to the Land would have to be returned to Darcy and Heather someday. [ 16 ] On August 10, 2022, Darcy’s lawyer sent a copy of the Agreement to Brian Mack of Mack Auction Company Ltd., along with the text message that allegedly confirms Kelsey knows the land belongs to Darcy and Heather. Mr. Mack responded as follows: Why did your clients wait till the final hour to interfere with the sale? They have known for a long time that Kelsey was going to sell the land. Land titles show that The Estate of Colin J.

Reaney is the registered owner of the land in question. The sale will proceed with the permission of Kelsey Fradette and the Estate lawyer. [ 17 ] In an affidavit sworn November 24, 2022, Darcy attempts to explain the applicants’ delay in raising this issue in two ways. First, he says that he did not provide a copy of the Agreement to his previous counsel because he had forgotten about it: 12. …The document was signed back in 2014, and it slipped our minds. It was only after my current lawyer asked me if any agreements or documents were signed back when the land was transferred that we remembered about it.

We found it, and it was forwarded to our lawyer.

Second, he put in evidence a partly redacted letter from his previous counsel dated July 13, 2022, in which she recommended issuing a statement of claim and registering a certificate of pending litigation. He alludes to a dispute over legal fees and says he provided a copy of the Agreement to his new counsel shortly thereafter. [ 18 ] The auction sale took place on August 10, 2022.

An offer was received to purchase the Land for $130,000, and a deposit for 10% of the purchase price was paid to the estate’s lawyer in trust. [ 19 ] On August 11, 2022, Darcy and Heather caused a miscellaneous interest to be registered against title to the Land, claiming an ownership interest under an Agreement dated June 2, 2014 between Darcy, Heather, and Colin. [ 20 ] On August 17, 2022, Darcy and Heather caused a certificate of pending litigation to be issued by the Regina local registrar’s office. [ 21 ] Kelsey retained a forensic document examiner, Brenda Petty, who provided an informal opinion on August 26, 2022, that the signature of Colin on the Agreement was “not genuine.” Ms.

Petty subsequently completed a forensics report dated October 1, 2022. After comparing nine examples of Colin’s signature to the signature on the Agreement, she opined that the “questioned signature labelled as Q1 was written by a different hand than wrote the comparison signatures of Colin Reaney.” (Brenda Petty October 1, 2022 report at para. 20(A)). [ 22 ] Darcy takes issue with several factual assumptions made by Ms. Petty in her report. For example, Ms. Petty observed that the signature on the Agreement differed from other comparison samples because it was underlined.

Darcy says that he drew the line to show where Colin had to sign the Agreement and it was not part of his signature. Issues [ 23 ] The principal issue is whether the originating application can be determined on the basis of the affidavit evidence, or whether a trial of the issue should be ordered. The applicants have also objected to the admission of expert opinion evidence, which I will address as a preliminary issue. Discussion A.

Preliminary Issue: Admissibility of Forensic Report of Brenda Petty [ 24 ] The parties spent considerable time in argument addressing the admissibility of the respondents’ expert evidence. As I have concluded that the issues in dispute must proceed to trial, I will only comment on this objection briefly. [ 25 ] The applicants say that the affidavit of Brenda Petty, and the attached reports containing her opinion regarding the authenticity of Colin’s signature on the Agreement, are inadmissible because she did not comply with Rule 5-37 of The Queen’s Bench Rules .

Specifically, they say that she failed to certify that: (1) she is aware of her duty to provide objective and non-partisan testimony about matters within her expertise; and (2) that she made her report in conformity with this duty. The applicable rule reads: 5-37

(1) In giving an opinion to the Court, an expert appointed pursuant to this Division by one or more parties or by the Court has a duty to assist the Court and is not an advocate for any party.

(2) The expert’s duty to assist the Court requires the expert to provide evidence in relation to the proceeding as follows: (

a) to provide opinion evidence that is objective and non-partisan; (

b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and (

c) to provide any additional assistance that the Court may reasonably require to determine a matter in issue.

(3) If an expert is appointed pursuant to this Division by one or more parties or by the Court, the expert shall, in any report the expert prepares pursuant to this Division, certify that the expert: (

a) is aware of the duty mentioned in subrules (1) and (2); (

b) has made the report in conformity with that duty; and (

c) will, if called on to give oral or written testimony, give that testimony in conformity with that duty. [ 26 ] The applicants rely upon Ward v Anderson Estate , 2021 ONSC 8337 at para 80-82 [ Ward ], in which the Ontario Superior Court held an expert opinion to be inadmissible because, inter alia , it failed to comply with the similar Ontario Rule. In that case, the applicant tendered in evidence two reports authored by Brenda Petty (the same expert retained by the respondent in the present case).

