Hess v Thomas Estate, 2019 SKCA 26

Court of Appeal for Saskatchewan Docket: CACV3248 Citation: Hess v Thomas Estate , 2019 SKCA 26 Date: 2019-03-22 Between: Monroe Hess Appellant (Defendant/Plaintiff by Counter-Claim) And Gwendolyn Barth and Lawrence Thomas, as Executors of the Estate of Martha Jennie Thomas Respondents (Plaintiffs/Defendants by Counter-Claim) Before: Richards C.J.S., Caldwell and Barrington-Foote JJ.A. Disposition: Appeal allowed in part Written reasons by: The Honourable Mr. Justice Barrington-Foote In concurrence: The Honourable Chief Justice Richards The Honourable Mr.

Justice Caldwell On Appeal From: QBG 832 of 2015, Saskatoon Appeal Heard: December 13, 2018 Counsel: Tristan N. Culham and Milad Alishahi for the Appellant Curtis J. Onishenko and Caroline J. Smith for the Respondents Barrington-Foote J.A. I. INTRODUCTION [ 1 ] The respondents, Gwendolyn Barth and Lawrence Thomas, are the executors of the estate of their mother, Martha Jennie Thomas, who died August 2, 2014. They commenced an action in the Court of Queen’s Bench on June 23, 2015, seeking a declaration that a 2010 lease of two quarter sections of farmland [2010 lease] be set aside.

The statement of claim alleges the appellant, Monroe Hess, acted unconscionably or exercised undue influence over and took advantage of Ms. Thomas. It also alleges Ms. Thomas did not have the legal capacity to enter into the 2010 lease. [ 2 ] The parties filed three applications in the Court of Queen’s Bench. First, the respondents filed a

summary judgment application seeking a declaration that the 2010 lease was void. Second, Mr. Hess applied to strike portions of several affidavits filed by the respondents, including the February 22, 2017, affidavit of Don McCannell and the April 27, 2017, affidavit of Dr. Heinrich Mynhardt. Those affidavits contain expert opinions. Third, Mr. Hess applied for

summary judgment on the ground that the action was barred by The Limitations Act , SS 2004, c L-16.1 . [ 3 ] A Queen’s Bench Chambers judge dealt with these three applications in an April 23, 2018, fiat [Chambers decision]. He refused to strike the two expert opinions. He found the limitation period and unconscionability issues suitable for

summary determination, but not the capacity to contract issue. He then found the limitation period had not expired and that the 2010 lease was void for unconscionability. In the result, he granted

summary judgment for the respondents. [ 4 ] Mr. Hess appeals three elements of the Chambers decision: the refusal to strike expert evidence, the decision the limitation period had not expired and the decision the 2010 lease was void for unconscionability. For the reasons that follow, I would allow the appeal in part as to the expert evidence, allow the appeal as to the limitation period and allow the appeal as to unconscionability. II. BACKGROUND A. The 2010 Lease [ 5 ] The course of dealings that resulted in the 2010 lease began in 2007. Ms.

Thomas, a then 77-year-old retired school teacher, sought offers to lease two quarters of farmland. Mr. Hess, who farmed in an adjoining municipality, offered to rent the land for $8,000 per year for a three-year term, with an option to renew for a further three years at the same price. Ms. Thomas accepted that offer. Mr. Hess’s lawyer prepared a draft lease on those terms, which was executed April 16, 2007 [2007 lease]. The 2007 lease provided that Ms. Thomas could terminate if Mr. Hess failed to cure a default within 30 days of receiving notice and that Mr.

Hess could terminate without cause on six months’ written notice. [ 6 ] Mr. Hess deposed that he always paid the rent early and that Ms. Thomas was pleased he did so. He described the development of a friendly relationship. In February 2010, he approached Ms. Thomas to exercise his option to renew for a further three- year term. He deposed that Ms. Thomas said she wanted a longer term lease because she did not wish to execute documents every three years.

He says he suggested a five-year term with a five-year renewal option and that she countered, proposing a ten-year term with an option to renew for a further ten years. Mr. Thomas agreed to that longer term because he liked the leased land. [ 7 ] Mr. Hess deposed that at Ms. Thomas’s behest, he had his lawyer prepare a draft lease on those terms, at an annual rent of

$8,000. Although that was the option rent, he said he knew it was less than fair market rent. He deposed that Ms. Thomas asked that the rent be increased to $9,000 for the first five years – which Mr. Hess thought was consistent with market value – and to $10,000 for all remaining years. The draft lease was amended to reflect those terms and was executed March 22, 2010. Timothy Roszell, a local commissioner for oaths who knew both parties, witnessed both signatures. [ 8 ] The 2010 lease also contained different termination provisions than the 2007 lease. The provisions that were central to the decision of the Chambers judge are as follows: 19(

a) The Tenant may terminate this Agreement on a without cause basis, and without any penalty, upon providing six (6) months’ prior written notice to the Landlord. (

b) In the event that the Tenant is unable to provide six (6) months’ prior written notice of his intention to terminate this Agreement to the Landlord and, upon exercising all reasonable efforts, the landlord is unable to re-lease the Land for the next crop year, the Tenant shall pay one year’s Rent to the Landlord. (

c) In the event that the Tenant is unable to provide six (6) months’ prior written notice of his intention to terminate this Agreement to the Landlord and, upon exercising all reasonable efforts, the Landlord is unable to re-lease the Land for an amount equal to or greater than the Rent paid pursuant to this Agreement, the Tenant shall pay to the Landlord the difference in the amount of the Rent for one year. B. Evidence of Mental Capacity [ 9 ] Ms. Thomas’s mental capacity is a central question in relation to both the limitation period and unconscionability. In her February 27, 2017, affidavit, Ms.

Barth deposed that her mother’s health suffered a significant decline in 2008. As she put it: 10. My Mother’s cognitive decline was very noticeable and she often became confused and had difficulty with simple tasks such as being able to use a telephone to call her brother. So too were the tremors and headshaking that she experienced. [ 10 ] Ms. Barth also appended letters dated April 2007 and October 2008, written by Ms. Thomas, which showed a marked deterioration in her handwriting. In the 2008 letter, Ms. Thomas said she spent over $11,000 on Readers Digest sweepstake contests. Ms.

