KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 14 Date: 2023 01 18 Docket: QBG-MJ-00022-2019 Judicial Centre: Moose Jaw BETWEEN: JASON KUFFNER PLAINTIFF - and - LEON JACQUES, in his capacity as Executor of the Estate of PHILLIP EUGENE JACQUES (DECEASED) DEFENDANT Counsel: Nicholas E. Conlon for the plaintiff Kenneth M. Cornea for the defendant JUDGMENT TOCHOR J. January 18, 202 2 I. INTRODUCTION [ 1 ] The plaintiff, Jason Kuffner [Mr. Kuffner], applies pursuant to Rule 7-2 of The Queen’s Bench Rules for

summary judgment against the defendant Estate of Phillip Eugene Jacques [Estate]. He seeks the following relief: (

a) a declaration that the deceased, Phillip Eugene Jacques, [Mr. Jacques] lacked testamentary capacity when he executed wills dated October 10, 2013; October 21, 2013; and July 9, 2014; (

b) an order requiring the will executed on July 9, 2014, to be proven in solemn form; (

c) an order revoking the grant of letters probate made on December 7, 2018 regarding the will of July 9, 2014; (

d) solicitor-client costs of this application. [ 2 ] The sole issue in this application is whether

summary judgment should be granted for the orders set out above. [ 3 ] Mr. Kuffner argues this is an appropriate case for an order for granting of

summary judgment in accordance with Rule 7-2 of The Queen’s Bench Rules . He argues there is no genuine issue requiring a trial and that he is entitled to judgment. [ 4 ] In response, the Estate argues there are a number of reasons why this case cannot be determined in a

summary

judgment application. First, it submits Megaw J. in his judgment of May 6, 2019 ( Jacques Estate v Kuffner (6 May 2019) Moose Jaw, QBG 22/2019 (Sask QB)), concluded there is a genuine issue for trial as to whether Mr. Jacques had testamentary capacity when he executed the will of July 9, 2014. Second, it submits the conflicting affidavit evidence between the parties is not capable of being resolved without a trial. [ 5 ] For the reasons that follow, I conclude there are genuine issues requiring a trial and I dismiss Mr. Kuffner’s application for

summary judgment. II. BRIEF BACKGROUND [ 6 ] Mr. Jacques died on September 19, 2018, at the age of 88. Prior to his death, he executed wills dated May 28, 2012; October 10, 2013; October 21, 2013; and July 9, 2014. [ 7 ] The applicant, Mr. Kuffner, is one of eight step-grandchildren of Mr. Jacques. The will of 2012 provided for Mr. Kuffner to receive a larger share of the estate than he would receive under the wills executed in 2013 or 2014.

The primary difference is that the 2012 will provided him with a specific bequest of land and farm equipment, while the subsequent wills provided him with a one-eighth share of a portion of the estate. [ 8 ] The will dated July 9, 2014, was admitted to probate on December 6, 2019; however, Mr. Kuffner disputes the validity of this will and the two wills executed in 2013. He argues that because Mr. Jacques did not have testamentary capacity when he executed these wills, the will of May 28, 2012, should be admitted to probate instead. [ 9 ] Mr.

Kuffner filed an originating application seeking an order for proof in solemn form of the will of July 9, 2014, on the basis that Mr. Jacques did not have testamentary capacity. The Estate opposed the application and Megaw J., in his ruling of May 6, 2019, concluded the issue of Mr. Jacques’ testamentary capacity was a genuine issue for trial. He therefore set the matter down for trial pursuant to The Queen’s Bench Rules . [ 10 ] After the order of Megaw J, on October 13, 2021, Mr. Kuffner filed an application for

summary judgment. He seeks essentially the same orders he requested in the originating application and on the same basis – the alleged testamentary capacity of Mr. Jacques. [ 11 ] I now address whether

summary judgment should be granted in this application. III. ANALYSIS 1. The Legal Framework [ 12 ] The principles governing the determination of

summary judgment applications have been extensively examined in the case law. [ 13 ] The starting point is Rule 7-2 of The Queen’s Bench Rules which reads as follows: 7-2 A party may apply, with supporting affidavit material or other evidence, for

summary judgment on all or some of the issues raised in the pleadings at any time after the defendant has filed a statement of defence but before the time and place for trial have been set. [ 14 ] Rules 7-5(1) and (2) state when a court may grant a

summary judgment: 7-5(1) The Court may grant

summary judgment if: (

a) the Court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or (

b) the parties agree to have all or part of the claim determined by

summary judgment and the Court is satisfied that it is appropriate to grant

summary judgment.

