Balone v Balone, 2017 SKCA 98

Court of Appeal for Saskatchewan Docket: CACV2926 Citation: Balone v Balone , 2017 SKCA 98 Date: 2017-11-10 Between: Edward Balone Appellant (Defendant) And Judith Balone, as Executrix of the Estate of Wm. M. Balone, deceased Respondent (Plaintiff) Before: Richards C.J.S., Caldwell and Schwann JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Mr.

Justice Caldwell The Honourable Madam Justice Schwann On Appeal From: QBG 718 of 2012, Saskatoon Appeal Heard: October 17, 2017 Counsel: Edward Balone appearing on his own behalf Davin Burlingham for the Respondent Richards C.J.S. I. Introduction [ 1 ] This appeal is grounded in an action by Judith Balone, acting as executrix of her late father’s estate, against her brother, Edward Balone, for debts allegedly owed by Edward to the estate. [ 2 ] The trial judge concluded Edward was indebted to the estate in the amount of $48,370. Edward appeals from that result.

He contends, most centrally, that Judith did not tell the truth when she testified and that the trial judge should not have accepted her evidence. [ 3 ] As explained below, Edward’s appeal must be dismissed. A deferential standard of review governs this appeal and, in light of it, there is no basis on which this Court can interfere with the trial judge’s decision. II. background [ 4 ] William Balone was a farmer. He died in October of 2011. In the interests of clarity and economy of expression, I will refer to William Balone as “Mr. Balone” and to his children by their first names. [ 5 ] Mr.

Balone farmed with Edward. [ 6 ] As noted, Judith is the executrix of Mr. Balone’s estate. She alleged that Edward owed money to the estate by virtue of an agreement under which he had rented land from Mr. Balone. Her claim related to Edward’s farming of five quarters of land in 2010 and 2011. [ 7 ] Edward acknowledged that he had farmed the land. He took the position that the terms of his arrangement with his father had changed from time to time and that he owed nothing to the estate. Edward also said that, in any event, Mr. Balone had waived any payment beyond what Edward had already made to him.

III. the queen’s bench decision [ 8 ] The trial judge accepted that Edward had farmed the land in question under an agreement with his father. He identified the key issues before him as being (

a) the terms of the agreement, and (

b) whether Mr. Balone had waived payment as contended by Edward. [ 9 ] In dealing with the terms of the agreement, the trial judge first addressed the evidence of Shirley Balone, a witness called by Judith. He said Shirley had appeared confused and that her evidence had been disjointed. In the end, he decided to place no reliance on Shirley’s testimony. [ 10 ] On the other hand, the trial judge found that Judith had testified in a frank, straightforward manner that was internally consistent and that squared with the other evidence.

He accepted both the truth and the accuracy of her testimony. [ 11 ] Edward, who was self-represented at trial, elected not to testify. [ 12 ] The trial judge concluded that, by way of an April 20, 1992, written agreement, Mr. Balone and Edward had agreed Edward

would farm three of Mr. Balone’s quarter sections for rent in the amount of one-third of the crop grown on the land. He also found thatEdward continued to farm those three quarters under the one-third crop share agreement when the term of the lease had expired. The trialjudge went on to conclude that the crop share arrangement had been extended to NE 17 sometime before 2010 when Edward beganfarming that land and had been extended again in 2011 to NE 8. [13] The trial judge did not accept Edward’s submissions that Mr. Balone had waived any further payment owing under theagreement.

He said that, because Edward had not testified, there was no reliable evidence of such a waiver. [14] The trial judge then calculated the amounts owing by Edward to the estate for 2010 and 2011. He determined those amountsto be $24,621 and $23,749 respectively. IV. the fresh evidence application [15] Edward has applied, pursuant to Rule 59 of The Court of Appeal Rules, for an order allowing him to adduce fresh evidence inthe form of an affidavit sworn by him on October 5, 2017. The body of the affidavit contains comments about Shirley’s personalcircumstances.