The learned judge rejected the reports for several reasons, including that the reports were attached to the applicant’s affidavit, not an affidavit from Ms. Petty confirming the contents of her reports, and that the reports did not include the expert’s acknowledgment of her duty, as required by Rule 53.03 of the Ontario Rules of Civil Procedure , RRO 1990, Reg 194 .

Gilmore J. concluded at para. 82, “This alone is fatal to the acceptance of the report apart from the other issues raised above.” [ 27 ] Expert witnesses must be aware of and willing and able to carry out their primary duty to provide fair, objective, and non-partisan evidence: White Burgess Langille Inman v Abbott and Haliburton Co. , 2015 SCC 23 at para 46 , [2015] 2 SCR 182 [ White Burgess ] .

Once the expert attests or testifies that they are able to fulfil this duty, the burden shifts to the party opposing admission to show a realistic concern that the expert is unable or unwilling to comply with it: White Burgess at para 48 . [ 28 ] In this case, the applicants object to the admissibility of Ms. Petty’s reports only on the ground that they do not

contain a rote recitation of the certification specified by Rule 5-37 of The Queen’s Bench Rules . At para. 2 of her forensic report, Ms. Petty comments on her role as a certified questioned document examiner in the following terms: 2. ... I am not an advocate of the person who uses my services; I speak for the document. My opinions are formed through a careful examination of the documents with a determined caution that bias is not a contributing factor to the opinion. [ 29 ] Under the heading, “Declaration,” Ms. Petty’s report includes the following statements: 23.

I understand that my overriding duty is to the court both in preparing reports and in giving oral evidence. 24. I have set out in my report what I understand from those instructing me to be the questions in respect of which my opinion as an expert is required. 25. I have done my best, in preparing this report, to be accurate and complete. I have mentioned all matters which I regard as relevant to the opinions I have expressed. All the matters on which I have expressed an opinion lie within my field of expertise. 26.

I have drawn to the attention of the court all matters, of which I am aware, which might adversely affect my opinion. 27. Wherever I have no personal knowledge, I have indicated the source of factual information. 28. I have not included anything in this report which has been suggested to me by anyone, including the client or lawyers instructing me, without forming my own independent view of the matter. It is always my intent to conduct every examination without personal influence or bias. 29. Where in my view, there is a range of reasonable opinion; I have indicated the extent of that range in my report. 30.

At the time of signing the report I consider it to be complete and accurate. I will notify those instructing me if, for any reason, I subsequently consider that the report requires any correction or qualification. 31. I understand that this report will be evidence that I will give under oath, subject to any correction or qualification I may make before swearing to its veracity. 32. I believe that the facts I have stated in this report are true and that the opinions I have expressed are correct. Ms.

Petty signed her report immediately following this series of declarations. [ 30 ] On their face, these statements suggest Ms. Petty understood her duty to the court to provide opinion evidence that is objective, non-partisan, and limited to her area of expertise. Unlike the Ontario Rules of Civil Procedure , The Queen’s Bench Rules do not prescribe a form of acknowledgement to be completed by an expert. While it would have been preferable for Ms.

Petty to include in her report a direct statement of her duty using the formulation in Rule 5-37 of The Queen’s Bench Rules , her declarations appear to be the functional equivalent thereof. In short, because of the differences between the Saskatchewan and Ontario rules, I would not follow Ward by rejecting Ms. Petty’s expert opinion outright, as the applicants’ lawyer urges. [ 31 ] Darcy and Heather brought their application summarily, relying on affidavit evidence, and they did not apply to cross-examine Ms. Petty on her qualifications or the substance of her opinion. The applicants challenge some of Ms.

