DEBORAH KLEV APPLICANT - v. -, 2023 SKKB 279

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 279 Date: 20 23 12 19 Docket: KBG-RG-02321-2022 & SUR-RG-00049-2023 Judicial Centre: Regina IN THE MATTER OF THE ESTATE OF LYNNE WESLEY LOWES BETWEEN: DEBORAH KLEV APPLICANT - and - KELLY DEAN LOWES RESPONDENT Counsel: Nicole Flory for the applicant Randall Sandbeck, K.C. for the respondent FIAT ROBERTSON J. December 19, 202 3 INTRODUCTION [ 1 ] This decision responds to a request for directions under Rule 4-2(

c) of The King’s Bench Rules with respect to the proper form of the application. [ 2 ] The applicant filed notice of application in Form 6-5 seeking declaration that a hand-written list for distribution of personal property should be recognized as evidencing the testator’s final testamentary wishes. The respondent argues that the application should have been filed by originating notice in Form 3-49. For the reasons which follow, I agree that the application should be by originating notice. BACKGROUND [ 3 ] On January 19, 2022, the deceased testator, Lynne Wesley Lowes, [testator] executed his Last Will and Testament [Will] before a lawyer.

Article 2 of the Will named Deborah Klev as his executor and trustee or, if she was unable to act, then as alternate, his son, Kelly Dean Lowes.

Article 3.3(

a) of the Will contemplated “written instructions which may be provided to my trustee during my lifetime.” [ 4 ] On January 23, 2022, the testator dictated instructions in the form of a list identifying personal property for distribution to specified friends and family. The list was dictated by the testator to his nominated executor, Deborah Klev.

The document was signed by the testator. [ 5 ] The testator sent a message to his son the same day telling his son that “if and when I ever pass, Debbie Klev will inform you of the disposition of my properties”. [ 6 ] On January 29, 2022, the testator died. [ 7 ] On September 29, 2022, Kelly Lowes filed an originating application in Form 3-49 seeking an order for Deborah Klev to produce the Will, and for Kelly Lowes to be appointed as executor of that Will.

That application did not proceed to hearing and no order was made: KBG-RG-02321-2022. [ 8 ] On January 24, 2023, Kelly Lowes made application for probate naming himself as executor and sole

beneficiary. The application included renunciation of probate by Deborah Klev signed on November 18, 2023. The total value of the estate was declared as $571,583.43. [ 9 ] On January 24, 2023, Norbeck J. granted issue of letters probate. On February 2, 2023, letters probate were issued: SUR-RG-00049-2023. [ 10 ] On November 9, 2023, Deborah Klev filed notice of application in Form 6-5 in SUR-RG-00049-2023, seeking a declaration as to whether the handwritten list should be included as part of the Will. [ 11 ] On December 5, 2023, the application was heard in chambers.

The parties asked the court to provide direction on the question of whether the application was properly brought by notice of application, rather than by originating application. ISSUE [ 12 ] The issue is whether the application for declaration should be by notice of application or originating notice. LAW [ 13 ] The following provisions of The Wills Act, 1996 , SS 1996, c W-14.1 [ The Wills Act ] and The King’s Bench Rules may be relevant to this issue. The Wills Act [ 14 ]

Section 37 of The Wills Act authorizes a court to order that a document is effective, even if not compliant with the requirements for a formal will, if the court is satisfied on a balance of probabilities that the document embodies a deliberate or final expression of the deceased as to the intention for disposal of his property upon death: Substantial compliance 37 The court may, notwithstanding that a document or writing was not executed in compliance with all the formal requirements imposed by this Act , order that the document or writing be fully effective as though it had been properly executed as the will of the deceased or as the revocation, alteration or revival of the will of the deceased or of the testamentary intention embodied in that other document, where a court, on application is satisfied that the document or writing embodies: (

a) the testamentary intentions of a deceased; or (

b) the intention of a deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied in a document other than a will. Rules of Court [ 15 ] The following rules of The King’s Bench Rules of court may be relevant to this application: Purpose and intention of these rules 1-3(1) The purpose of these rules is to provide a means by which claims can be justly resolved in or by a court process in a timely and cost effective way.