(2) In determining pursuant to clause (1)(

a) whether there is a genuine issue requiring a trial, the Court: (

a) shall consider the evidence submitted by the parties; and (

b) may exercise any of the following powers for the purpose, unless it is in the interest of justice for those powers to be exercised only at a trial: (

i) weighing the evidence; (ii) evaluating the credibility of a deponent; (iii) drawing any reasonable inference from the evidence. [ 15 ] In Tchozewski v Lamontagne , 2014 SKQB 71 , [ 2014] 7 WWR 397 [ Tchozewski ] , Barrington-Foote J. (as he then was) explained the principles first articulated in Hryniak v Mauldin , 2014 SCC 7 , [2014] 1 SCR 87 [ Hryniak ] as follows: 30 … In Hryniak , Karakatsanis J. breaks that analysis down into discrete steps and key principles - a “ roadmap ” - based on the various elements of the

summary judgment rules. In brief, the key elements of that roadmap, in the context of a Rule 7-2 application, are as follows: 1. The court must first decide if there appears to be a genuine issue requiring a trial within the meaning of Rule 7-5(1)(a)), based solely

on the evidence before the court, and without using the powers provided by Rule 7-5(2)(

b) to weigh the evidence, evaluate credibility and draw inferences. ( Hryniak , para. 66 ) 2. There will be no genuine issue requiring a trial if the judge is able to reach a fair and just determination on the merits based on the affidavit and other evidence. That will be so if the

summary judgment process: (

a) allows the judge to make the necessary findings of fact; (

b) allows the judge to apply the law to the facts; and (

c) is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial. ( Hryniak , para. 49 ) 3. The issue is not whether the

summary judgment process is as thorough or the evidence is as complete as at trial. It is whether the judge is confident he or she can find the facts and apply the relevant legal principles so as to fairly resolve the dispute. If the judge has that confidence, proceeding to trial is generally not proportionate, timely or cost effective. A process that does not give the judge confidence in his or her conclusions, on the other hand, is never proportionate. ( Hryniak , paras. 50 and 57 ) 4. If there appears to be a genuine issue requiring a trial, the court should next determine if a trial can be avoided by using Rule 7-5(2) (

b) powers to weigh evidence, evaluate credibility and draw inferences, and whether it is in the interests of justice that those powers be exercised only at trial. ( Hryniak , para. 56 ) 5. In deciding whether there is a genuine issue requiring trial, and whether it is in the interests of justice to use the powers provided by Rule 7-5(2)(

b) to avoid a trial, the court must consider the nature of the evidence and issues. It must also consider proportionality in the context of the litigation as a whole. The relevant factors may include, but are not limited to: (

a) the complexity of the claim; (

b) the amount at issue; (

c) the importance of the issues; (

d) the relative cost and speed of a

summary judgment application, as compared to trial; (

e) whether better evidence will be available at trial than on the application, and the nature and extent of the conflict in the evidence, including: (

i) whether there is competing evidence from multiple witnesses, the evaluation of which would benefit from cross-examination; (ii) whether credibility determinations are at the heart of the issues to be determined; and (iii) whether credibility determinations are made more difficult by the shortage of reliable documentary yardsticks. (

f) whether the court is able to fairly evaluate the evidence, including the extent to which it would assist the court to have evidence presented by way of a trial narrative, to hear and observe witnesses and to have the assistance of counsel in reviewing the facts and the law within the conventional trial process; (

g) whether

summary judgment would resolve all claims against all parties, or whether a trial will be necessary in any event, raising, among other things, the possibility of duplicative proceedings or inconsistent findings of fact; and (