Barth refers to those expenditures as evidence her mother was not making rational decisions. Ms. Barth said that early in 2012, Ms. Thomas moved to a nursing home in Flin Flon, Manitoba, to be near Ms. Barth. [ 11 ] In his March 9, 2017, affidavit, Mr. Thomas deposed that he lived approximately 60 km from Ms. Thomas until June 2010. He said he visited her occasionally to help with errands and drive her to medical appointments and that her brother drove her to get groceries. Mr.

Thomas also deposed that her health started to decline noticeably in 2008 and that she was – in a curious turn of phrase – “often pleasantly confused”. It was his evidence that from early 2009 to June 2010, she would often stay with his family for several weeks at a time “until she was insistent to return to her home”. He said he was reluctant to let her go home but knew she regularly spoke to her brother. Mr. Thomas also deposed as follows: 5. From 2009 to 2010 I witnessed a noticeable cognitive decline of my Mother. Our conversations became more erratic, and she became more confused as time went on.

This led to her living with my family in Outlook full time from July 2010 to early 2012. In 2012 she went to live in a nursing home near my sister Gwendolyn in Flin Flon, Manitoba. [ 12 ] In her August 25, 2017, reply affidavit, Ms. Barth deposed that the respondents decided it would be best for Ms. Thomas to move to a secure nursing home with 24-hour care, as she was very confused and wandered off. She said they arranged to have Ms. Thomas execute a power of attorney, as they thought she might react poorly to the move. Ms. Thomas executed that power of attorney January 16, 2012. [ 13 ] Dr.

Mynhardt, who graduated medical school in 1987, practiced family medicine from 1992 to the date of his April 27, 2017, affidavit. He deposed that many of his patients are at a long-term care facility and that a large percentage are diagnosed with dementia, Alzheimer’s and “other cognitive declining abilities”. He became Ms. Thomas’s family physician on November 17, 2008, when she was admitted to hospital following a loss of consciousness and a possible seizure.

She was diagnosed with colon cancer, sent for surgery in Saskatoon and readmitted to the Outlook hospital from December 8 to December 23, 2008, for treatment. Dr. Mynhardt deposed as follows: “5. During the time she was at the Outlook Union Hospital, I noted that she suffered from confusion. As a result we had Ms. Thomas perform a Mini Mental State Examination (“MMSE”) on December 15, 2008, where she scored 13 out of 30”. [ 14 ] The record of that examination discloses, among other things, that Ms. Thomas was disoriented as to time and place and could not spell the word “world” backwards.

There is no evidence as to the

interpretation of the test or the significance of her score. Dr. Mynhardt also deposed as follows: 6. I continued to be Ms. Thomas general physician until 2012. During this time I noted that her cognitive abilities continued to deteriorate. In my opinion, after December 2008 Ms. Thomas no longer had the requisite capacity to make informed decisions about her personal, financial and business affairs. [ 15 ] Dr. Mynhardt was cross-examined on this affidavit. He testified that he saw Ms. Thomas January 5, January 14, February 8 and February 25, 2009, and did not see her again until September 21, 2011.

He said the respondent Lawrence Thomas attended those visits, and gave the following evidence at trial as to the significance of that fact: Again, it just helps me clue in that there is a cognitive decline … [b]ecause that’s a sure sign. I mean, you don’t go with your mom to the doctor there. She won’t allow you in if she’s fully functional. But to me, that’s a sure sign, if the family always comes in with the elderly parent, that there -- that parent can’t manage; that they have

taken over the responsibility, maybe not on a cognitive, but on an emotional level there. [ 16 ] The appellant also filed evidence as to Ms. Thomas’s mental capacity. Mr. Hess deposed that Ms. Thomas, of her own volition, asked for and explained why she wanted amendments to the draft 2010 lease. He also deposed as follows: 22. … At no point during my interactions with Ms. Thomas in 2010 did I get the impression or have any reason to believe that she was unable to understand the agreement or lacked capacity. She appeared and acted as she always had the other times that I met with her.

I did not press her or suggest the changes to the 2010 Lease and the reasons that she gave me for the changes that she was proposing made sense to me. [ 17 ] Timothy Roszell deposed that he had known Ms. Thomas for many years, as she was his “across-the-alley neighbour” and he would visit her “every so often”. He also knew Mr. Hess. He witnessed Ms. Thomas’s signature on the 2007 lease. He witnessed both signatures when the parties signed the 2010 lease in Ms. Thomas’s kitchen.

It was his evidence he did not read the lease or discuss the terms with the parties, but only asked them whether everybody was in agreement. He deposed he was only in the house for about five minutes but saw nothing that gave him the impression that Ms. Thomas did not or was unable to comprehend the terms of the 2010 lease. [ 18 ] Carol Ziegler witnessed the power of attorney granted by Ms. Thomas to Ms. Barth on January 16, 2012. Ms. Ziegler operated a care home for elders in Outlook, Saskatchewan, from 1994 to 2007, and was familiar with and had previously dealt with the execution of powers of attorney.

She deposed that she believed Ms. Thomas had the capacity to understand the nature and effect of an enduring power of attorney when she signed it. C. Decision of the Chambers Judge [ 19 ] In the Chambers decision, the Chambers judge first rejected – in my view correctly – Mr. Hess’s submission that capacity to contract should never be determined by way of

summary judgment. He then concluded the issue could not be determined by

summary judgment in this case, for the following reason: [ 20 ] … I agree that there is insufficient evidentiary record to enable the court to make the factual findings necessary to support the plaintiffs’ contention that Ms. Thomas lacked capacity when the 2010 Lease was signed. To make that finding would require cogent and direct evidence of her mental capacity at that specific point in time and the evidentiary record before me falls well short of meeting such a threshold. It may well be that because Ms.

Thomas is deceased, such evidence does not exist, but the court cannot engage in the exercise of extrapolating evidence tendered by the plaintiffs of Ms. Thomas’s cognitive decline to conclude that she lacked the capacity to understand the 2010 Lease on the day that it was signed. [20] The Chambers judge dealt next with the application to strike portions of the respondents’ affidavits. He struck portions of the affidavits of Ms. Barth and Mr. Thomas, but none from the affidavits of Mr. McCannell and Dr. Mynhardt. Mr.

McCannell was asked for an opinion as to whether a ten-year farm lease with a ten-year option to renew for the same rent is common in Saskatchewan and as to the fair market rent “in the general area” of the land subject to the 2010 lease. The Chambers judge found (at para 25) that Mr. McCannell’s affidavit contained an adequate description of his “extensive qualifications in the area of the financial planning needs of farmers, farm business management and succession, and corporate structures for Saskatchewan farmers”, despite the fact the affidavit did not use the word “expertise”. He also found that Mr.