(2) In particular, these rules are intended to be used: (

a) to identify the real issues in dispute; (

b) to facilitate the quickest means of resolving a claim at the least expense; (

c) to encourage the parties to resolve the claim themselves, by agreement, with or without assistance, as early in the process as is practicable; (

d) to oblige the parties to communicate honestly, openly and in a timely way; and (

e) to provide an effective, efficient and credible system of remedies and sanctions to enforce these rules and orders and judgments. . . . Rule contravention, non-compliance and irregularities 1-6(1) If a person contravenes or does not comply with these rules, or if there is an irregularity in a commencement document, pleading, affidavit, Form or other document, a party may apply to the Court: (

a) to cure the contravention, non-compliance or irregularity; or (

b) to set aside an application, proceeding or other thing because of prejudice to that party arising from the contravention, non- compliance or irregularity.

(2) An application pursuant to this rule must be filed within a reasonable time after the applicant becomes aware of the contravention,

non-compliance or irregularity.

(3) An application pursuant to this rule may not be filed by a party who alleges prejudice as a result of the contravention, non-compliance or irregularity if that party has taken a further step in the action knowing of the prejudice.

(4) The Court may cure any contravention, non-compliance or irregularity but only if: (

a) to do so will cause no irreparable harm to any party; (

b) in doing so the Court imposes terms or conditions that will: (

i) eliminate or ameliorate any reparable harm; and (ii) prevent the recurrence of the contravention, non-compliance or irregularity; (

c) in doing so the Court imposes a suitable sanction, if any, for the contravention, non-compliance or irregularity; and (

d) it is in the overall interests of justice to cure the contravention, non-compliance or irregularity. . . . Rules govern Court actions 3-1 A Court action for a claim may only be brought and carried on, applications may only be filed and proceedings may only be taken in accordance with these rules. How to start an action 3-2(1) An action, other than a family law proceeding, may only be started by filing in the appropriate judicial centre described in rule 3-3 or 3-4: (

a) a statement of claim by a plaintiff against a defendant; (

b) an originating application by an originating applicant against a respondent; or (

c) a notice of appeal, reference or other procedure or method specifically authorized or permitted by an enactment.

(2) A statement of claim must be used to start an action, unless an enactment or these rules provide otherwise.

(3) An action may be started by originating application if these rules authorize the commencement of an action by originating application.

(4) If an enactment authorizes, requires or permits an application to be made to the Court and the application: (

a) is made in an action with respect to which a commencement document has been filed, the application must be made pursuant to

Part 6, unless the Court orders otherwise; or (

b) is not made in an action with respect to which a commencement document has been filed and the enactment does not provide a procedure to be used, an originating application must be used unless the Court orders otherwise or these rules provide otherwise.

(5) If an enactment authorizes, requires or permits an appeal or reference to be made to the Court and provides a procedure, the appeal or reference must be made by notice of appeal: (

a) in the form prescribed by the enactment; or (

b) if no form is prescribed, in a form consistent with the procedure.

(6) If an enactment authorizes, requires or permits an appeal or reference to be made to the Court and does not provide a procedure, the appeal or reference must be made by originating application.

(7) If an action that is started in one form should have been started or should continue in another, the Court may make any procedural order to correct and continue the proceeding and deal with any related matter. . . . Actions started by originating 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; . . . Consolidation or separation of claims and actions

3-81(1) The Court may order one or more of the following: (

a) that 2 or more claims or actions be consolidated; (

b) that 2 or more claims or actions be tried at the same time or one after the other; (

c) that one or more claims or actions be stayed until another claim or action is determined; (

d) that a claim be asserted as a counterclaim in another action.

(2) An order pursuant to subrule (1) may be made for any reason the Court considers appropriate, including, without limitation, that 2 or more claims or actions: (

a) have a common question of law or fact; or (

b) arise out of the same transaction, occurrence or series of transactions or occurrences. Directions for consolidation or separation of claims 3-82 If an order is made pursuant to rule 3-80 or 3-81, the Court may: (

a) give directions that will avoid unnecessary costs or delay; (

b) vary the procedure for setting an action down for trial; and (

c) alter, rescind or modify any order or directions mentioned in clauses (

a) and (b) . . . What the responsibility includes 4-2 The responsibility of the parties to manage their dispute and to plan its resolution requires the parties: … (

c) when the complexity or the nature of an action requires it, to apply to the Court for direction or request case management pursuant to rule 4-5. . . .

Interpretation of Subdivision 6-2 In this subdivision, “application” means an application in the course of an action with respect to which a commencement document has been filed. Applications generally 6-3(1) All applications must be by notice of application except where otherwise specifically provided.

(2) If pursuant to any enactment an application may be made to the Court or to a judge, the application must be by notice of application unless the enactment or these rules provide otherwise.

(3) If the Court is satisfied that a delay caused by proceeding in the ordinary way would result in serious mischief, the Court may make an order without notice on any terms it considers appropriate, and subject to any undertaking, that the Court considers just.

