SHIRLEY GRACE CHRISTIANSON, as Executor of the Estate of EDITH LOUISE CHRISTIANSON PLAINTIFF (DEFENDANT BY COUNTERCLAIM) - v. -, 2022 SKKB 269

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 269 Date: 2022 12 13 Docket: QBG-SA-01776-2019 Judicial Centre: Saskatoon BETWEEN: SHIRLEY GRACE CHRISTIANSON, as Executor of the Estate of EDITH LOUISE CHRISTIANSON PLAINTIFF (DEFENDANT BY COUNTERCLAIM) - and - RAQUEL TESS RICHARDSON and KIMBERLY ANN CHRISTIANSON DEFENDANTS (PLAINTIFFS BY COUNTERCLAIM AND PLAINTIFFS BY THIRD-PARTY CLAIM) - and - GARY CHRISTIANSON DEFENDANT BY THIRD-PARTY CLAIM Counsel: Michael R. Scharfstein for the plaintiff/ defendant by counterclaim Kirk M.

Cherry for the defendants/plaintiffs by counterclaim and plaintiffs by third-party claim ___________________________________________________________________________ JUDGMENT MILLS J. December 13, 2022 ___________________________________________________________________________ [ 1 ] Given the similarity of the names of the parties involved in this action, I will refer to them by their first names. [ 2 ] This is an application by the defendants, Raquel and Kimberly, to strike out an affidavit filed in this action by

the plaintiff, Edith, sworn on July 5, 2021, pursuant to Rule 5-31 of The Queen’s Bench Rules . Rule 5-31 reads as follows: Continuing duty to disclose 5-31

(1) A person who is or has been the subject of questioning shall, by affidavit, correct an answer if: (

a) the answer was incorrect or misleading; or (

b) an answer becomes incorrect or misleading as a result of new information.

(2) The correcting affidavit must be made and served on each of the other parties as soon as is practicable after the person realizes that the answer was or has become incorrect or misleading. [ 3 ] There does not appear to have been a previous judicial determination of the meaning of Rule 5-31. The underlying action involves a dispute over the ownership of a quarter

section of farmland in the Rural Municipality of Pleasantdale. The land was owned by and originally in the name of Edith and her husband, Stanley. Through a series of transfers and deaths of individuals, the land ended up registered in the name of Edith, Raquel and Kimberly as of April 1, 2019. The claim by Edith is essentially that she is the beneficial owner of the land and that upon advising Raquel and Kimberly that she wished to have it sold, they were compelled to transfer the property back to her or to consent to the sale of the property, with the proceeds going to Edith.

Raquel and Kimberly have refused to accept Edith’s request. [ 4 ] The important dates for the purpose of this application are as follows: 1) the statement of claim was issued on November 3, 2019; 2) the questioning of Edith occurred on April 21, 2021. Edith was 97 years old at that time; 3) on July 5, 2021, Edith swore the affidavit in question wherein she recanted an answer given at the questioning of April 21, 2021; 4) on April 27, 2022, the affidavit in question was served upon defendants’ counsel.

Served at the same time were Edith’s reply to undertakings given at the questioning; 5) on May 11, 2022, the defendants’ solicitor, in a letter to the plaintiff’s solicitor, raised the issue of cross-examining Edith on the challenged affidavit; 6) on May 18, 2022, the plaintiff’s solicitor responded in writing stating that Edith is in hospital and is unable to attend for questioning; 7) on August 16, 2022, this notice of application was served on the plaintiff’s solicitor and filed in court; 8) on August 18, 2022, Edith passed away; and 9) on October 13, 2022, Shirley, in her capacity as executor of Edith’s estate, was named as the plaintiff in this action. [ 5 ] Edith’s solicitor argues that in interpreting Rule 5-31 it is important to know the context of the circumstances surrounding the giving of the answer during the questioning of April 21, 2021 and the circumstances surrounding the signing of the challenged affidavit, along with its eventual service upon the defendants.

