WESLEY CHAMP, AS EXECUTOR FOR THE ESTATE OF GEORGE BARRY CHAMP APPLICANT - v. -, 2023 SKKB 122

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 122 Date: 2023 06 15 Docket: SUR-SA-00570-2017 Judicial Centre: Saskatoon BETWEEN: WESLEY CHAMP, AS EXECUTOR FOR THE ESTATE OF GEORGE BARRY CHAMP APPLICANT - and - DENNIS CHAMP RESPONDENT - and - THE ATTORNEY GENERAL FOR SASKATCHEWAN INTERVENER Docket: QBG-SA-00690-2022 Judicial Centre: Saskatoon BETWEEN: WESLEY CHAMP, AS EXECUTOR FOR THE ESTATE OF GEORGE BARRY CHAMP, DECEASED APPLICANT - and - DENNIS CHAMP RESPONDENT Counsel: Brittany M. Bezmutko for the applicant, Wesley Champ

Davin R. Burlingham for the respondent, Dennis Champ Noah S. Wernikowski for the intervener, The Attorney General for Saskatchewan ___________________________________________________________________________ FIAT CURRIE J. June 15, 2023 ___________________________________________________________________________ Introduction [ 1 ] This is an application for an order striking out a notice that was given under The Constitutional Questions Act, 2012 , SS 2012, c C-29.01 . Circumstances [ 2 ] The order and this application relate to the affairs of George Barry Champ.

For a few years Dennis Champ was power of attorney for George Barry Champ, and accordingly he dealt with George Barry Champ’s finances. When George Barry Champ died, Dennis Champ became executor of the estate. After a few years he renounced as executor, and Wesley Champ took over as executor. [ 3 ] In 2022, as executor, Wesley Champ applied to this court in two court actions. One action is SUR-SA-00570- 2017, relating to the administration of the estate.

The other action is QBG-SA-00690-2022, which Wesley Champ had commenced in pursuit of an accounting from Dennis Champ for the period in which Dennis Champ was power of attorney. [ 4 ] In both applications Wesley Champ sought an accounting from Dennis Champ – one for the power of attorney period and one for the estate period. The applications came before Justice Gerecke together.

On October 6, 2022, Justice Gerecke issued a fiat in both actions, writing: [1] This fiat addresses two applications made concurrently. [2] One is brought in respect of Dennis Champ’s role as power of attorney for the deceased, George Barry Champ [deceased] until his death on April 9, 2017.

The applicant seeks an accounting for all actions Dennis Champ took as power of attorney for the deceased, pursuant to s. 18.1 of The Powers of Attorney Act , 2002 , SS 2002, c P-20.3 . [3] The second concerns Dennis Champ’s role as executor of the deceased’s estate [estate] following his death until Dennis Champ renounced his duties as executor and was replaced pursuant to Danyliuk J.’s fiat dated June 25, 2020.

That application asks for an accounting to be ordered pursuant to The Trustee Act, 2009 , SS 2009, c T-23.01 , and Rules 16-50 and 16-52 of The Queen’s Bench Rules . [4] Both applications are clearly well-founded. … With respect to the time as power of attorney, Dennis Champ simply argued that it was a long time ago and it would be difficult to reconstruct events. … [6] The accountings are mandatory and must be done. … [7] In chambers I observed that it is appropriate that some de minimus approach be utilized so that Dennis Champ need not be required to explain each small and innocuous transaction.