McCannell’s opinion had probative value. [ 21 ] As to Dr. Mynhardt, the Chambers judge rejected the application to strike the last sentence of paragraph 6 of his April 27, 2017, affidavit [Dr. Mynhardt’s opinion], finding as follows: [30] I do not agree with the defendant’s submission that it is necessary to strike this portion of Dr. Mynhardt’s affidavit. Dr. Mynhardt is a general physician with over 23 years of experience and who has several patients which suffer from cognitive decline and are in long- term care facilities. In my view, it is entirely appropriate for Dr.

Mynhardt to give his opinion, based on his professional experience, that “after 2008, Ms. Thomas no longer had the requisite capacity to make informed decision[s] about her personal, financial and business affairs”. [ 22 ] The Chambers decision dealt next with whether the basic two-year limitation period pursuant to s. 5 of The Limitations Act had expired before the action was commenced. The action was commenced more than five years after the execution of the lease.

As such, the limitation issue turned on s. 8 of The Limitations Act , which suspends limitation periods in certain situations when the plaintiff is disabled, and s. 9(1), which creates an exception to that suspension. Those sections are as follows: 8

(1) The operation of any limitation period established by this Act or any other Act or regulation is suspended during any period in which the claimant: (

a) is a minor; or (

b) is a person who, by reason of mental disability, is not competent to manage his or her affairs or estate and is not represented by a personal guardian or property guardian pursuant to The Public Guardian and Trustee Ac t o r a decision-make r pursuan t t o Th e Adul t Guardianshi p and Co-decision-making Act who: (

i) is aware of the claim; and (ii) has the legal capacity to commence the proceeding on behalf of that person or the person’s estate.

(2) A claimant is presumed to have been capable of commencing a proceeding with respect to a claim at all times unless the contrary is proved. 9

(1) In the case of a proceeding commenced by a person claiming through a predecessor in right, title or interest, the person claiming

through the predecessor is deemed to have knowledge of the matters mentioned in clauses 6(1)(

a) to (

d) on the earlier of: (

a) the day on which the predecessor first knew or ought to have known of those matters; and (

b) the day on which the person claiming through the predecessor first knew or ought to have known of those matters. [ 23 ] The Chambers judge dealt first with three arguments advanced by the appellant. He found that the fact Ms. Thomas was competent to execute a power of attorney did not mean she had the capacity to contract in relation to the 2010 lease. He did not comment on the relationship between capacity to contract and capacity to commence an action.

He then held that a person who has executed an enduring power of attorney is not a person to whom the suspension of the limitation period will not apply, as powers of attorney are not explicitly referred to in s. 8(1)(b). Finally, he found an executor is not a “person claiming through a predecessor in right, title or interest” within the meaning of s. 9(1) of The Limitations Act . [ 24 ] The Chambers judge then dealt with whether and when Ms. Thomas lacked capacity to commence this proceeding. He noted (at para 48) that the respondents tendered evidence Ms.

Thomas was suffering “a notable cognitive decline from December 2008 onward”. He noted the appellant disputed the propriety or probative value of much of that evidence. He then concluded Ms. Thomas lacked capacity and that the limitation period was suspended from March 22, 2010, until the date of Ms. Thomas’s death. His reasoning was as follows: [48] … I am satisfied that Mr. Thomas, Ms. Barth and Dr. Mynhardt were each entitled to make statements as to their observations of Ms. Thomas during the relevant time period. At this stage I have considered the following material: (

a) The evidence of Dr. Mynhardt, Ms. Thomas’s general physician, and in particular: (

i) the fact that Ms. Thomas scored 13 out of 30 on a Mini Mental State Exam administered on December 15, 2008; and (ii) Dr. Mynhardt’s opinion that Ms. Thomas lacked the requisite capacity to make informed decisions about her personal, financial and business affairs after December 2008; and (

b) The evidence of each of Mr. Thomas and Ms. Barth on both cross-examination and in their respective affidavits respecting the progressive worsening of Ms. Thomas’s cognitive functions during the approximately late-2008 to July 2010 when she began to live with Mr. Thomas on a full-time basis, and then moved to a 24-hour care facility in July 2012. [49] The foregoing leads me to conclude that the plaintiffs have successfully rebutted the presumption contained in s. 8(2) that Ms. Thomas was capable of commencing a proceeding on her own behalf.

I accept the submission of the plaintiffs in this respect and find that the basic limitation period was suspended from March 22, 2010, the date the 2010 Lease was signed, until August 2, 2014, the date of Ms. Thomas’s death. As such, because the statement of claim was issued on June 23, 2015, the claim was brought within the basic limitation period prescribed by s. 5 of The Limitations Act . [ 25 ] Finally, the Chambers judge dealt with unconscionability, describing the legal test as follows: [50] Before a contract can be set aside on the basis that it is unconscionable, a plaintiff must demonstrate: (

a) inequality in the position of the parties arising out of the ignorance, need or distress of the plaintiff; (

b) that the contract is substantially unfair to the plaintiff; and (

c) in order to rebut the presumption of substantial unfairness and preserve the contract, the defendant must demonstrate that the contract is fair and reasonable. See: Van De Geer Estate v Penner , 2006 SKCA 12 at para 38 … and Media House Productions Inc. v Dolter , 2002 SKCA 140 at para 4 . [ 26 ] He then dealt with each element of the test. First, he found inequality in the bargaining position of the parties, as follows: [51] Based on my conclusions above with respect to s. 8(2) of The Limitations Act and the evidence of Mr. Thomas, Ms. Barth and Dr. Mynhardt, I have no reservations in concluding that Ms.

Thomas was in a weaker bargaining position as compared to Mr. Hess. There is evidence of probative value before the court which suggests that Ms. Thomas was suffering from cognitive decline which increased her vulnerability to enter into an unfair bargain. Moreover, I note that Ms. Thomas did not have the assistance of legal counsel, nor had she consulted either Mr. Thomas or Ms. Barth at a time when she was dependent upon Mr. Thomas on at least a part-time basis.