He is correct. The Rule is straightforward, however, in coming to a determination of what is reasonable, the context of what happened throughout is important. [ 6 ] The specific question and answer that are the source of this application involve the questioning of Edith by defendants’ counsel. It follows: Q. And I’m talking about the subject property. Is it the intent to eventually sell it and distribute it accordingly to - - A. Yes, that’s what I intended to do. Q. And is that still the intent? A. Yes. Q.

And it would be to divide the proceeds from that sale equally between yourself and your two granddaughters, Kimberley [ sic ] and Raquel, correct? A. Yes. (Transcript of Questioning of Edith Christianson, Queen’s Bench Court, Saskatoon, April 21, 2021 at pages 115-116.) [ 7 ] The questioning continued and at 1:29 p.m. a short adjournment occurred. When questioning reconvened at 1:50 p.m., counsel for Edith made the following comment:

MR. SCHARFSTEIN: And I wonder, just as we’re going back on record, when we went into that break, Edith had expressed some concern to me about one of the answers she had provided and asked if she had an opportunity to try to correct the record related to what she meant by divided accordingly. I told her I would raise it with you that she has asked for an opportunity to correct one of her answers or clarify her answer, I’m not sure, so I told her I would let you know when we came into [ sic ] back into the joint session here. MR.

CONLON: Well, I mean that can be addressed by you guys on redirect if necessary or an affidavit, but I thought the replies on that were fairly clear. MR. SCHARFSTEIN: Certainly, that’s fine, I’m happy to deal with it by way of either an Affidavit of Correction or redirect at the end of this. That’s fine. (Transcript of Questioning of Edith Christianson by Mr. Conlon, Queen’s Bench Court, Saskatoon, April 21, 2021 at page 122.) [ 8 ] The questioning continued on other matters. Mr. Conlon did not raise the issue with Edith of any attempt to correct the answer. He was satisfied with it. Mr.

Scharfstein did not ask Edith to clarify her answer or otherwise deal with the issue during the questioning. [ 9 ] Edith’s counsel prepared the challenged affidavit in which she stated that she would like to correct and clarify the answer to the question I have identified. In her affidavit she stated at the time of the questioning she was 97 years old, that the questioning had begun at 9:30 a.m. and her incorrect answers were given around 1:20 p.m. She stated she was tired and confused by the questions and did not answer with accurate information.

Her affidavit further went on and described the interaction that took place between her lawyer and the defendants’ lawyer. [ 10 ] Determining the purpose of the Rule is important in interpreting how it is to be applied. The purpose of the Rule is informed, of course, by the purpose of oral questioning.

In Laybourne Enterprises Ltd. v Laybourne , 2005 SKQB 128 , 264 Sask R 128 [ Laybourne ] , the purposes of questioning are said to include defining the issues, obtaining full disclosure of the facts relating to the court action, pinning down the testimony of the parties, obtaining admissions, and ascertaining the strengths and weaknesses of the litigant’s case, all of which may lead to settlement of the action or streamlining of the trial. In this context, if an answer given is incorrect, it defeats the purposes of the questioning as enumerated.

In order to provide fairness between the parties, the Court has instituted Rule 5- 31(1), which allows an individual to correct an answer if it was incorrect or misleading. Rule 5-31(2) provides that the correcting affidavit is to be served as soon as practicable after the person realizes the answer was incorrect or misleading.

There are two important time considerations in subsection (2); the first is when did the realization that the answer was incorrect or misleading occur; and, second, was the correcting affidavit provided as soon as practicable after that realization occurred? [ 11 ] The plaintiff has raised that this application is inappropriate because the defendants were given the opportunity of correcting the information at the time of the questioning.

The plaintiff submits that once the defendants became aware that there was a problem with the answer, that it was incumbent upon counsel to re-question Edith to find out what the problem was with the answer and allow her to correct it. That submission ignores the purpose of the questioning. We are in an adversarial system. It is not up to a party, once having obtained a response that is advantageous to it, to embark upon a further investigation to make sure that the other party got it right.