The applicant did not disagree. I leave it to the parties to work that out. If they cannot, the matter may be returned to chambers for direction … [ 5 ] Justice Gerecke then set out details of his orders that Dennis Champ provide accountings, including an accounting for all actions that he took as power of attorney. He specified that he was making that order under s. 18.1 of The Powers of Attorney Act, 2002 , SS 2002, c P-20.3 . His order was taken out formally, and that formal order was served on Dennis Champ through his counsel. [ 6 ]

Section 18.1 of The Powers of Attorney Act, 2002 provides: 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. [ 7 ] Dennis Champ did not appeal from the order of Justice Gerecke. The appeal period for doing so has passed. Dennis Champ did not provide either accounting. Subsequently, as executor, Wesley Champ served notice of an application, in each action, for an order finding Dennis Champ in civil contempt. [ 8 ] Dennis Champ then served notice of his application for an order declaring that s. 18.1 of The Powers of Attorney Act, 2002 “is invalid, inapplicable or inoperable due to conflict with

Part 1 of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 .” The notice incorporates a notice under The Constitutional Questions Act, 2012 . Dennis Champ had not raised the validity of s. 18.1 before Justice Gerecke. [ 9 ] In response to having been served with that notice, the Attorney General for Saskatchewan brings the within application for an order striking out Dennis Champ’s notice as a collateral attack on an order of this court. Irregularity [ 10 ] For some time these two court actions have been travelling through the process together.

The two “accounting” applications were argued together before Justice Gerecke. He issued his fiat in both actions. Dennis Champ’s application to declare s. 18.1 invalid, though, is described as being in the estate action, SUR-SA-00570-2017.

Since the Attorney General’s application relates to Dennis Champ’s notice of application, the Attorney General likewise has brought this application in the estate action. [ 11 ] Strictly speaking, Dennis Champ’s application more appropriately would have been brought in the “power of attorney” action, QBG-SA-00690-2022, since the application relates to the statute that governs powers of attorney. [ 12 ] At the hearing of this application all the participants addressed the application without concern for this circumstance. That is the appropriate approach.

Given the history of these actions, including their interconnection and the addressing of the actions in concert, I find that it is an irregularity that the two applications are described as being in the estate action. I remedy that irregularity by directing that my decision here will issue in, and apply to, both actions. Collateral Attack [ 13 ] The Attorney General asserts that Dennis Champ’s notice should be struck out because the application identified therein constitutes a collateral attack on Justice Gerecke’s order.

Such a collateral attack, she argues, constitutes an abuse of the process of the court. [ 14 ] A “pleading or other document” may be struck out, under Rule 7-9(1)(

a) and 7-9(2)(

e) of The Queen’s Bench Rules , for being an abuse of process. Rule 7-9 provides: 7-9

(1) If the circumstances warrant and one or more conditions pursuant to subrule (2) apply, the Court may order one or more of the following: (

a) that all or any part of a pleading or other document be struck out; (

b) that a pleading or other document be amended or set aside; (

c) that a judgment or an order be entered; (

d) that the proceeding be stayed or dismissed.

(2) The conditions for an order pursuant to subrule (1) are that the pleading or other document: (

a) discloses no reasonable claim or defence, as the case may be; (

b) is scandalous, frivolous or vexatious; (

c) is immaterial, redundant or unnecessarily lengthy; (

d) may prejudice or delay the fair trial or hearing of the proceeding; or

(

e) is otherwise an abuse of process of the Court.

(3) No evidence is admissible on an application pursuant to clause (2)(a). [15] In BTA Real Estate Group Inc. v Kaiss, 2022 SKQB 50, Justice Mitchell reviewed the concept of collateralattack on a court order at paras. 21-22: 21 The Supreme Court of Canada most recently elaborated on the doctrine of collateral attack in R v Bird, 2019 SCC 7, [2019] 1 SCR409 as follows: [21] A collateral attack is an attack on an order "made in proceedings other than those whose specific object is the reversal,variation or nullification of the order" (Wilson v The Queen, (SCC), [1983] 2 SCR 594, at p 599; Canada (AttorneyGeneral) v.