I am unable to agree with the defendant’s submission that this was a standard landlord-tenant relationship in which both parties stood on equal footing. [ 27 ] Second, he found that the contract was substantially unfair to Ms. Thomas. He characterized the 2010 lease (at para 54) as having been “crafted in such a way that Ms. Thomas carried almost all of the financial risk”, noting that Mr. Hess could terminate if the market rent dropped, while Ms. Thomas had little recourse if it did not. He also preferred Mr.

McCannell’s evidence that a ten-year lease of Saskatchewan farmland with an option to renew for ten years is unheard of and unreasonable. He noted the lease was drafted by counsel for Mr. Hess and that Ms. Thomas did not have the benefit of independent legal advice. As he put it, [58] … Given the highly asymmetrical nature of the 2010 Lease and the circumstances in which it was presented to Ms. Thomas, it was incumbent upon Mr. Hess in order to rebut the presumption of substantial unfairness to have taken at least some steps to assure himself that Ms.

Thomas had independent advice with respect to how the 2010 Lease would affect her rights and interests over a potentially 20-year period. [ 28 ] He found the presumption was not rebutted and that the agreement was substantially unfair. In the result, he found the 2010 lease was void for unconscionability.

III. STANDARD OF REVIEW [29] Absent an error of law, the exercise of powers under the

summary judgment rules attracts deference: Hryniak v Mauldin, 2014SCC 7 at para 80, [2014] 1 SCR 87 [Hryniak]. A decision as to whether there is a genuine issue for trial on a

summary judgmentapplication is a mixed question of fact and law. Where there is no extricable error in principle, it should not be overturned absent apalpable and overriding error: Deren v SaskPower, 2017 SKCA 104 at para 41; Hryniak at para 81. It is an error in principle tomisapprehend or overlook material evidence: Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235 [Housen].

Questions of fact areassessed on the palpable and overriding error standard and questions of law on the correctness standard: Housen. [30] Decisions of trial judges to admit or reject expert evidence are owed deference: R v D.(D.), 2000 SCC 43 at para 13, [2000] 2SCR 275. The standard of review relating to such decisions was considered in R v Chung, 2018 SKCA 70.

Justice Herauf there cited (atpara 16) the following passage from R v Dominic, 2016 ABCA 114 at para 17, 335 CCC (3d) 178 [Dominic], with approval: The admissibility of expert evidence is a question of law reviewable for correctness insofar as the proper articulation and application ofthe legal test is concerned: R v Underwood, 2008 ABCA 263 at para 10, 433 AR 298. However, absent an error in principle, appellatecourts generally owe deference to decisions of trial judges to admit or reject expert evidence: R v DD, 2000 SCC 43 at paras 12-13,[2000] 2 SCR 275.

This is particularly so given that the cost-benefit analysis inherent in the gatekeeper inquiry involves judicialdiscretion rather than the application of a bright-line rule. [31] In particular, the qualification of an expert and the assessment of the probative value of their opinion are evidentiary issuesthat call for deference: Mouvement laïque québécois v Saguenay (City), 2015 SCC 16, [2015] 2 SCR 3. IV. ANALYSIS A. Did the Chambers judge err by refusing to strike portions of theaffidavits of Dr. Mynhardt and Don McCannell? 1.

Law: Admission of expert evidence [32] There are four threshold requirements for the admission of expert evidence: a properly qualified expert, relevance, necessityin assisting the trier of fact, and the absence of an exclusionary rule (R v Mohan, (SCC), [1994] 2 SCR 9 at paras 17–32(WL) [Mohan]; and White Burgess Langille Inman v Abbott and Haliburton Company Inc., 2015 SCC 23 at para 19, [2015] 2 SCR 182[White Burgess].

The proponent of the evidence must establish these requirements at the first step of the two-step admissibility analysisdescribed in White Burgess. [33] To establish that a witness is a properly qualified expert, the proponent must satisfy the trial judge the witness has special orpeculiar knowledge in relation to the subject matter of the opinion acquired through study or experience: Mohan at para 31.

As MoldaverJ. commented in R v Sekhon, 2014 SCC 15, [2014] 1 SCR 272, the trial judge “must both ensure that an expert stays within the properbounds of his or her expertise and that the content of the evidence itself is properly the subject of expert evidence” (at para 47). [34] If the proponent of expert evidence does establish the four requirements for threshold admissibility, the judge must considerwhether to exercise his or her residual discretion to exclude evidence.

Justice Cromwell described this second step in White Burgess: [24] At the second discretionary gatekeeping step, the judge balances the potential risks and benefits of admitting the evidence inorder to decide whether the potential benefits justify the risks. The required balancing exercise has been described in various ways. InMohan, Sopinka J. spoke of the “reliability versus effect factor” (p. 21), while in J.-L.J., Binnie J. spoke about “relevance, reliability andnecessity” being “measured against the counterweights of consumption of time, prejudice and confusion”: para 47.

Doherty J.A. summedit up well in Abbey, stating that the “trial judge must decide whether expert evidence that meets the preconditions to admissibility issufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from theadmission of the expert evidence”: para. 76. [35] In White Burgess, Cromwell J. concluded that a judge hearing a

summary judgment application – as opposed to a trial judge –should not undertake this second step analysis other than in “the most obvious cases of inadmissibility” (at para 55). However, thatexception to the usual rule resulted from the fact that White Burgess was an appeal arising from an application for

summary judgment inNova Scotia. In Nova Scotia, a judge hearing a

summary judgment motion was not entitled to weigh the evidence, draw reasonableinferences from evidence or settle matters of credibility. [36] As Cromwell J. noted, “different considerations may arise under different rules”. In Saskatchewan, there are different rules. Ajudge hearing an application for

summary judgment can weigh evidence, evaluate credibility and draw inferences. In this province, ajudge hearing a

summary judgment application first decides if there is a genuine issue for trial: Tchozewski v Lamontagne, 2014 SKQB71 at para 30, [2014] 7 WWR 397. That decision must be based solely on the admissible evidence before the court. Decisions as to theadmissibility of evidence should accordingly be made before the judge determines if there is a genuine issue for trial. When decidingwhether to admit an expert opinion, a judge should first determine threshold reliability and if the opinion meets that threshold, shouldundertake the second step analysis.