Plaintiff’s counsel also had an opportunity to question Edith at the conclusion of the defendants’ questioning for the purpose of clarifying an answer or correcting an answer. They chose not to do so. The onus was on Edith. [ 12 ] Edith was aware that the answer was incorrect on April 21, 2021. She signed the corrected affidavit contemplated in the Rule on July 5, 2021, but did not serve it until April 27, 2022. The timeframe contemplated by subsection (2) is the timeframe from when the person realized the answer was incorrect and when the other side received an affidavit correcting it.

It is not between the timeframe when the affidavit was prepared and served. Therefore, a simple question to be posed is: does the delay of one year satisfy the requirement of being done as soon as practicable? A definition of the phrase “as soon as practicable” does not exist in The Queen’s Bench Rules . It is a relatively common expression within the Criminal Code , RSC 1985, c C-46 .

The competing interests of the state and an accused in the Criminal Code is, in my opinion, not an appropriate method of governing the relationship between two litigants in a civil action. [ 13 ] The defendants have argued that the activity of Edith in not providing the corrected affidavit for almost a year is an abuse of the court’s process. I do not accept that argument. The evidence does not point to any considered action on behalf of Edith to withhold this information to gain an advantage over the defendants.

The fact that after delivery of the affidavit Edith was not able to be cross-examined on it is part of the context of this case. One of the reasons necessitating a correcting affidavit is that without it there is prejudice that can accrue to the other side. The innocent party will go about the court action on the basis of the evidence that they have in front of them, including the questioning. Opportunities for settlement, gathering other evidence and assessing the strength of your case are all informed by the incorrect answer.

One of the purposes of that Rule is to reduce or, if not, eliminate the prejudice occurring as a result of the incorrect answer. [ 14 ] The final argument made by Edith is that the affidavit was presented at a reasonable time as it was forwarded to defendants’ counsel, along with the undertakings given at the questioning.

The plaintiff argues that there would be little point in providing the affidavit earlier as it would result in an unnecessary process where the plaintiff could be forced to be examined on two more occasions – the first being cross-examination on the affidavit and the second, follow-up questioning on the undertakings. I do not see the convenience of the party submitting the affidavit as a logical criteria in enforcing the Rule.

The Rule should not be assessed based on subjective considerations of the offending party. [ 15 ] The underlying premise of the Rule is to provide for fairness in the conduct of the action and to prevent prejudice to the non-offending party. Prejudice is determined by the timeline set out in the Rule. I do not believe the applicant needs to show actual prejudice to its position for the Rule to be applied. Certainly, in this case, prejudice on the facts is present but unnecessary.

[ 16 ] It may be that the offending party may attempt to lead evidence to show that no prejudice has occurred as part of an effort to prevent the Rule from being enforced. I leave that determination for another day and fact situation. [ 17 ] The Rule was intended to deal with adverse impact of an incorrect statement on the non-offending party. With that in mind, and going back to the notion was the affidavit made and served as soon as practicable after the realization came that the answer was incorrect, the Court must go back to April 21, 2021, that is the starting date.

Two months to prepare a relatively short affidavit with a simple explanation of an incorrect answer is not as soon as practicable. Serving the affidavit 10 months later is not either. The underlying purpose of the Rule, to prevent prejudice in respect of the considerations in Laybourne has been offended by the passage of time alone. The purpose of the Rules is to provide efficient resolution of disputes between parties. Efficiency includes time and money. Offending this Rule also offends the Foundational Rules. [ 18 ] The application under Rule 5-31 is successful.

There shall be an order striking the affidavit of Edith Christianson, sworn July 5, 2021. Costs are awarded in favour of the defendants, fixed at the sum of $1,500, payable in any event of the cause within 30 days from the date of this decision. ______________________________J. R.C. MILLS