h) whether the application could dispose of an important claim against a key party, thereby reducing cost and delay. (Rule 1-3, Hryniak , supra , paras. 58, 60 and 66 , and Pervez [ Pervez v Caskey , 2013 SKQB 377 , [2013] 12 WWR 794 ], para. 48) 6. The court also has the discretion to permit a party to present oral evidence pursuant to Rule 7-5(3) if it would allow the court to reach a fair and just adjudication on the merits and is the proportionate course of action. ( Hryniak , para. 63 ) [ 16 ] A useful

summary of the law is also provided in Casbohm v Winacott Spring Western Star Trucks , 2019 SKQB 44 , [2019] 9 WWR 714 . [ 17 ] Refinements to these principles are also evident in more recent authorities. [ 18 ] A primary task in determining

summary judgment applications is assessing whether there is a conflict in the evidence and, if so, whether that conflict can be resolved in some way short of conducting a trial. This was explained by Layh J. in Lane Realty Corp v Samuel Rey and Miner Creek Farms Ltd., 2019 SKQB 286 at para 26 [ Lane Realty ] : [26] Given these statements, I must first determine whether there exists a conflict in the affidavit evidence …If I find no conflict in the evidence, chances are I will be comfortable to make a “fair and just” determination and grant a

summary judgment. On the other hand, if I find conflict, I must explain to the litigants whether I can resolve the conflict using the powers under Rule 7-5(2) by weighing evidence, evaluating the credibility of the deponents, and by drawing reasonable inferences. If I can resolve the conflict or explain that the matters in controversy are not material to a fair and just determination of the issues, I will likely be comfortable to make a “fair and just” determination and grant a

summary judgment. If I cannot resolve the conflict using the powers under Rule 7-5(2), I must decline granting

summary relief . [Emphasis added] [ 19 ] Finally, this synopsis was provided by Layh J. at para. 27:

[27] … The real question in

summary judgment applications is whether the issue can be resolved without a trial, essentially a question of the judge’s comfort with the status of the evidence. In face of conflicting facts, the presiding judge must explain how he or she resolved the conflict or whether the conflict was inconsequential to the issues. Failing to do either, the judge must decline a

summary adjudication . [Emphasis added] [ 20 ] This helpful discussion in Lane Realty was also relied upon in Miller v Saskatchewan , 2020 SKQB 8 at para 27 , 12 RPR (6th) 191 . [ 21 ] From these authorities, it is apparent that there is a need for careful navigation through conflicts in the evidence. Any conflicts must be explicitly addressed to determine if their existence presents an insurmountable barrier to

summary judgment. [ 22 ] Nonetheless, what remains constant is the overarching goal of a “just and fair determination on the merits”; this has always been the foundation of such applications and this goal has been consistently recognized throughout the evolution of the case law, from Hryniak and Tchozewski to Lane Realty. [ 23 ] It is within this legal framework that Mr. Kuffner’s application must be considered. 2. Is

Summary Judgment Appropriate in These Circumstances? [ 24 ] After reviewing the evidence filed by the respective parties, I conclude there are genuine issues that require a trial. I come to this conclusion for the following reasons. (

a) Justice Megaw’s Judgment of May 6, 2019 [ 25 ] First, Megaw J. in his judgment of May 6, 2019, made a finding that there are genuine issues for trial in this matter. [ 26 ] In his judgment, Megaw J. addressed Mr. Kuffner’s application for an order requiring Mr. Jacques’ will of July 9, 2014, to be proven in solemn form. He squarely faced the conflicting evidence provided by both parties on whether Mr. Jacques had testamentary capacity when he executed that will and he concluded this issue must be determined at trial.

He expressly found that a genuine issue existed at para. 49: [49] I have determined there is a genuine issue to be tried with respect to the testator’s testamentary capacity at the time he executed the will on July 9, 2014… [ 27 ] Justice Megaw later elaborated on his conclusion at paras. 58-61: [58] … The changes to the will involving Mr. Kuffner, in light of Mr.