In doing so, they should, to the extent necessary in light of the nature of the opinion and the otherevidence, weigh the evidence, evaluate credibility and draw inferences. [37] Finally, as noted in Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 4th ed (Markham, Ont: LexisNexisCanada, 2014) at 792, “opinion evidence is worthless and, arguably irrelevant if there is an absence of a factual foundation for theopinion.”. R v Portillo (2003), (ON CA), 176 CCC (3d) 467 (Ont CA) [Portillo], demonstrates that this principle may

justify the exclusion of opinion evidence not only where the foundation is absent, but where it is so lacking as to fundamentallyundermine reliability. In that case, the trial judge admitted voice identification evidence by a neighbour who had previously had only onebrief conversation with the person identified. The trial judge found there was no foundation for this lay opinion and instructed the jury itwould be dangerous to give it any appreciable weight. Justice Doherty agreed there was no foundation and, as a result, held it was notadmissible and that the jury should have been told to disregard it entirely.

Similarly, he found that expert evidence relating to footprintswas irrelevant and inadmissible, as the factual foundation depended on assumption and speculation. [38] Portillo is not the usual approach to expert evidence based on a thin foundation. Generally, questions as to the existence andquality of the evidence available to support the opinion – which often relate to the use of hearsay by the expert or to a hypotheticalopinion – are dealt with as a matter of weight.

As Lebel J. noted in R v Gibson, 2008 SCC 16, [2008] 1 SCR 397: [58] … Even admissible expert evidence cannot be given any weight without a proper factual foundation: as this Court stated in R. v.Abbey, (SCC), [1982] 2 S.C.R. 24, “the facts upon which the opinion is based must be found to exist” (per Dickson J., atp. 46). In R. v. Lavallee, (SCC), [1990] 1 S.C.R. 852, the Court added that as long as there is some admissible evidenceto establish a foundation for it, the expert’s opinion may be accepted. The purpose of the factual foundation requirement is to ensure thatexpert evidence is reliable. 2.

Admissibility of Mr. McCannell’s opinion [39] Mr. Hess submits that Mr. McCannell’s evidence failed at the first step of the admissibility analysis. In particular, he saysthere was no evidence Mr. McCannell is an expert in relation to farm leases in general, and the length of their term and options to renewin particular. For that reason, Mr. Hess says Mr. McCannell is not a properly qualified expert in relation to those issues and thatparagraph 8 of his affidavit should have been struck. That paragraph contains Mr.

McCannell’s opinion that farm leases are rarely longerthan five years, generally provide for renewal at fair market rent, and that a ten-year lease at a fixed rate with an option to renew at thesame rate for a further ten years would be “unheard of and unreasonable”. [40] With respect, it is my view the Chambers judge did not err by admitting and relying on paragraph 8 of Mr. McCannell’saffidavit. As he noted, there was no need to preface the evidence relating to his qualifications with the word “expertise”.

There was noneed to comply with Rule 5-39 of The Queen’s Bench Rules, which relates to tendering expert evidence at trial. There was evidenceMr. McCannell had extensive experience advising farmers with respect to financial and estate planning and knew farm lease rates andfarm land values. On that basis, it was open to the Chambers judge to infer that he had peculiar or special knowledge in relation to thelength of the term and the terms of the option to renew. Given the deferential standard of review in this context, there is no basis tointervene. 3. Admissibility of Dr. Mynhardt’s opinion [41] Mr.

Hess also submits the Chambers judge erred in refusing to strike Dr. Mynhardt’s opinion, which I will repeat for ease ofreference: In my opinion, after December 2008 Ms. Thomas no longer had the requisite capacity to make informed decisions about her personal,financial and business affairs. [42] Mr. Hess attacks this opinion on several grounds. He says there is no evidence Dr. Mynhardt was sufficiently qualified toprovide expert evidence on the mental capacity to enter into contracts, as he is a family physician with no additional training or expertisein relation to cognitive health and capacity. Mr.

Hess notes Dr. Mynhardt did not examine Ms. Thomas in February or March 2010, whenthe 2010 lease was executed. He submits it is an established principle of Canadian law that capacity can fluctuate over time. On thatbasis, he submits that the prejudicial effect of Dr. Mynhardt’s opinion outweighs its probative value, as it lacks a sufficient foundation, isnot reliable and goes beyond his stated expertise. As such, he submits the Chambers judge erred by failing to exclude Dr.

Mynhardt’sopinion at either the first step or the second step of the White Burgess analysis. [43] In the Chambers decision, the Chambers judge found that the fact Dr. Mynhardt had 23 years’ experience as a generalphysician, and patients who suffered from cognitive decline and were in long-term care facilities, was sufficient to qualify him to give anopinion as to Ms. Thomas’s mental capacity. That conclusion was open to the Chambers judge and is owed deference. There was alsosufficient evidence to enable the judge to conclude that Dr. Mynhardt’s opinion was relevant.

For these reasons, I am not prepared to findthat the Chambers judge erred by failing to find that Dr. Mynhardt’s opinion did not meet the requirements for threshold admissibility. [44] Accordingly, the admissibility of Dr. Mynhardt’s opinion turns on the second step of the White Burgess analysis. TheChambers judge did not undertake that analysis. In these circumstances, the failure to do so was an error of law. As there was no decisionrelating to the second step, the decision not to strike Dr. Mynhardt’s opinion as inadmissible is not entitled to deference: Dominic atpara 17.

In the result, it is for this Court to undertake the second step analysis by weighing the risks and potential benefits of admittingDr. Mynhardt’s opinion. That analysis is as follows. [45] The probative value of Dr. Mynhardt’s opinion must be measured against what it was offered to prove, being Ms. Thomas’slack of capacity in March 2010. Dr. Mynhardt did not see Ms. Thomas for 13 months before and 18 months after that date. He relied onthe attendance of Mr. Thomas at medical appointments in late 2008 and early 2009 – shortly after Ms.

Thomas had an incident whichresulted in a loss of consciousness and was diagnosed with and treated for cancer – as evidence of continuing mental incapacity at therelevant time. Although the Mini-Mental State Examination is evidence as to her mental capacity in late 2008, there is no evidence as tothe significance of the results of that single exam in these circumstances. There is no evidence that Dr. Mynhardt had any information atall about Ms. Thomas’s activities or symptoms from February 2009 to March 2010, including the fact that she maintained her ownresidence until June 2010.