Petty’s factual assumptions about Colin’s signature, but those facts are themselves contested. Questions could be put to Ms. Petty to test her assumptions about Colin’s signature and to see whether different assumptions would cause her to reconsider her ultimate conclusion. I am not in a position to resolve these factual disputes. As discussed below, I have concluded that the present application cannot be decided summarily and a trial is required. Ms. Petty’s opinion that Colin’s signature is not authentic is one factor, among many, that militates against a

summary disposition. I have considered Ms. Petty’s forensics report for the limited purpose of determining whether a trial is required. To avoid any misunderstanding as this matter progresses, I make no ruling about the ultimate admissibility of Ms. Petty’s expert opinion, which is left to the judge who hears this matter on the merits. B. Application Under Sections 107 and 109 of the LTA [ 32 ] As noted above, Darcy and Heather apply for relief pursuant to ss. 107 (

d) and (

e) and 109 of the LTA , which read in relevant part: 107(1) Any person may apply to the court for an order with respect to: … (

d) any application respecting land or an interest in land; or (

e) any application respecting a transaction or contract relating to land or to an interest in land. … 109(1) In any proceeding pursuant to this Part, the court may make any order the court considers appropriate, and in so doing may direct the Registrar to, or authorize any person to apply to the Registrar to: (

a) register, discharge, amend, postpone or assign an interest; or (

b) transfer title or make changes to a title.

(2) The court may seek assistance from the Registrar in any proceeding pursuant to this Part.

(3) On an application to the court pursuant to this Part, if the judge hearing the application considers it appropriate to do so, the judge may make an order: (

a) directing that a title be vested in any person; and (

b) either: (

i) directing the Registrar to transfer title or to make changes to a title; or (ii) authorizing any person to apply to the Registrar to transfer title or to have changes made to a title.

(4) An application for an order pursuant to subsection (3) may be made: (

a) on any notice that the court considers appropriate; or (

b) without notice if, in the court’s opinion, the circumstances warrant it. [ 33 ] The applicants have initiated this proceeding by originating application in Form 3-49 of The Queen’s Bench Rules . According to their brief of law, they rely upon the following paragraphs of Rule 3-49 in bringing this application: 3-49(1) An action may be started by originating application if the remedy claimed is: (

a) the opinion or direction of the Court on a question affecting the rights of a person with respect to the administration of the estate of a deceased person or the execution of a trust ; (

b) an order directing executors, administrators or trustees to do or abstain from doing any particular act with respect to an estate or trust for which they are responsible ; … (

d) the determination of rights that depend solely on the

interpretation of : (

i) a deed, will, contract or other instrument; or (ii) an enactment, order in council or municipal bylaw or resolution; (

e) the declaration of an interest in or charge on land , including the nature and extent of the interest or charge or the boundaries of the land, or the settling of the priority of interests or charges; … [underlining reproduced from the applicants’ brief of law] Rule 3-49(2) of The Queen’s Bench Rules permits an action to be started by originating application if an enactment authorizes or requires an application to be used. [ 34 ] Recently, in Hildebrand v Hattum , 2021 SKQB 136 [ Hildebrand ], Brown J. addressed whether he could decide an application under s. 109 of the LTA on the basis of affidavit evidence or whether it was necessary to order a trial.

He reviewed a series of decisions of this Court in

summary proceedings commenced by originating application. A common thread was the culture shift signalled by the Supreme Court in Hryniak v Mauldin , 2014 SCC 7 , [2014] 1 SCR 87, which was intended to foster greater access to justice through the simplification of pre-trial procedures and the use of proportional procedures tailored to the needs of individual cases: see, e.g., Dyck v JCL Property Management Ltd. , 2014 SKQB 274 at paras 28 , 34, and 36 , 454 Sask R 238 [ Dyck ]; Kassian v Dynamic Glass & Door Ltd., 2017 SKQB 22 at para 18 ; Veitch v Wollf , 2017 SKQB 252 at para 11 [ Veitch ].

In Dyck and Veitch , as factual differences were limited and credibility was not a significant issue, the judges found that they could make a fair and just determination in a

summary proceeding. [ 35 ] However, in cases where the court can only determine the facts by weighing conflicting evidence and evaluating the credibility of witnesses, a trial will usually be required: see, e.g., McStay v Berta Estate , 2021 SKCA 51 at para 50 , 458 DLR (4th) 106, cited in Hildebrand at para 42 . Brown J. summarized the approach to be followed in Hildebrand at para 44 : [44] The modern context established by the authorities which have interpreted the new originating application Rules have provided a framework from which to determine the way forward.

It is accepted that a chambers judge considering an originating application is entitled to make findings of credibility based on disputed affidavit evidence in some originating application-based matter. However, the primary basis on which this should proceed is that there is a sufficient amount of confidence given the evidence presented, the issues undecided, and the scale of the interests at stake that a fair and just determination can be made without additional procedural requirements such as exchange of documents, questioning or viva voce evidence.