Kuffner’s assertion there was an arrangement between he and his grandfather, raises a genuine issue over whether the testator appreciated who might be expected to benefit from the estate, the extent individuals were going to benefit, and the nature of the claims of others who were then being excluded. [59] The fact the testator has been admitted to have “good and bad days” appears to indicate there was a concern over his mental state at the time of the later two wills.

The extent of that concern is not included in the materials filed seeking to uphold the validity of the will. … [61] In all of these circumstances, I determine the applicant has raised a genuine issue for trial regarding the testator’s testamentary capacity . As a result, this aspect of the application should proceed onto trial in accordance with The Queen’s Bench Rules . [Emphasis added] [ 28 ] Mr. Kuffner disputes the impact of this finding made by Justice Megaw. [ 29 ] In written and oral argument, Mr.

Kuffner submits that Justice Megaw’s finding there is a “genuine issue for trial” “cannot be read to mean “genuine issue requiring a trial”. He submits Justice Megaw’s finding was made in the context of a preliminary application for an order requiring proof in solemn form, and not in the context of a

summary judgment application where more affidavit evidence is now available. He therefore disputes that Justice Megaw’s finding of a genuine issue is applicable, much less binding, in this

summary judgment application. [ 30 ] Mr. Kuffner also relies upon 101077099 Saskatchewan Ltd. v Bayhurst Energy Services Corporation , 2015 SKQB 269 at para 2 , 482 Sask R 167 to submit “the new rule is to have a trial if necessary, but only if necessary”. [ 31 ] I cannot accept the distinction Mr. Kuffner seeks to advance in this submission. I cannot conceive there is any material difference between “a genuine issue for trial” and “a genuine issue requiring a trial”. The plain words used by Justice Megaw convey an unmistakable intention to order a trial to resolve whether Mr. Jacques had testamentary capacity.

There cannot be any misunderstanding of Justice Megaw’s conclusion that a trial of this issue is required in these circumstances. [ 32 ] Support for the conclusion that the order of Megaw J. precludes the granting of

summary judgment is found in Fourney v Manson , 2020 SKQB 215 [ Fourney ] . [ 33 ] There, the parties attended a pre-trial conference and, being unable to resolve the case, had the matter set down for trial. However, soon thereafter, the defendant filed an application for

summary judgment and a request that the Local Registrar “defer scheduling a trial of the action”. Danyliuk J. dismissed the

summary judgment application on procedural grounds, holding at para. 28:

[28] It escapes me just how counsel believed that the current

summary judgment application could be brought after a fully completedpre-trial conference had been held (settlement and management portions) which ended with the pre-trial judge directing the matter to beset down for trial. This, in the context that counsel all certified their readiness for trial and an express direction from the pre-trial judge tothe Local Registrar to set the matter for trial, … [Emphasis added] [34] In Fourney, Danyliuk J. also explained that before an order setting the matter down for trial can be re-opened,there must be a “significant and unexpected change in circumstances” (at para. 33).

In this regard, he relied upon L.(G.) v Canada(Attorney General), 2004 SKCA 137 at paras 33-34, [2005] 3 WWR 445: [33] The elaborate requirements of Rule 191 and those associated with it serve to endow this, the final step in the pre-trial process, withconsiderable significance. So does the high cost associated with this step. The significance is not confined to the litigants and theircounsel but extends to the proper administration of justice generally, including the administration of the business of the Court.

The pointis that, once this step has been taken, there is no going back in the absence of compelling justification. Otherwise the process for setting acase down for trial is apt to be undermined. And if undermined, it is apt to be exposed to potential abuse, including abuse associated withone litigant wearing down another by generating uncertainty, further delay, and more cost. [34] That some compelling justification is required before opening up pre-trial proceedings, once the management phase of the pre-trialconference has been completed, is recognized in the Court of Queen’s Bench: Hesje v.