Further, his opinion can fairly be described as cursory. [46] It is these shortcomings in the evidence, and in Dr. Mynhardt’s opinion, that lead me to conclude it is so unreliable it has littleor no probative value. In contrast, it is a categorical opinion which goes to the heart of the capacity issue. That opinion had the potential

to mislead the Chambers judge or to distort the fact-finding process. As such, it should have been struck at the second step of the WhiteBurgess analysis, as the potential benefits of its admission did not justify the risks. B. Did the Chambers judge err by finding the limitation period did notexpire? 1. Did the Chambers judge err in deciding the limitation period was suspended despite theappointment of Ms. Barth pursuant to an enduring power of attorney? [47] Mr.

Hess submits the Chambers judge erred in deciding that a person who has executed an enduring power of attorney is aperson to whom the suspension of the limitation period under s. 8 of The Limitations of Actions Act (quoted in paragraph [22] above) willapply, notwithstanding the exception created by s. 8(1)(b). With respect, it is my view the

interpretation adopted by the Chambers judgeis correct. [48] As in every case, this legislation must be interpreted in accordance with the modern principle of statutory

interpretationadopted in Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 SCR 27 at para 21. That is: … the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme ofthe Act, the object of the Act, and the intention of Parliament. [49] Further, s. 10 of The

Interpretation Act, 1995, SS 1995, c I-11.2, applies: 10 Every enactment shall be interpreted as being remedial and shall be given the fair, large and liberal construction and

interpretationthat best ensure the attainment of its objects. [50] The modern principle and s. 10 demand a contextual and purposive approach. However, that does not mean the court canignore the ordinary meaning of the words chosen by the legislature. As noted in Ruth Sullivan, Sullivan on the Construction of Statutes,6th ed, (Markham, Ont: LexisNexis, 2014) at 29 [Sullivan]: …

interpretation properly begins with the ordinary meaning — with reading words in their grammatical and ordinary sense — but doesnot stop there. Interpreters are obliged to consider the total context of the words to be interpreted in every case, no matter how plainthose words may seem upon initial reading. [51] The ordinary meaning prevails unless there is a reason to reject it based on contextual considerations. Such considerations –one of which is the avoidance of absurdities – may result in the adoption of an

interpretation that differs from the ordinary meaning, butonly if that

interpretation is plausible (Sullivan at 28–29). The plausible meaning rule requires that the

interpretation is one that thewords of the text can reasonably bear (Sullivan at 191). As LeBel J. said in Re: Sound v Motion Picture Theatre Associations of Canada,2012 SCC 38, [2012] 2 SCR 376: “Although statutes may be interpreted purposively, the

interpretation must nevertheless be consistentwith the words chosen by Parliament” (at para 33). [52] Section 8(1)(

b) provides that the limitation period is not suspended for persons with a mental disability who are representedby “a personal guardian or property guardian pursuant to The Public Guardian and Trustee Act or a decision-maker pursuant to The AdultGuardianship and Co-decision-making Act”. The ordinary meaning of the text is entirely clear. It does not extend to attorneys appointedpursuant to enduring powers of attorney. [53] Faced with this reality, Mr. Hess appeals to the “golden rule” of statutory

interpretation, which addressed circumstances inwhich adopting the grammatical and ordinary sense of the words used would result in an absurdity or inconsistency: see Grey v Pearson(1857), 6 HLC 61 at 106. Sullivan, at 308, summarizes the current state of the law relating to this issue as follows: … The modern understanding of the “golden rule” or the presumption against absurdity includes the following propositions.

(1) It is presumed that the legislature does not intend its legislation to have absurd consequences.

(2) Absurd consequences are not limited to logical contradictions or internal incoherence but include violations of established legalnorms such as rule of law; they also include violations of widely accepted standards of justice and reasonableness.

(3) Whenever possible, an

interpretation that leads to absurd consequences is rejected in favour of one that avoids absurdity.

(4) The greater the absurdity, the greater the departure from ordinary meaning that is tolerated. [54] Mr. Hess argues that the ordinary meaning would result in an absurdity, as the limitation period would be suspended despitethe fact an attorney appointed pursuant to an enduring power of attorney has the authority to commence an action on behalf of thegrantor: Kostiuk v Maher-Kostiuk, 2006 SKQB 545, 290 Sask R 309.

However, even if the exclusion of attorneys could be characterizedas resulting in an absurdity – which in my view it cannot – that absurdity would not be sufficient to permit me to ignore the clearlanguage of the text. Sullivan speaks to this issue at 318: … Although the courts do not expressly say so, their practice appears to be guided by the following principle: the more compelling theabsurdity to be avoided, the greater the departure from ordinary meaning that is tolerated; conversely, the clearer the language of the text,the greater the absurdity required to justify departure from its apparent meaning.

If the language is relatively precise and clear, it receivesconsiderable weight. If the absurdity is relatively obvious and intolerable, most courts will strain language to avoid it and some courtswill go further and significantly alter the legislative text. Absurd results can sometimes be avoided by correcting a clear drafting mistake.

[ 55 ] Here, the “absurdity” is neither obvious nor intolerable. The language is very clear. It cannot reasonably bear the

interpretation proposed by the appellant. That

interpretation is not plausible. Mr. Hess’s argument amounts to an invitation to disregard the clear intentions of the Legislature in order to more fully advance what he sees as the objective of this provision: that is, to create an exception if a party has the capacity to commence an action for a mentally disabled claimant. It is for the Legislature, not the court, to decide where that policy line should be drawn. 2. Did the Chambers judge err in deciding Ms.

Thomas did not have the capacity to commence this proceeding after March 22, 2010? [ 56 ] I have concluded that the Chambers judge erred by failing to strike Dr. Mynhardt’s opinion. That error was important. Dr. Mynhardt’s opinion – unlike the evidence of Mr. Hess, Mr. Roszell and Ms. Ziegler – was specifically referred to by the Chambers judge as material he considered when deciding the respondents rebutted the presumption that Ms. Thomas had the capacity to commence this proceeding (Chambers decision at paras 48–49).

His reliance on evidence that should have been excluded undermines his conclusion as to capacity and calls for intervention by this Court. [ 57 ] Further, and regardless of whether Dr. Mynhardt’s opinion was admissible, it was a palpable and overriding error to conclude that the issue of whether Ms. Thomas lacked the capacity to commence this proceeding was not a genuine issue for trial. The evidence of Mr. Thomas and Ms. Barth as to Ms. Thomas’s mental capacity was

summary and lacking in detail. Both said that her capacity declined and that she exhibited confusion. However, there were no particulars as to the severity and frequency of those symptoms prior to the execution of the 2010 lease, other than Ms. Barth’s statement that she had difficulty with simple tasks like telephone calls at a time that was not specified. There was, in particular, no evidence from Ms. Barth or Mr. Thomas as to Ms. Thomas’s capacity at or about the time the 2010 lease was executed. Dr.