(4) Any party affected by an order mentioned in subrule (3) may move to set it aside or to vary it.

(5) In all applications, any pleading on file in the office of the local registrar may be used and taken as evidence of the pleading, unless proven otherwise . . . Contents of notice of application 6-5(1) Every notice of application must be in Form 6-5 and must be addressed to and served on all parties and every other person affected by the application.

(2) Every notice of application must set out all of the following: (

a) the precise remedy sought; (

b) the grounds to be argued, including a reference to any

section of an enactment or rule to be relied on; and (

c) a list of the documentary evidence to be used at the hearing of the application. … Use of filed affidavits

13-38(1) All affidavits that have been made and filed in any cause or matter may be referred to and used at any stage of the proceedings in any application in chambers. ANALYSIS [ 16 ] In this part of the decision, I will review the availability of an originating application to start an action, the difference between a notice of application and originating notice, how the court deals with related court files and the court’s ability to cure procedural mistakes.

Commencing an action [ 17 ] As set out in Rule 3-2 of The King’s Bench Rules , a civil action can be commenced by statement of claim, originating notice or other method specifically authorized by statute. [ 18 ] The use and relative merits of a statement of claim and originating notice are well described by Master Schlosser in Dash Distributors Inc. v Powlik , 2012 ABQB 770 at paras 6-9 , in which he states “The Statement of Claim is the all-terrain vehicle”: [6] … The Statement of Claim is the all terrain vehicle.

An Originating Application may be used if the criteria set out in 3.2(2) are met. ... [7] In appropriate circumstances, an Originating Application may be more conducive to expedient resolution of a matter. It gets you into court on a specific date to have the matter heard and, where the use of it is appropriate, it dispenses with many of the steps that would follow if a Statement of Claim were chosen as the commencing document. [8] The emphasis of many of the new Rules is to keep matters moving and to shorten the horizon for the resolution of a matter brought by a Statement of Claim.

However, with a Statement of Claim you only get a trial date when you are ready to complete a Form 37. That is a long way and many steps removed from the commencing document. [9] The procedure for a matter commenced by Originating Application is not open ended. But, the price of being able to pick a court date from the outset is that the matter has to be capable of

summary determination. It is an exception to the rule that a dispute will be resolved at trial if it is not settled along the way. In this case the Applicant was eager to have the matter resolved and that, in part, dictated the choice of procedure. It was a laudable choice but not the right one. Originating Notice [ 19 ] The originating notice is only available for those matters specified under Rule 3-49 of The King’s Bench Rules : a-

c) court direction on estate or trust;

d) interpretation of instrument or legislation;

e) declaration of interest in land;

f) approving land transaction or trust variation;

g) judicial review;

h) Charter [ Canadian Charter of Rights and Freedoms ] remedy;

i) other matter where material facts not in dispute. [ 20 ] In this case, the application seeking a declaration as to the list clearly falls within the circumstances specified under clauses 3-49(

a) and (

b) of The King’s Bench Rules , pertaining to “the administration of the estate”. As such, the originating notice would be available. [ 21 ] Rule 3-49 gives the applicant the choice of an originating application for those matters specified under Rule 3- 49 as an alternative to proceeding by statement of claim. Rule 3-49 does not mandate the use of an originating application. The originating notice is an option. [ 22 ] The originating application will be appropriate for matters capable of

summary adjudication where, in the words of clause 3-49(i), “it is unlikely there will be any material facts in dispute”. [ 23 ] Rule 3-51 of The King’s Bench Rules provides that Parts 4 (Managing Litigation) and 5 (Disclosure of Information) do not apply to an action started by originating notice unless the parties otherwise agree or the court otherwise orders. Those parts provide for pre-trial discovery by exchange of records and questioning.

So even if an originating notice is available, a statement of claim is likely preferable if material facts are in dispute. [ 24 ] In Reaney v Fradette, 2023 SKKB 60 , the relief sought by originating application was an order transferring real property pursuant to an alleged oral agreement.