Exhibited to the affidavit are a variety of documents including Edward’s own permit books for various years, several ofMr. Balone’s permit books and a number of letters and emails. All of these documents are dated, or were in existence, well before thetime of the trial. [16] The considerations governing the introduction of fresh evidence on appeal are well known. They were summarized as followsby McIntyre J. in Palmer v The Queen, (SCC), [1980] 1 SCR 759 at 775 [Palmer]:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases: see McMartin v The Queen [ (SCC), [1964]S.C.R. 484].

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to haveaffected the result. [17] The difficulty with Edward’s application is clear. All of the evidence that he now seeks to put before the Court was availableto him and could have been presented during the course of the trial. His application thereby fails to satisfy the first element of the Palmertest. [18] Edward is self-represented and suggests there were “too many things going on” for him to have kept on top of the evidentiarysituation at trial.

While I can understand Edward’s perspective, it is not one that can carry the day. The trial judge took care to explain toEdward that he would have to formally introduce documents and have them marked as exhibits if he wanted to rely on them and, inresponse, Edward did put several documents in evidence in that way. At the end of Judith’s case, the trial judge also explained veryclearly to Edward the importance of putting a proper evidentiary record before the Court. The trial judge said this: THE COURT: Okay. Now, those are all of the witnesses that you are calling in this case. Do you plan to testify yourself?

MR. BALONE: Well, as -- as we have Mr. -- Mr. Storozuk represent what was going on, I -- I see no need for me to haveto go and hash out numbers anymore. I -- I would like to just go ahead and -- THE COURT: So from your point of view, all the evidence is in that you want in and you’re ready to move on to the closingarguments? MR. BALONE: Yeah, that’s right. THE COURT: All right. Just -- I’m going to come back in just a moment. Mr. Burlingham, if there were counsel on the otherside I would leave it at that, but I do have certain duties because Mr. Balone is self represented.

So I’m going to make one comment tohim about this, just so he’s aware of the possibilities. Thank you. MR. BURLINGHAM: Yes, I understand. THE COURT: Yeah. So Mr. Balone, I just want to follow up on my conversation with you yesterday. It absolutely is your choicewhether you testify or not because you’re the one deciding how you are going to run your case and you are the one deciding whatinformation you want to put before me and what arguments you want to make to me. I just want to confirm that you understand what Iput in the

summary of the trial process, that written piece that I gave you. And also what I said yesterday. When I decide this case, I willdecide it on the basis of the evidence that has come into this trial here today. The evidence from the witnesses and the documents thathave been marked as exhibits and nothing else. Now, of course, one of the questions for me to decide is whether there was some kind of an agreement between you and your father. Andif there was an agreement, what were the terms of the agreement?

I’ve heard some evidence about what seems to have been the goingrate and I know that you have suggested in some of your questions to some of the witnesses that it was something else, that perhapsmaybe it was just the basis of you paying taxes and crop insurance or that sort of thing. And I know -- or I shouldn’t say I know, I expect-- based on what you said to me before, I expect that in closing argument you are going to point me to the various pieces of informationand say, judge, you can add all these things up and they lead to this conclusion. And you are entitled to take that approach if you want.

I do not have any evidence before me right now as to exactly what was the discussion between you and your father, because of course, he’s not around anymore. The only person in the world who can testify as to what was the agreement between you and your father is you. If you don’t testify, then I’m left with going on the basis of the other evidence. But if you want me to hear what you have to say was the discussion, the only way I can have that information is if you testify. I’m not telling you to testify, I just want to make sure that you understand what the possibilities are.

Notwithstanding all of this, Edward decided not to testify or to introduce any additional documentary evidence. [ 19 ] In the circumstances, therefore, I see no basis on which Edward’s application to adduce fresh evidence can be allowed. The evidence he now wants to put before the Court could have been readily introduced at the trial. Edward is not entitled to retry his case in this Court by bringing it forward now. V. the appeal [ 20 ] Edward takes issue with how the trial judge assessed the evidence and, in particular, with how he assessed and weighed Judith’s testimony.