Zurich Life Insurance Co. of Canada et al. (1998), (SK KB), 160 Sask. R. 89. There, Mr. Justice Hrabinsky held that, once the process envisioned by Part Seventeen ofThe Queen’s Bench Rules has come to an end, the pre-trial proceedings are not to be reopened in the absence of an applicant establishingthat a significant and unexpected change in circumstances has occurred, or that a manifest injustice is likely to occur if the pre-trialproceedings are not reopened. [Emphasis added] [35] In Fourney, Danyliuk concluded at para. 40: [40] In the case at bar, the facts militate against allowing an eleventh hour

summary judgment application to be made. The parties allcertified they were ready to go to trial. The additional disclosure contemplated at the pre-trial conference has occurred. As such, there isnothing preventing the trial from proceeding as scheduled. Given how precious both court and judicial schedules are, the October trialdates ought to be sedulously guarded and utilized. Certainty is an important object in our civil litigation process. Litigants and theircounsel are expected to bring some rigour to the process.

They cannot do whatever they want, whenever they want to do it. [36] I recognize that it could be argued there are some factual distinctions between Fourney and this case. InFourney, the parties attended a settlement pre-trial conference, after the matter could not be resolved, the pre-trial judge set the matterdown for trial. [37] Here, an originating application was heard in chambers and the presiding judge ruled there were genuine issuesthat required a trial.

His order was not appealed, and no compelling or extraordinary circumstances have been raised which might permita second judge to ignore the order of the first judge. If any factual distinctions between Fourney and this case exist, they are not material.I therefore conclude the reasoning of Danyliuk J. is directly applicable to this case. [38] In

summary, Megaw J. concluded there is a genuine issue for trial regarding Mr. Jacques’ testamentary capacitywhen he executed the will of July 9, 2014. Megaw J. also concluded there is a genuine issue for trial as to the ownership of certain farmequipment Mr. Kuffner claims were gifted to him by Mr. Jacques. Finally, Megaw J. concluded Mr. Kuffner’s claim for a constructivetrust may proceed in the form set forth in the originating application. [39] On this procedural basis, like the court in Fourney, I conclude

summary judgment should not be granted on thesame issues determined by Megaw J. and I therefore, dismiss the application. (

b) The Conflicting Affidavit Evidence [40] Second, if I am in error in relying upon Justice Megaw’s ruling of May 6, 2019, to dismiss the application, I willcontinue to consider the merits of the application. [41] After a review of the evidence, I conclude the application for

summary judgment must be dismissed because Iam unable to resolve the conflicting affidavit evidence. [42] As explained below, the evidence on material issues relating to the testamentary capacity of Mr. Jacques iscontradictory. After reviewing the considerable volume of evidence put forth by the parties, I cannot discern a sound basis to makecredibility findings on the basis of the filed materials. I also conclude it is in the interests of justice for the court’s powers under Rule 7-5(2)(

b) to be exercised only at trial. [43] While I will not catalogue each and every area of conflict, I provide two examples to illustrate the contradictorynature of important aspects of the evidence. [44] One irreconcilable conflict arises between the evidence of Mr. Kuffner and the evidence of Mr. Jacques’ lawyerand accountant. [45] In his affidavits of February 5, 2019, and October 7, 2021, Mr. Kuffner states Mr. Jacques suffered dementiaafter suffering from a stroke in April 2013. He states that, after the stroke, Mr. Jacques was easily confused and his memory was poor.He also states that Mr.

Jacque’s dementia “significantly worsened” after he had knee surgery in December 2013. Mr. Kuffner provides

anecdotes where his grandfather gets lost while driving, or while driving in his fields, or when he damaged farm implements. Mr. Kuffner, and other affiants, paint a picture of his grandfather after the stroke as a person whose lack of mental capacity rendered him essentially incapable of living alone or conducting his day-to-day affairs. [ 46 ] However, this evidence is contradicted by evidence from Mr. Jacques’ lawyer, Thomas V. Mountain, and his accountant, Larry Baran. Both of these witnesses had professional dealings with Mr. Jacques at material times. [ 47 ] Mr.

Mountain, in his affidavit of March 1, 2019, states he had no concerns about the mental capacity of Mr. Jacques: [10] At no time during the meeting with [Mr. Jacques] regarding his wills of 2012, 2013 and 2014, did I observe any behavior or hear comments or remarks from [Mr. Jacques] that gave me any cause for concern about his mental capacity. He was clear and definite about what he wanted and he clearly stated the reason why he wanted to make changes. [ 48 ] In his affidavit of January 13, 2022, Mr. Mountain states that Mr. Jacques was clear in his intention to reduce the inheritance available to Mr.