Bergbusch J. concluded that contested question of law and fact required a trial of the issue. [ 25 ] In Métis Nation – Saskatchewan and Métis Nation – Saskatchewan Secretariat Inc. v Saskatchewan (Environment) , 2022 SKQB 23 at para 96 , reversed on other grounds 2023 SKCA 35 , I concluded that “actions commenced by originating notice are intended for claims that are suitable for

summary determination. That usually requires either agreement on facts or at least disputed facts that do not require credibility assessments and which may be resolved by drawing inferences on the affidavit

evidence.” [ 26 ] In Hildebrand v Hattum , 2021 SKQB 136 , the relief sought by originating application was an order transferring real property pursuant to a will. Brown J. concluded that conflicting evidence made a

summary determination inappropriate and directed a trial on the issue. In doing so, he commented on proper use of originating applications and resorted to Rules 3-51 and 3-53: [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. [45] One should not lose sight of the foundational rules nor the concern addressed through Hryniak v Mauldin , 2014 SCC 7 , [2014] 1 SCR 87 even though that decision was in the context of a

summary judgment decision. The foundational rules confirm that where justice might be accomplished with a less involved and onerous process, that ought to be utilized. However, the goal of ensuring justice is accomplished in light of the issues at play, the amount that is involved in the contest and the complexity of the facts underlying such determination should not be compromised if that is not the appropriate outcome. [46] It is also important to keep in mind that Rules 3-51 and 3-53 of The Queen’s Bench Rules provide a discretion to the court including whether to order that aspects of

Part 4 and

Part 5 of the Rules ought to apply to an originating application. This discretion extends to the court ordering that any Rules applying to an action by statement of claim apply to the action started by originating application. These should, however, only be applied where a triable issue that is not capable of a fair and just resolution on the basis of the materials submitted, given the scale of the interests at issue, exists.

Where additional procedural steps should be put in place in order to enable an appropriate, fair and just result then that should happen. [47] It is also important, therefore, to consider the applicable law as against the evidence presented, the facts which can be ascertained and the facts which must still remain undecided to determine if a fair and just determination can be made in the circumstances or whether a genuine issue for trial remains. [ 27 ] In Ituna Investment LP v Industrial Alliance Insurance and Financial Services Inc., 2018 SKQB 162 , 81 CCLI (5th) 89, the applicant sought

summary determination of rights under life insurance contracts. Although none of the parties questioned the suitability of the proceeding, Scherman J. concluded, at paras. 31-35, that the contested evidence made

summary determination inappropriate. [ 28 ] In Veitch v Wollf , 2017 SKQB 252 , the relief sought by originating application was an order for partition and/or sale of a condominium unit. Elson J. concluded the application was appropriate, stating at para. 11 “There are few, if any, facts in actual dispute …”. He also commented, at para. 9, on the shift towards

summary disposition of certain civil proceedings: [9] Rule 3-49 was introduced in the overhaul of The Queen’s Bench Rules , effective on July 1, 2013. Rule 3-49 is considerably broader than its predecessor, Rule 452 of the former Queen’s Bench Rules . Perhaps more importantly, the introduction of Rule 3-49 coincided with a noticeable shift in the approach taken by Canadian courts to

summary disposition of certain civil proceedings. [ 29 ] In Dyck v JCL Property Management Ltd. , 2014 SKQB 274 , 454 Sask R 238, the applicant by originating application sought declaratory relief to include real property in an intestacy. Wilkinson J. concluded the application was appropriate, stating at para. 36, “Here, the facts are not contentious”. Originating Notice or Notice of Application? [ 30 ] An originating notice in Form 3-49 is different from notice of application in Forms 6-4 (without notice) and 6-5 (with notice).

Even so, they are sometimes confused. [ 31 ] In Windels v Reddekopp , 2023 SKCA 38 at para 20 [ Windels ], Barrington-Foote J.A. for the Court of Appeal stated that an oppression application brought under ss. 214 and 225 of The Non-profit Corporations Act , 1995 , SS 1995, c N-4.2 , “should have been commenced pursuant to Rule 3-49 of The Queen’s Bench Rules, namely, by originating application. However, it was instead brought by a notice of application …”.

The court went on at para. 65 to refer to decisions in which courts applied Rule 1-6 to cure such a defect in process, including Smooke v Rosemont Estate Condo Corp. 101222494, 2017 SKQB 201 , 80 RPR (5 th ) 277 [ Smooke ] and Rural Municipality of Edenwold No. 158 v Murray, 2017 SKQB 15 [ Murray ]. [ 32 ] Smooke involved an oppression application by a condominium owner to challenge the decision of the condominium board to increase monthly maintenance fees. The application was filed by notice of application.

Danyliuk J. at para. 24 commented that the application should have been brought by originating application. He applied Rule 1-6 to allow the application to proceed notwithstanding that irregularity: [24] Finally, it was pointed out to Mr. Smooke that using a notice of application instead of an originating application was likely incorrect, given The Queen’s Bench Rules and, in particular, Rule 3 2. However, I have exercised and used my discretion under Rule 3 2(7) and Rule 1 6 to cure this irregularity to allow the application to proceed.