TeleZone Inc., 2010 SCC 62, [2010] 3 SCR 585, at para. 60). This Court has recognized a general rule against collateralattacks on court orders: with limited exceptions, an order issued by a court must be obeyed unless it is set aside in a proceedingtaken for that purpose (Maybrun [ (SCC), [1998] 1 SCR 706], at paras 2-3; R v Litchfield, (SCC),[1993] 4 SCR 333, at p 349; Garland v Consumers' Gas Co., 2004 SCC 25, [2004] 1 SCR 629, at para 71). In Maybrun, the Court heldthat a different analysis was warranted for collateral attacks on administrative orders.

As I will explain, however, similar principlesunderlie both approaches.

(1) Collateral Attacks on Court Orders [22] There is a powerful rationale for the general rule precluding collateral attacks on court orders: . . . the rule seeks to maintain the rule of law and to preserve the repute of the administration of justice. To allow parties to govern theiraffairs according to their perception of matters such as the jurisdiction of the court issuing the order would result in uncertainty.

Further,"the orderly and functional administration of justice" requires that court orders be considered final and binding unless they are reversedon appeal . . . . (Maybrun, at para 2, quoting Litchfield, at p 349) . . . . . [24] In sum, two principles underlie the approach to collateral attacks on court orders: (1) the importance of maintaining the rule of lawand preserving the repute of the administration of justice; and (2) ensuring that individuals have an effective means to challenge courtorders, particularly when these orders are challenged on the basis that they are not Charter [Canadian Charter of Rights and Freedoms]compliant. . . . (Emphasis added) 22 Applications seeking to strike a pleading on the basis that it collaterally attacks a valid court order have succeeded because to permitthe action to proceed in those circumstances would be tantamount to an abuse of process.

See, for example: Ba-Oose Inc. v HSBC BankCanada, 2011 BCCA 511 at para 21, 314 BCAC 119, aff'd HSBC Bank Canada v Ba-Oose Inc., 2011 BCSC 4; and Canada (AttorneyGeneral) v Merchant Law Group LLP, 2017 SKCA 62 at paras 106-107, [2017] 10 WWR 664. [16] In R v Bird, 2019 SCC 7, [2019] 1 SCR 409, which was cited by Justice Mitchell, Justice Moldaver includedthese remarks at paras. 22-23: 22 … … As this Court noted in Maybrun, the rule against collateral attacks on court orders has been consistently applied in criminalproceedings where the charge involves an alleged breach of a court order (Maybrun, at para. 3, citing R. v.

Domm (1996), (ON CA), 31 O.R. (3d) 540 (C.A.), at p. 547, leave to appeal refused, [1997] 2 S.C.R. viii). The rule has also been applied wherethe accused alleges that the court order is unconstitutional. In Domm, Doherty J.A., writing for the Ontario Court of Appeal, held that "[e]ven orders that are constitutionally unsound must be complied with unless set aside in a proceeding taken for that purpose" (p. 549).As this Court explained in Canada (Human Rights Commission) v.

Canadian Liberty Net, (SCC), [1998] 1 S.C.R. 626,"[i]f people are free to ignore court orders because they believe that their foundation is unconstitutional, anarchy cannot be [page427] farbehind. The citizens' safeguard is in seeking to have illegal orders set aside through the legal process, not in disobeying them" (para. 51,citing McLachlin J. (as she then was), in Canada (Human Rights Commission) v. Taylor, (SCC), [1990] 3 S.C.R. 892, atp. 974).

23 The doctrine of collateral attack, however, recognizes that people must have an effective means to challenge court orders, particularly when those orders are alleged to violate constitutional rights. In Domm , Doherty J.A. clarified that "where constitutional rights are implicated, the court must be particularly concerned about the availability of an effective remedy apart from collateral attack when considering whether" to allow a collateral attack (p. 552).

Where a collateral attack is the only way to effectively challenge a court order, a collateral attack will be permitted ( see Domm , at pp. 553-54). [Emphasis added] [ 17 ] The sole purpose of Dennis Champ’s application for a declaration that s. 18.1 is invalid is to render Justice Gerecke’s order invalid. There can be no other purpose.