Mynhardt’s evidence suffers from the same shortcomings. [ 58 ] There was, however, evidence from others as to Ms. Thomas’s capacity in March 2010. The evidence of Mr. Hess and Mr. Roszell is based on personal observations at that time. That evidence, while limited, supports the conclusion that Ms. Thomas was capable of understanding and had comprehensible views as to key elements of the 2010 lease, including the term, the option and the rent. The evidence that Ms.

Thomas continued to maintain her own residence and manage her own affairs until June 2010 – albeit with regular and significant assistance from her children – also suggests she was, at a minimum, often able to carry out simple tasks such as making a telephone call. The evidence of Ms. Ziegler as to her observations in January 2012 also has some relevance, notwithstanding that the test for the capacity to execute an enduring power of attorney is different. [ 59 ] Based on this evidence, it was a palpable and overriding error to decide that Ms.

Thomas’s capacity to commence this proceeding was not a genuine issue requiring a trial. To grant

summary judgment, the court must be confident it can find the facts and apply the relevant legal principles to fairly resolve the dispute: see Tchozewski v Lamontagne , 2014 SKQB 71 (WL) at para 30 , [2014] 7 WWR 397 , and Ter Keurs Bros. Inc. v. Last Mountain Valley (Rural Municipality) , 2019 SKCA 10 at para 55 . As Karakatsanis J. commented in Hryniak : [49] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for

summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. [50] These principles are interconnected and all speak to whether

summary judgment will provide a fair and just adjudication. When a

summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. [ 60 ] Here, the shortcomings and the inconsistencies in the evidence were such that the Chambers judge could not have that confidence. Indeed, it appears – based on his conclusion as to the evidence of capacity to contract – the Chambers judge was fully alive to those shortcomings and inconsistencies.

I will repeat that conclusion for ease of reference: [20] … there is insufficient evidentiary record to enable the court to make the factual findings necessary to support the plaintiffs’ contention that Ms. Thomas lacked capacity when the 2010 Lease was signed.

To make that finding would require cogent and direct evidence of her mental capacity at that specific point in time and the evidentiary record before me falls well short of meeting such a threshold. [ 61 ] I am unable to square this statement with the conclusions reached by the Chambers judge that there was no genuine issue for trial as to capacity to commence the proceeding, and that Ms. Thomas lacked that capacity from the day she signed the 2010 lease. If “cogent and direct evidence” of her capacity to contract was required, it was also required as to her capacity to commence a proceeding.

That is particularly so given the presumption in s. 8(2) of The Limitations Act that a claimant is capable of commencing a proceeding with respect to a claim at all times unless the contrary is proved. [ 62 ] It also appears the Chambers judge committed an extricable error of law by applying the wrong test as to whether Ms. Thomas had the capacity to commence this proceeding. His reasoning in relation to that issue is at paragraphs 40–44 of the Chambers decision. That reasoning did not deal with the legal test for capacity to commence this proceeding.

Rather, it dealt with the difference between the capacity to execute a power of attorney and the capacity to enter into the 2010 lease, and resulted in the following conclusion: [44] At most, granting a power of attorney requires the grantor to be able to understand, in broad terms, the nature and effect of an enduring power of attorney. On the other hand, for Ms. Thomas to have understood the nature and effect of the 2010 Lease, she needed to have a specific and significant degree of insight as to how its terms would affect her rights and interests over a potentially 20-year period.

[63] In my view, this reasoning demonstrates that the Chambers judge conflated the issue of capacity to contract with capacity tocommence the proceeding. The respondents suggest, and I agree, that the legal test for capacity turns on the nature of the task for whichcapacity is required: see Babiuk v Babiuk, 2014 SKQB 320 at paras 43–47, 458 Sask R 160 [Babiuk], and Wolfman-Stotland v Stotland,2011 BCCA 175 at paras 26–27, 333 DLR (4th) 106 [Stotland].

Both Babiuk and Stotland refer to a “hierarchy of levels of capacity” andadopt the following statement from Calvert (Litigation Guardian of) v Calvert (1997), (ON SC), 32 OR (3d) 281(WL) (Gen Div), aff’d (1998), (ON CA), 37 OR (3d) 221 (CA), leave to appeal refused, [1998] 1 SCR vi: [56] There is a distinction between the decisions a person makes regarding personal matters such as where or with whom to live anddecisions regarding financial matters. Financial matters require a higher level of understanding. The capacity to instruct counsel involvesthe ability to understand financial and legal issues.

This puts it significantly higher on the competency hierarchy. It has been said that thehighest level of capacity is that required to make a will: Park, supra, at 1426. [64] The test for capacity to instruct counsel is helpful in this context. In Mills v Radons, 2018 SKQB 237, a matrimonial claim,Tholl J. (as he then was) dealt with whether the applicant had the capacity to instruct counsel, bring the application and conduct thelitigation: [7] … The capacity to instruct counsel and conduct litigation requires a higher level of competency as compared to the decisions toseparate or seek a divorce.

The person must be able to understand financial and legal issues with the assistance of counsel and understandthe consequences of their decisions regarding the litigation. [65] In Costantino v Costantino, 2016 ONSC 7279, Price J. suggested a similar test: [47] To meet the test for capacity to instruct legal counsel, a person must:

a) Understand what they have asked the lawyer to do for them and why;

b) Be able to understand and process the information, advice, and options the lawyer presents; and

c) Appreciate the advantages and drawbacks and the potential consequences associated with the options they are presented with. [66] The factors referred to in these decisions are – unless the claimant lacks the financial capacity to retain counsel – relevant toassessing capacity pursuant to s. 8 of The Limitations Act.

They call for a substantially different approach than the test for capacity tocontract that appears to have been applied by the Chambers judge. [67] For these reasons, it is my opinion the Chambers judge made extricable errors in principle and made a palpable and overridingerror in deciding that the issue of whether Ms. Thomas lacked capacity to commence proceedings and that the limitation period wasaccordingly suspended was not a genuine issue for trial. 3. Did the Chambers judge err in deciding that the 2010 lease was unconscionable? [68] Just as reliance on Dr.