With this goal in mind the issues should be considered in the context of the evidence advanced and the applicable law. In cases where facts and credibility are disputed, a review of court decisions shows no clear dividing line between actions commenced by originating applications that can be decided summarily and those which require a trial. The overriding concern is whether the court can make a fair and just determination in the circumstances. [ 36 ] To determine whether a

summary disposition is appropriate in the present case, I will briefly review the nature of the action. The applicants contend that the Land is subject to a voluntary transfer resulting trust. They claim the Agreement demonstrates that they lacked donative intent when they transferred title to their son. The common law presumption of a resulting trust in the case of gratuitous transfers does not apply in Saskatchewan and voluntary transfer resulting trusts are only recognized if certain conditions are met. As the Court of Appeal explained in Dunnison Estate v Dunnison , 2017 SKCA 40 at para 123 , [2017] 8 WWR 18

[Dunnison]: [123] In

summary, the law in Saskatchewan may be expressed as follows: (

a) voluntary transfer resulting trusts will be recognized with respect to land but not the presumption that land is held in trust when it istransferred gratuitously; (

b) proving the existence of a resulting trust is a matter of proving the transferor’s lack of donative intent; (

c) the relevant time for proving intention is the time of transfer – subsequent evidence is relevant but it must relate to the transferor’sintent at the time of transfer and cannot be self-serving; and (

d) the Statute of Frauds does not apply to resulting trusts. [37] The types of evidence admissible to determine whether the transferor had donative intent will depend upon thefacts of the case: Dunnison at para 113. Evidence of events subsequent to the transfer may be relevant in determining what thetransferor’s intention was when the transfer took place, but it may also be self-serving or consistent with a change of intent: Dunnison atparas 112 and 116. [38] There is no question in this case that the Land was transferred for no consideration.

The issue is whether theapplicants can prove a lack of donative intent at the time of transfer. They assert that the Agreement establishes they did not intend togive the property to Colin when they transferred it to him and that beneficial ownership remained with them. Thus, they say, theAgreement created a trust relationship, even if clear words to that effect were not used in the document. [39] In support of their position that the Agreement is enforceable as a trust and that s. 109 of the LTA permits thisissue to be decided summarily, they rely upon Schramm v Schramm, 2017 SKQB 212 [Schramm].

In that case, a mother who hadtransferred five quarters of farmland to her son and herself as joint tenants applied by originating application for an order directing herson as trustee under the trust declaration to transfer the titles back into her name alone. The trust declaration stated that the transfer oftitle in joint names was for estate planning purposes and was not intended to confer any immediate benefit on her son. Further, in the trustdeclaration, the son acknowledged that his mother was the sole beneficial owner of the land and that he held the ownership interest intrust for her during her lifetime.

The learned chambers judge concluded that he could give effect to the clear intentions expressed in thetrust declaration, and he directed the Registrar of Titles to transfer title to the five quarters into the mother’s name as sole owner,pursuant to s. 109 of the LTA. In doing so, the chambers judge rejected the son’s position that all matters be directed to trial. [40] Schramm is distinguishable on its facts from the present situation. First, and foremost, in Schramm the validityof the trust declaration was not disputed.

Second, the trust declaration in Schramm was drafted by a lawyer and its meaning was clear. [41] In its recent decision in Burnouf v Burnouf, 2022 SKCA 6, 466 DLR (4th) 521 [Burnouf], the Court of Appealaddressed the scope of the court’s authority under s. 109 of the LTA. During the course of her analysis, Schwann J.A. noted that thedecision in Schramm did not address whether a

summary application under s. 109 of the LTA had been the appropriate process, likelybecause the parties did not raise this issue: Burnouf at para 41. For this reason as well, the Schramm decision does not advance theapplicants’ position in the present case. [42] Burnouf concerned the enforceability of an alleged verbal gift of land from a mother to her son, which conflictedwith a subsequently executed trust agreement where the son agreed to hold the land as trustee for his mother. The mother applied byoriginating application for an order removing her son from title in reliance on s. 109 of the LTA.

The son sued to enforce the allegedverbal gift of two of the three properties and applied for the two proceedings to be consolidated and for a trial of the issues. Thechambers judge held that the mother’s application could be determined without a trial and directed the Registrar of Titles to remove herson’s name from title to the two properties.

On appeal the issue was whether the chambers judge erred by granting a vesting order andordering the removal of the son’s name from title summarily, under s. 109 of the LTA, instead of ordering a trial. [43] As Schwann J.A. explained, s. 109 of the LTA is a “curative provision that empowers the Court of Queen’sBench to direct the Registrar to transfer title to land, make changes to title or vest title in a person”: Burnouf at para 31.