Kuffner: [9] I recall that [Mr. Jacques] was unequivocally clear in that he wanted to revise the 2012 Will to reduce the benefit to [Mr. Kuffner]. Accordingly, I gave [Mr. Jacques] several options and I believe that he clearly understood each of the options, including the option he chose. [Mr. Jacques] was exceedingly clear that he wanted to reduce the inheritance that [Mr. Kuffner] would receive, and he understood that the 2013 Will would have the effect of doing so. [ 49 ] Mr. Larry Baran, the accountant for Mr. Jacques for over 40 years, provided evidence similar to that of Mr. Mountain.

In his affidavit of March 8, 2019 at para. 3, Mr. Baran described Mr. Jacques as “very clear-headed’ in the meeting of May 30, 2013, where the farming operation was discussed. Mr. Jacques was also described as follows: “He led the discussion and was familiar with all aspects of the meeting”. [ 50 ] Mr. Baran described Mr. Jacques in similar terms when recounting a meeting on November 5, 2013: [4] I met again with [Mr. Jacques] on November 5, 2013. [Mr. Jacques] and I met to discuss his 2013 personal tax plan, and [Mr. Jacques’] year end for tax purposes was November 30, 2013. We also discussed [Mr.

Jacques’] personal net worth. [Mr. Jacques] was clear-headed and familiar with the extent of his property… [ 51 ] Mr. Kuffner argues the evidence of Mr. Mountain should be rejected because he did not conduct a specific or detailed inquiry into the mental capacity of Mr. Jacques, and because he was unaware of Mr. Jacques’ health issues which included a stroke in 2103. Mr. Kuffner argues I should place more reliance on the evidence of people who knew Mr.

Jacques personally, rather than on his lawyer and accountant who did not see him on a regular basis. [ 52 ] After carefully considering all the evidence, I cannot discern a sound basis for making a finding of credibility between Mr. Kuffner and others, and Mr. Mountain and Mr. Baran, on the basis of the affidavit evidence. While I acknowledge this can sometimes be done by a judge on a

summary judgment application – see, for example, Kyrylchuk v Kyrylchuk Estate , 2020 SKCA 62 at para 29 , 58 ETR (4th) 201 – in these circumstances, I am not confident a sound basis exists for determining credibility in a

summary way without a trial. I simply do not have confidence that I can resolve this conflicting evidence in a fair or just manner on this application. See also, Lane Realty at paras 26-27 . [ 53 ] Another irreconcilable conflict is found in the evidence of competing medical professionals, Mirna Vrbancic and Dr. Rehman. [ 54 ] Mirna Vrbancic, in her report dated December 13, 2020, reviewed several reports, documents and medical records of Mr. Jacques, including a report prepared by Dr. Rehman. [ 55 ] With respect to Mr. Jacques’ cognitive capacity on October 21, 2013, Ms.

Vrbancic concluded, at p. 9 of her report, that he would likely have had “mild to moderate levels of impairment”: … On April 8, 2013, Mr. Jacques demonstrated impaired cognitive performance on a screening measure of his cognition, indicating that he would likely demonstrate at least mild to moderate levels of cognitive impairment on comprehensive neuropsychological assessment of his cognitive functioning. His ongoing issues with memory and reasoning are clearly documented and evident up to the time of his executing his last Will and Testament on October 21, 2013, and indicate that Mr.

Jacques likely did not have the mental capacity to fully understand the nature and consequences of his decisions regarding disposal of his property and the recipients of this inheritance as presented in his last Will & Testament of 2013… [ 56 ] With respect to Mr. Jacques’ cognitive capacity in July 2014, Ms. Vrbancic concluded, also at p. 9 of her report, that he would have had “even less cognitive capacity” at that time: … It is very likely that due to progressive underlying cerebrovascular neuropathology, Mr.