The respondent was not prejudiced by this procedure as it clearly knew the case it had to meet, and the parties were saved time and expense. It made sense to proceed in this fashion. [ 33 ] Murray involved an application by a landowner seeking to quash a municipal bylaw. The application was filed by notice of application. Kalmakoff J. (as he then was) held at paras. 3 and 32 that the application should have been made by originating notice. He went on at para. 37 to apply Rule 1-6 to allow the applicant to file an amended originating application.

[37] In this case, I am satisfied that permitting the Respondents to amend their application so as to cure the defects and bring it into compliance with Rule 3-49(1)(g), as an application under s. 358 of The Municipalities Act [ SS 2005, c M-36.1 ] to quash the expropriation bylaw, is the appropriate application of Rule 1-6. [ 34 ] Wilchuk v Westfield Twins Condo Corporation , 2018 SKQB 2 , involved a challenge brought by notice of application by a condominium owner against the condominium corporation and its board.

Layh J. referred to Smooke with similar comment about the proper form of application being by originating notice: Preliminary Matter [13] The Corporation raises an initial point. Mr. Wilchuk’s application probably should have been brought before the court by way of originating application in form 3-49: Smooke v Rosemont Estate Condo Corp 101222494 , 2017 SKQB 201 . However, the Corporation waives any irregularity in the proceedings. [ 35 ] When a statement of claim or originating notice is filed, the registrar will open a new general court file (KBG).

Notice of application in Form 6-5 is generally intended for ancillary applications brought within an existing action already commenced by statement of claim or originating notice. (Some statutes authorize application which may be brought by notice of application, but those are specific statutory exceptions to the usual practice.) Surrogate Court File Not an Action [ 36 ] The notice of application in this case was filed under the surrogate court file (SUR). That file was opened on application for probate of the Will.

It does not constitute an action, so does not provide a foundation for ancillary applications by notice of application. Rules to Deal with Related Court Files [ 37 ] While the possible proliferation of related court files could be a concern, it is unlikely to arise in practice.

And if it does, The King’s Bench Rules provide ways to deal with that, such as by consolidating court files under Rules 3-81 and 3-82, cross- referencing them so that they move forward together, and allowing reference to and reliance upon materials from different files under Rule 13-38. [ 38 ] The King’s Bench Rules , in Rule 13-38(1), allows parties to rely upon affidavits filed in other actions: see Ghiasi v Huntley , 2021 SKQB 112 at para 12 ; Atrium Mortgage Investment Corporation v Koh , 2020 SKQB 179 at para 21 ; and DeMaria v Law Society of Saskatchewan , 2012 SKQB 454 at para 30 , 407 Sask R 139.

This authority can be of assistance when there are related court files. Conclusion [ 39 ] I conclude that the application seeking declaration to recognize the list should have been brought by originating notice, not notice of application. Curing Procedural Mistake [ 40 ] Counsel for Kelly Lowes expressed concern that he might wish to rely on materials filed with his originating application in defending against the application to recognize the list. Those materials are on the court file opened under KBG-RG-02321- 2022. The notice of application was filed on the court file opened under SUR-RG-00049-2023.

To address both this concern and to deal with the error in filing by notice of application, I will make an order to allow the main application to proceed with as little trouble as possible. [ 41 ] Rules 1-6 and 3-2(7) of The King’s Bench Rules authorize the court to cure procedural mistakes. The guiding principle as to whether the court should exercise its discretion to do so is whether the exercise of discretion would accord with the foundational rules. This is illustrated in the cases reviewed above, including Windels , Smooke, and Murray .

I similarly find that it would be appropriate to exercise that discretion in this case. [ 42 ] Rules 3-81, 3-82 and 13-28 of The King’s Bench Rules allow justices hearing an application, where they find it appropriate to do so, to consider materials from more than one court file. This authority will more often be applied where the parties are the same on both files. The safeguard is that the filed materials are presumed reliable from having met the requirements for filing, such as the swearing of affidavits. ORDER [ 43 ] I therefore order that:

a) Any defect in the filing of the notice of application is cured;

b) The notice of application filed on SUR-RG-00049-2023 be transferred to KBG-RG-02321-2022;

c) The two files be cross-referenced and proceed together for hearing of the application; and

d) The materials on both files may be considered in the hearing of the application. [ 44 ] Neither party spoke to costs of this application for direction. I make no order as to costs. I do so without

prejudice to the right of the parties to speak to costs at the conclusion of the application seeking recognition of the list. J. D. N. ROBERTSON