Chapin Estate v Bennett, 2017 SKCA 102

Court of Appeal for Saskatchewan Docket: CACV3036 Citation: Chapin Estate v Bennett , 2017 SKCA 102 Date: 2017-12-04 Between: Patrick Robert Chapin, as Administrator of the Estate of Cathy Ann Chapin Appellant (Plaintiff/Respondent) And Gwen Marie Bennett Respondent (Defendant/Applicant) Before: Richards C.J.S., Caldwell and Herauf JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Herauf On Appeal From: 2017 SKQB 36 , Saskatoon Appeal Heard: November 17, 2017 Counsel: Mark W.

Kopitar for the Appellant Curtis J. Onishenko for the Respondent Caldwell J.A. [ 1 ] Patrick Robert Chapin, in his capacity as administrator of the estate of his deceased spouse, Cathy Ann Chapin, appeals against the

summary judgment at the Court of Queen’s Bench dismissing the estate’s claims against the deceased’s sister, Gwen Marie Bennett. [ 2 ] On undisputed evidence, the father of the deceased and Ms. Bennett had transferred farmland into their names as joint tenants. Upon the deceased’s death, Ms. Bennett became the sole titleholder of the lands. In its amended statement of claim, the estate asserted Ms. Bennett held a one-half interest in those lands in trust for the deceased and her estate or, alternatively, that the registration of those lands as a joint tenancy, as to opposed a tenancy in common, had been in error.

In the further alternative, the estate said Ms. Bennett had negligently caused the deceased’s death, which had resulted from a car accident, and therefore it was inequitable for Ms. Bennett to benefit from that death through a joint tenancy. The estate also sought the imposition of a constructive trust or a finding that a resulting trust existed. [ 3 ] The Chambers judge who heard Ms. Bennett’s application for

summary judgment dismissed all of the claims against Ms. Bennett (see Chapin v Bennett , 2017 SKQB 36 , 24 ETR (4th) 221). The estate appeals against this decision in two respects only. Firstly, the estate says the Chambers judge made a palpable and overriding error of mixed fact and law when he concluded the question as to “whether, based on the mutual conduct of [the sisters], Ms. Bennett holds a half interest in the land in trust for the estate” was not a genuine issue requiring a trial.

Secondly, although not raised in its notice of appeal, the estate asserts the Chambers judge erred in law by taking the Statute of Frauds , 1677, 29 Cha II, c 3, into consideration when Ms. Bennett had not plead it in her defence. [ 4 ] As to the first alleged error, the estate had pointed to five circumstances where it said the sisters’ conduct amounted to a mutual understanding that their interests in the lands were separate and that, because they held the lands in joint tenancy, on the death of one sister the other would hold the deceased sister’s interest in trust for her estate.

The Chambers judge found the evidence did not support the conclusion drawn by the estate. While the evidence supported a conclusion the deceased might have so believed, there was no evidence to suggest Ms. Bennett had held the same view.

That is, the Chambers judge found there was no evidence there had been a mutual understanding, which he had concluded was a legal precondition to severance of a joint tenancy and the imposition of a trust. [ 5 ] The estate has taken issue with this conclusion by noting the Chambers judge said he could not, without testimony, reconcile the evidence as to what had occurred in a 1999 meeting among the sisters, their father and Mr. Chapin. This conclusion, the estate says, should have led the Chambers judge to dismiss Ms.

Bennett’s application and set the matter, or at least the issue of what had occurred at the 1999 meeting, over for trial. However, the Chambers judge’s reasons disclose no error in this regard. [ 6 ] I say that because, while the circumstances of the 1999 meeting were the strongest evidence the estate had proffered in support of its claim, the Chambers judge understood that. In fact, for the purposes of his analysis, he accepted the estate’s account of what had happened at that meeting as true.

However, even when put at its highest, the Chambers judge found the estate’s evidence did not support the existence of a mutual understanding because it contained no detail as to Ms. Bennett’s participation in the discussions that had taken place at the 1999 meeting.

As to the facts, the Chambers judge stated at para 26: “This occasion, if it were accepted to have occurred, would be sufficient only to raise a question about possible mutual conduct—but not sufficient to establish the mutual conduct asserted by [the estate].” As to the legal conclusion drawn from the facts, the Chambers judge said: [27] I conclude, then, that the 1999 discussion also does not establish the agreement and trust asserted by [the estate].

I add that considering together all of the five factors identified by [the estate] leads to the same conclusion. [ 7 ] In short, the decision of the Chambers judge that there was no genuine issue requiring a trial discloses no error of law and therefore it attracts deference: Hryniak v Mauldin , 2014 SCC 7 at para 81 , [2014] 1 SCR 87. Where there is no extricable error in principle, findings of mixed fact and law, such as this, should not be overturned absent palpable and overriding error: Hryniak v Mauldin .

As I find no such error in the decision of the Chambers judge, this ground of appeal is without merit. [ 8 ] I do not need to address the second argument arising in this appeal other than in brief terms. The argument about the Chambers judge improperly relying on the Statute of Frauds was not raised in the notice of appeal and the estate has not sought leave of this Court to raise a new argument through its factum. As I interpret the Chambers judge’s reasons, he did not rely on the Statute of Frauds when dismissing the estate’s claims.

He referred to that Statute and its application in the circumstances in obiter , having already determined he would dispose of the claims on other grounds, which I would sustain. Regardless, although not plead, Ms. Bennett had raised the Statute of Frauds in her brief and in argument before the Chambers judge and the estate took no objection. For these reasons, I find no merit to the new argument made by the estate. [ 9 ] In short, the appeal is dismissed with costs to Ms. Bennett in the usual manner. “Caldwell J.A.” Caldwell J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Herauf J.A.” Herauf J.A.