Jacques had even less cognitive capacity, and executive functioning and memory recall in particular, that would be needed to make decisions when executing his Last Will and Testament in July 2014, as his significantly diminished cognitive capacity likely did not allow him to fully understanding [ sic ] the long- term implications and consequences of his decision. [ 57 ] However, Dr. Z. Rehman, in his report of November 28, 2013, comes to a different conclusion than Ms. Vrbancic. He specifically addressed “a question of cognitive dysfunction” for Mr. Jacques and concluded at p. 2 that Mr.

Jacques did not appear to have any form of dementia: Assessment and Recommendation: There does not appear to be any form of dementia. If he does have some memory problems there

may be some mild cognitive impairment due to being post stroke and advanced age… [ 58 ] Dr. Rehman’s report is listing in the material reviewed by Ms. Vrbancic, but there is no further acknowledgement, or discussion, of Dr. Rehman’s report by Ms. Vrbancic. [ 59 ] Once again, after carefully considering the whole of the evidence, I cannot discern a sound basis for making a finding of credibility between the evidence of Ms. Vrbancic and Dr. Rehman on the basis of the affidavit evidence.

In these circumstances, I am not confident a sound basis exists for determining credibility in this way and I simply do not have confidence that I can resolve the conflicting evidence in a fair or just manner without a trial. [ 60 ] In

summary, leaving aside the conflicting evidence between Mr. Kuffner and other family members who are parties to the lis , it cannot be disputed there exists evidence which brings into question Mr. Jacques’ capacity during the material times in 2013 and 2014. At the same time, it cannot be disputed that there exists evidence, from independent third-party witnesses and a doctor, which supports a finding that Mr.

Jacques possessed testamentary capacity at the material times. [ 61 ] In light of this conflicting evidence, it is simply not possible or appropriate to make a just and fair determination of this dispute without a trial. The anecdotal examples relied upon by Mr. Kuffner or opposing affiants in support of their positions are not accompanied by details as to time. There are three wills, executed between October 2013 and July 2014 and it is not clear when many of the anecdotal examples occurred, particularly in relation to when Mr. Jacques gave Mr.

Mountain instructions on any of the respective wills or when the wills were executed. As well, there is evidence Mr.

Jacques had “good days and bad days”, but the evidentiary record does not provide assistance in delineating points in time for this observation in relation to when instructions for the wills were given or when they were executed. [ 62 ] I conclude, in these circumstances, that it would be of assistance to any trier of fact to have the evidence of many of the witnesses tested upon cross-examination at trial. [ 63 ] To use the words in Tchozewski at para 30 , in this case, I am not confident I can “find the facts and apply the relevant legal principles so as to fairly resolve the dispute”.

And, as explained in Hryniak at paras 50 and 57 , a “process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute”. [ 64 ] On this basis as well, and in keeping with the words of Layh J. in Lane Realty at paras 26-27 , an order for

summary judgment in these circumstances is not warranted. I therefore dismiss the application on this basis as well. (

c) Procedural Observation [ 65 ] Before concluding these reasons, I make a procedural observation with respect to the scheduling of a hearing date for the

summary judgment application. [ 66 ] The court file indicates all necessary materials were not filed when an order was made in chambers on October 18, 2022, to set a date for the hearing. [ 67 ] As set out in cases such as Chernick v Chernick , 2020 SKQB 168 at para 24 [ Chernick ] , chambers judges have utilized a practice under General Application Practice Directive #9 [GA-PD#9] of requiring all materials, including briefs of law, to be filed before a request is made of the Local Registrar to set a date for the hearing of a

summary judgment application. In Chernick , Robertson J. explained at paras. 16-18: [16] Practice Directive #9 creates a two-step process for

summary judgment applications. The first step is for an application to be brought in chambers for management of the

summary judgment application. The second step is the actual hearing of the

summary judgment application. [17] The purpose of the first step goes beyond case management and also requires the chambers judge to consider whether the application is ready to be heard. While case management, including setting dates by which a stage or step in the action is expected to be complete and ordering the parties to comply with the dates, may be part of this review, more is intended. This is implied in the words “when appropriate” found in paras. 3 and 5 and “readiness to proceed” in paras. 4 and 5. [18] The chambers judge at the first step will not order the

summary judgment application to be scheduled for hearing unless it is ready to be heard. This requires a qualitative evaluation of the materials supporting the application. To be done properly, all materials should be filed before the second step hearing is scheduled . [Emphasis added] [ 68 ] Robertson J. concluded, on this point, at para. 24: [24] … For the reasons set out above, I believe the application must return to chambers for review of the file to determine whether the application meets the tests of “appropriate” and “readiness to proceed”.