The court’spower under this provision is discretionary, but that discretion must be exercised in a manner consistent with the fundamental principlesof the LTA as a whole: Farm Credit Canada v Gherasim, 2016 SKQB 182 at para 14, cited in Burnouf at para 33. [44] Schwann J.A. observed that courts have been reluctant to determine summarily the validity of interestsregistered against title to land under s. 109 of the LTA when faced with conflicting evidence or an arguable issue.

She concluded inBurnouf at para 35, that this approach should be extended to applications that seek final determination of a dispute over land ownership: [35] The cases to date that have dealt with an application for a remedy under s. 109 reveal a hesitancy on the part of the Court of Queen’sBench to decide matters summarily when faced with conflicting evidence or an arguable issue: Royop Corporation v CasablancaHoldings Inc., 2007 SKQB 86, 294 Sask R 132, and Kuderewko v Kuderewko, 2019 SKQB 206, aff’d 2020 SKCA 22, are examples ofsuch reticence.

Although many of those decisions concern an application to remove an interest registered against land, I am satisfied thatthe principle should extend to situations like the present, where an application for a vesting order under s. 109 of the LTA calls for a finaldetermination of a dispute about ownership of land. … [45] As a general rule, s. 109 of the LTA applications should be decided by an action and trial rather than summarilywhere “there is an arguable issue and a conflict of evidence as well as some complexity to the evidence and the law …”: Block v SceptreResources Ltd. (1989), (SK CA), 73 Sask R 68 (CA) at para 6 [Block], cited in Burnouf at para 37.

Blockcontemplated some exceptions, such as where the parties agree a matter can be decided on affidavit evidence, or where the facts aresimple and not disputed: Burnouf at para 37. [46] In Burnouf at paras 42 and 43, Schwann J.A. distilled the approach to s. 109 of the LTA as follows:

[42] What principles can be drawn from this jurisprudence? First, s. 109 is a curative provision. It may be employed to rectify errors and, generally speaking, permits a court to make any order considered appropriate. However, s. 109 must be exercised in a manner consistent with the principles that underlie the LTA as a whole. Most importantly to this application, a court should be hesitant to exercise its powers under s. 109 for a vesting order in the context of an interim application where there is complexity in the law and the evidence.

To some degree, at least, this hesitancy appears to be rooted in an understanding that a trial is the proper forum to determine issues relating to interests in land. [43] Where a s. 109 application raises a bona fide question of law, or raises a genuine issue that cannot be fairly and justly resolved by affidavit evidence alone, a court should not proceed summarily. In determining whether to proceed summarily, a court must consider the following: (

a) the nature and degree of the dispute between the parties; (

b) the completeness and complexity of the evidence; and (

c) the complexity of the legal issues involved. Where there is agreement as to the facts, or the matter before the Court is a simple one,

summary disposition may be appropriate. However, as observed in Block , these cases are rare; and, as I go on to discuss below, this was not such a case. [ 47 ] In keeping with the guidance of the Court of Appeal in Burnouf , I have concluded that a trial is the proper forum to resolve the dispute between the parties. I have reached this conclusion for the following reasons. [ 48 ] First, however broad the scope of the court’s authority under Rule 3-49 of The Queen’s Bench Rules , I doubt it extends to deciding whether an agreement is forged or not. This goes well beyond determining the rights of parties through the

interpretation of a contract. By its very nature, an allegation of forgery seems unsuited to

summary determination by originating application. I should note that, when the applicants commenced this proceeding, they may not have anticipated an allegation of forgery. [ 49 ] Second, the dispute over the Agreement’s authenticity involves contentious issues of fact, credibility, and law. Darcy attests that he wrote the Agreement and witnessed Colin’s signature. Heather says that she signed the Agreement contemporaneously but concedes she was not present when Colin allegedly signed it.

The applicants’ disclosure of the Agreement on the eve of the auction sale raises suspicion, as does Darcy’s explanation that he had forgotten the Agreement’s existence. Kelsey attests that she was not aware of the Agreement until her lawyer received a copy on August 9, 2022, and that Colin did not mention its existence to her.

However, Kelsey has referred to the property as “yours and Darcy’s land.” Cross-examination on these points and others would assist the trier of fact. [ 50 ] The respondents have adduced expert opinion evidence that Colin’s signature is not authentic, but the admissibility and reliability of the expert’s opinion is contested. The applicants argue that, where forgery is alleged, the onus is on the person making the allegation and clear and cogent evidence is required, citing Bank of Montreal v Chan , 2004 BCSC 841 at para 24 , 23 RPR (4th) 172.