Edward makes the point that he had a special relationship with his father and that it was he who cared for Mr. Balone in his declining years. He contends only he and Mr. Balone knew the true nature of the business arrangements between them. [ 21 ] The answer to Edward’s appeal lies in the applicable standard of review. As explained during oral argument, this Court has no mandate to somehow redo the trial and substitute its assessments of the evidence and the witnesses for the assessments of the trial judge.

Rather, with respect to findings of fact, this Court may intervene only if the trial judge made a palpable and overriding error. See: Housen v Nikolaisen , 2002 SCC 33 at para 10 , [2002] 2 SCR 235. The same holds true for assessments of the credibility of witnesses. Determinations of credibility are recognized as being in the domain of trial judges and they therefore must be accorded deference by this Court.

See: F.H. v McDougall , 2008 SCC 53 at paras 72–73 , [2008] 3 SCR 41. [ 22 ] I appreciate that Edward strongly disagrees with the trial judge’s decision to accept Judith’s evidence about the nature of the farming relationship between him and his father. However, there is no basis on the evidentiary record before the Court to take issue with the trial judge’s conclusions. If Edward had wanted the trial judge to reject Judith’s evidence, he should have ensured that his side of the story was presented to the trial judge. The trial judge cannot be faulted for reaching the result he did given the evidence before him.

There is no palpable and overriding error in his findings. [ 23 ] Edward identified a number of other grounds of appeal in his notice of appeal that were not mentioned or pursued in his oral submissions.

I see no merit in those grounds either but, in the interest of completeness, let me say a very brief word about each of them. • “The defendant (appellant) was forced to appear in a court to defend a statement of claim that without proof that was Slanderous, Malicious, libelous, frivolous litigation” – Edward might not have liked the claim filed by Judith on behalf of the estate but there is simply no basis to contend it was groundless or was somehow slanderous, malicious, libelous or frivolous. • “The plaintiff, Judy Balone, husband Randy Browne, Shirley Balone were able to be present in court room while they given there testimony and through the cross examinations” – there is no merit to this concern.

The trial judge made orders respecting the exclusion of witnesses from the courtroom. He explained to Edward that individuals expected to testify for his side of the case would not be excluded when witnesses for Judith’s side gave their evidence. That is why Mr. Brown, who was called by Edward, remained in the courtroom during Judith’s testimony.

There was no error in any of that. • “Should I have testified in this unfair process I had to defend against 25 years of farming instead of the two year statue of limitations of time barred evidence and assumptions” – Edward would have been obliged to testify about the history of his farming relationship with Mr. Balone only to the extent that history was relevant to the estate’s claim for amounts owing for 2010 and 2011. The claim was only about rent for those two years.

Accordingly, Edward’s concern on this front has no merit. • “Part of the judgement decision based on discrimination of my mental acuity without expert evaluation, in places in the decision which I can defend against with evidence” – there is nothing in the trial judge’s decision to suggest, in any way, that he discriminated against Edward.

This concern is ill-founded. • “The plaintiff and her sister Shirley Balone are hostile witnesses to the deceased and defendant (appellant) as a result of several years of desention between both as a result of farming” – Judith and Shirley, of course, did give evidence that advanced the case against Edward. The trial judge chose to place no weight on Shirley’s testimony but he did accept Judith’s. As explained above, the assessment of Judith’s credibility and the decision about how much weight to attach to her evidence were very much in the domain of the trial judge.

He made no palpable and overriding error in relation to these matters. [ 24 ] In

summary, I am unable to accept any of the arguments advanced by Edward. VI. conclusion [ 25 ] I understand that Edward is unhappy with the trial decision in this matter. However, as noted, if he had wanted the trial judge to take a different view of the situation, he should have heeded the trial judge’s caution about the need to introduce the evidence necessary to support his position. [ 26 ] Edward’s appeal is dismissed. Judith, as executrix of Mr. Balone’s estate, is entitled to costs, which I fix at $1,000. “Richards C.J.S.”

Richards C.J.S. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Schwann J.A.” Schwann J.A.