If it does, then the chambers judge may order scheduling of a special date for hearing. [ 69 ] See also Atrium Mortgage Investment Corpration v Koh, 2020 SKQB 179 at paras 35 and 38 ; Yildir v Athol Murray College of Notre Dame , 2021 SKQB 278 at para 15 ; and Métis Nation – Saskatchewan and Métis Nation – Saskatchewan Secretariat Inc. v Saskatchewan (Environment) , 2022 SKQB 23 at para 99 . [ 70 ] Here, Mr. Kuffner’s brief of law was filed on December 16, 2022, and his compendium of filed evidence was filed on January 4, 2023. However, the brief of law refers to several affidavits (including the report of Ms.

Mirna Vrbancic) that were not on the court file until the compendium was filed the day before hearing. As a result, I did not have access to a large amount of affidavit

material until just before the hearing. [ 71 ] In this instance, it would have been preferable – and in keeping with GA-PD#9 and the guidance set out in the above case law - for the parties to appear in chambers after all materials were filed to confirm their readiness to proceed to a hearing. (

d) Procedural Orders [ 72 ] As well, in these circumstances, it may be helpful to discuss how the next steps in this matter may proceed. [ 73 ] Mr. Kuffner’s originating application sought an order directing a trial on four issues; however, Megaw J. dismissed the request for a trial on the issue of undue influence at paras. 67-68. [ 74 ] With respect to Mr. Kuffner’s claim of constructive trust, found in the originating application at paras. 5(c), 13, and 17(d), Megaw J. held at paras. 77-78 that there was no need to have this part of the claim proceed by way of a statement of claim.

He did not accept that it was necessary for Mr. Kuffner to initiate a separate or parallel proceeding for this part of his claim. Instead, Megaw J. ruled at para. 78 that this part of the claim “proceed forth in the form, and with the contents, set forth in the originating application” in accordance with The Queen’s Bench Rules . This conclusion appears motivated by a recognition of the principles underlying the foundational rules. [ 75 ] Therefore, in accordance with the order of Megaw J. on May 6, 2019, three issues must be determined at trial: (

a) whether Mr. Jacques had testamentary capacity at the time he executed the will of July 9, 2014 [at paras. 49 and 61]; (

b) the ownership of certain farm equipment Mr. Kuffner claims was gifted to him by Mr. Jacques [at para. 75]; and (

c) Mr. Kuffner’s claim of a constructive trust [paras. 77-78]. [ 76 ] Given the complexity of the legal and factual issues raised, some case management may facilitate the implementation of the order for trial made by Megaw J. I will therefore make an order pursuant to Rule 4-11(8) setting this matter down for a settlement pre-trial conference.

This step may allow the parties an opportunity to address case management issues, in addition to permitting an opportunity for resolution discussions. [ 77 ] While it is always open to the parties to avail themselves of Rules 4-4 and 4-5, the order for a pre-trial conference is intended to be additional means by which the parties can advance the litigation to trial as ordered by Megaw J. IV.

SUMMARY OF ORDERS [ 78 ] In

summary, I make the following orders: (

a) Mr. Kuffner’s application for

summary judgment is dismissed; (

b) Mr. Kuffner’s originating application shall proceed to trial in accordance with The Queen’s Bench Rules on the three issues identified by Justice Megaw in his order of May 6, 2019; (

c) Pursuant to Rule 4-11(8), the Local Registrar shall, in consultation with the parties, set this matter down for a pre-trial conference; and (

d) Costs of this application shall be costs in the cause. J. M.D. TOCHOR