Whether the respondents can satisfy this onus through expert opinion and other evidence is a live issue. If the report is admissible, Darcy and Heather say that it should be given no weight, on the grounds that the expert did not review original documents and made several incorrect factual assumptions about Colin’s signature. However, these points could be put to Ms. Petty in cross- examination to see whether they affect her bottom-line conclusion that Colin did not sign the document. [ 51 ] Third, the evidence is incomplete.

The respondents suggest that Colin farmed the Land as though it belonged to him, which may be inconsistent with the applicants’ beneficial ownership or their assertion that they transferred title to Colin only so that he could use it to obtain mortgage financing from FCC. Evidence of Colin’s farming operation and his dealings with FCC, including his credit application, mortgage agreement, and other documents, may be relevant. [ 52 ] Fourth, assuming the Agreement is genuine, its

interpretation and enforceability are not obvious. Did the parties have a common understanding of the contract? What did they mean by the phrases “Loaning … one Quarter of land” and “not to be sold with out Darcy and Heather ok”? How should the phrase, “returned when Done” be interpreted? Was Colin obliged to transfer title back when the FCC mortgage had been discharged? When he no longer needed the Land as part of his farming operation? Evidence of the surrounding circumstances known to the parties at the time the Agreement was entered into may aid in its

interpretation: Sattva Capital Corp. v Creston Moly Corp ., 2014 SCC 53 at para 47 , [2014] 2 SCR 633. Again, the record presently before the court is inadequate. [ 53 ] Fifth, the applicants bear the onus of disproving that they had a donative intent when the land was transferred. Title to the Land was transferred into Colin’s name on about May 26, 2014, but the exact date is not in evidence. It appears that the transfer took place before the date of the Agreement (June 2, 2014).

This raises the question whether the Agreement is evidence of the applicants’ intention at the date of the transfer or whether they changed their minds after the fact. [ 54 ] Sixth, the original of the Agreement, the central document in this case, is not properly filed in evidence. As noted above, the applicants fault Ms. Petty for not having based her opinion on original documents. On December 7, 2022, Darcy and Heather’s lawyer sent a letter to the court, enclosing a document described as the original of the Agreement.

While this document appears to match the copy of the Agreement marked as an exhibit to Darcy Reaney’s affidavit, it is not attached as an exhibit to an affidavit. Pursuant to Rule 3-55 of The Queen’s Bench Rules , the court may not consider evidence filed in this way. In any event, if this document is the original Agreement, it is now available for expert review. [ 55 ] The applicants raised other concerns.

They argue that the text message Kelsey sent to Heather, threatening to sell “yours and Darcy’s land” unless Heather “signed off,” was coercive and violated her duties as executor of Colin’s estate, referring to Geran v Geran Estate , 2022 SKCA 143 at para 54 , 475 DLR (4th) 446. They also question whether Kelsey has exceeded her authority by purporting to authorize a sale of the Land without Heather’s consent as a beneficiary of the estate.

Whether this is so depends upon a consideration of ss. 50.4 and 50.5 of The Administration of Estates Act , SS 1998, c A-4.1 , in the context of matters such as the indebtedness of the estate which are not in evidence. Concerns about Kelsey’s administration of the estate are beyond the scope of the

originating application and I do not need to comment on them further. [ 56 ] The respondents invite the court to dismiss the application and order that the miscellaneous interest be discharged from title so that the pending sale of the Land can be completed. That is also not appropriate in the circumstances. Conclusion [ 57 ] There is a genuine issue for trial whether the transfer of the Land by Darcy and Heather to their son was a gift. The only evidence before the court consists of their assertions to that effect and the impugned Agreement. The authenticity and

interpretation of the Agreement are contentious matters. This dispute cannot be fairly and justly determined based only upon the evidence and materials submitted for chambers. Viva voce evidence with cross-examination is required. [ 58 ] The applicants will be the plaintiffs at the trial and lead their evidence first. The respondents will be the defendants. The parties did not make submissions about any procedural steps that should be taken prior to trial, such as documentary disclosure, questioning, or a pre-trial conference.

If they cannot agree on the procedure to be followed, either party has leave to apply to me for an order settling the procedural steps, on seven days’ notice to the other side. [ 59 ] Costs of this application shall be in the cause. J. P.T. BERGBUSCH