His goal is to defend the civil contempt application (which is based on his failing to obey Justice Gerecke’s order) by establishing that the order itself is invalid because it was based on an invalid statutory provision. [ 18 ] Dennis Champ argues, though, that his application is not an attack on Justice Gerecke’s order. Rather, he says, his application is consistent with the order.

In so saying he points to para. 7 of Justice Gerecke’s fiat: [7] In chambers I observed that it is appropriate that some de minimus approach be utilized so that Dennis Champ need not be required to explain each small and innocuous transaction. The applicant did not disagree. I leave it to the parties to work that out. If they cannot, the matter may be returned to chambers for direction … [ 19 ] In para. 7, says Dennis Champ, Justice Gerecke found that s. 18.1 is overbroad in that it fails to provide for a de minimus range, to accommodate a practical approach. Dennis Champ agrees that s. 18.1 is overbroad.

This agreement, he says, explains both why he did not appeal and why he is applying for a ruling that s. 18.1 is invalid. [ 20 ] In fact, Justice Gerecke did not find that s. 18.1 is overbroad. He merely suggested a practical approach to how Dennis Champ could comply with s. 18.1 . Furthermore, Dennis Champ’s application for a ruling that s. 18.1 is invalid is not consistent with Justice Gerecke’s order, because Justice Gerecke made that order expressly based on s. 18.1 . [ 21 ] The Attorney General is correct.

Dennis Champ’s application for a declaration that s. 18.1 is invalid is “an attack on an order ‘made in proceedings other than those whose specific object is the reversal, variation or nullification of the order’" ( Bird , para 21 ). That is: (

a) it is an attack on Justice Gerecke’s order in that its sole purpose is to render that order invalid; (

b) in attacking the order, Dennis Champ is not using proceedings “whose specific object is the reversal, variation or nullification of the order”, namely the appeal process; and (

c) instead, Dennis Champ is using proceedings “other than” such proceedings, namely his application for a ruling that s. 18.1 – which is the statutory basis for Justice Gerecke’s order – is invalid. [ 22 ] As described at para. 22 of BTA Real Estate , Dennis Champ’s application is an abuse of the process of the court. I order that Dennis Champ’s notice of application is struck out under Rule 7-9(2)(

e) on the basis that the application identified therein is an abuse of the process of the court. Costs [ 23 ] Typically, the successful party on an application is awarded costs. Here, though, the Attorney General does not ask for costs, in keeping with a practice by which the Attorney General neither pays nor is awarded costs on applications in which she intervenes in response to being served with notice of a constitutional question. Accordingly, I do not order Dennis Champ to pay costs to the Attorney General. [ 24 ] Wesley Champ also participated in this application, in response to being served with notice.

His participation was appropriate since the application relates, ultimately, to enforcement of Justice Gerecke’s order and to Dennis Champ’s obligation to provide an accounting to the estate. Wesley Champ’s participation in the application was minimal, though. His position essentially was to declare support for the Attorney General’s position. Nonetheless, he was successful in the position that he took on the application. [ 25 ] It was not Dennis Champ, however, who brought this application. He is not the party who caused the estate to incur the expense of having counsel participate.

Therefore, while it was appropriate for Wesley Champ to participate through counsel, and while he was on the successful side, it is not appropriate for Dennis Champ to pay costs of this application to the estate. Nor, as noted above, is it appropriate for the Attorney General to pay costs to the estate. [ 26 ] In the end, each party will bear his or her own costs of this application. Conclusion [ 27 ] The application is granted. Dennis Champ’s notice of application dated April 10, 2023, regarding the validity of s. 18.1 of The Powers of Attorney Act, 2002 , is struck out under Rule 7-9(2)(

e) of The Queen’s Bench Rules on the basis that the application identified therein is an abuse of the process of the court. [ 28 ] Each party will bear his or her own costs of this application. ______________________________J.

G.M. CURRIE