Mynhardt’s opinion was an error in principle in relation to the issue of capacity to commenceproceedings, it was an error in principle in relation to the decision the 2010 lease was unconscionable. Further, just as the Chambersjudge expressly relied on Dr. Mynhardt’s opinion when he decided Ms. Thomas lacked capacity to commence this proceeding, heexpressly relied (at para 51) on his conclusions with respect to s. 8(2) of The Limitations Act and the evidence of Mr. Thomas, Ms. Barthand Dr. Mynhardt as a basis for concluding that Ms.

Thomas suffered from “cognitive decline which increased her vulnerability to enterinto an unfair bargain”. [69] Although unconscionability does not necessarily engage questions of mental capacity, mental capacity was a central issue inthis case. The issue was Ms. Thomas’s mental capacity on March 22, 2010, the date she executed the 2010 lease. In order to demonstrateunconscionability, the respondents were obliged to demonstrate inequality – in the sense discussed below – between Ms. Thomas andMr. Hess, based, in large part, on mental capacity.

As such, the gaps and inconsistencies in the evidence relating to that issue exploredabove are equally relevant to proof of inequality. Just as the Chambers judge could not have the confidence to make the necessaryfindings of fact and apply the law in relation to the capacity to commence proceedings, he could not have that confidence in relation toinequality, and thus, in relation to unconscionability.

That being so, he erred by deciding unconscionability was not a genuine issue fortrial. [70] It is also my view that the Chambers judge erred in his identification and application of the legal test for unconscionability.The Chambers judge stated (at para 50) that a plaintiff must establish “inequality in the position of the parties arising out of theignorance, need or distress of the plaintiff”. He found (at para 51) that Ms. Thomas “was in a weaker bargaining position as compared toMr.

Hess” and that she was “suffering from cognitive decline which increased her vulnerability to enter into an unfair bargain”. [71] Although the case law sometimes refers simply to a requirement to prove inequality between the parties, it is not sufficient forthe evidence to disclose simple inequality, regardless of degree. The test for unconscionability calls for something more.

In Van de GeerEstate v Penner, 2006 SKCA 12, [2006] 7 WWR 575 [Van de Geer], Richards J.A. (as he then was) adopted the following formulationof the test: [38] In order to mount a successful argument of unconscionability, a plaintiff must first establish an inequality in the position of theparties arising out of the ignorance, need or distress of the weaker which left him or her in the power of the stronger. Second, the plaintiffmust establish substantial unfairness in the bargain.

When these two elements have been shown, a presumption of fraud is raised and thestronger party must show, in order to preserve the bargain, that it is fair and reasonable. See: Harry v. Kreutziger (1978), (BC CA), 95 D.L.R. (3d) 231 (B.C.C.A.) at p. 237; Knupp v. Bell et al. (1966), (SK KB), 58 D.L.R. (2nd) 466 at473 (Sask. Q.B.) aff’d (1968), (SK CA), 67 D.L.R. (2d) 256 (Sask. C.A.). (Emphasis added)

[72] That statement of the test is from the reasons of Davey J.A. in the leading decision in Morrison v Coast Finance Ltd. (1965), (BC CA), 55 DLR (2d) 710 (BC CA), and was also adopted in Knupp v Bell (1968), (SK CA), 67DLR (2d) 256 (Sask CA) [Knupp]. In Knupp, Woods J.A. also commented as follows: “If the circumstances are such that the strongerparty is given dominion over the weaker, then the one getting the benefit is required to prove the transaction was just, fair andreasonable” (at para 7). [73] This issue is explored in the thorough per curiam decision in Downer v Pitcher, 2017 NLCA 13, 409 DLR (4th) 542.

Havingnoted the lack of uniformity in the language used in the case law to describe the necessary degree of inequality, the court therecommented as follows: [18] At most, the adjectives chosen – all of which emphasize that something out of the ordinary should be present – should beregarded simply as shorthand ways of emphasizing that something substantially more than bargaining imbalance simpliciter and aprecise measuring of the benefits of the transaction in a meticulous search for any slight difference in relative advantage anddisadvantage, is required. [74] As it further commented: [39] It is not any inequality of position that will do.

As Coutu J. observed in Floyd v. Couture, every contract involves some disparitybetween the parties in terms of bargaining power. It must be such that it has the potential for seriously affecting the ability of the relief-seeker to make a decision as to his or her own best interests and thereby allows the other party an opportunity to take advantage of theclaimant’s personal or situational circumstances. That is why terms such as “overwhelming” or “substantial” or “special” have beenused.

While trying not to fall back into the linguistic trap I have eschewed previously, I would venture to say that what is meant by suchterminology is that the inequality must relate to a special and significant disadvantage that has the potential of overcoming the ability ofthe claimant to engage in autonomous self-interested bargaining. [40] Furthermore, there has to be something more than mere inequality of information between the parties as to their respective legalpositions. … [75] Chief Justice McLachlin and Côté J. expressed a similar view in their minority dissenting judgment in Douez v Facebook, Inc.,2017 SCC 33, [2017] 1 SCR 751, as follows: [145] … Inequality of bargaining power, even if it were established here, does not, on its own, give the court reason to interfere withthe freedom to contract.

As noted by Angela Swan and Jakub Adamski in Canadian Contract Law (3rd ed. 2012), at § 9.114: The mere fact that, as might happen in very many transactions, the parties are not equally competent in looking after their own interestsor equally informed is not a basis for relief. There has to be, as has been suggested, some relation of dependence or likelihood of undueinfluence, i.e., some element of procedural unconscionability, inequality or unfairness, and a bad bargain, i.e., some element ofsubstantive unfairness. [Emphasis in original.] [76] Similarly, in John D.

McCamus, The Law of Contracts, 2d ed (Toronto: Irwin Law, 2012) at 426–427, Professor McCamusbegins his discussion of unconscionability with the following statement: In order to set aside a transaction on the ground of unconscionability, one must establish both inequality of bargaining power in the sensethat one party is incapable of adequately protecting his or her interests and undue advantage or benefit secured as a result of thatinequality by the stronger party. (Emphasis added) [77] Each of these statements supports the conclusion that a party relying on the doctrine of unconscionability must show there isinequality to a degree that the stronger party has power over the other to the extent that the ability of the weaker party to adequatelyprotect their own interests is materially undermined.

They are consistent with the test specified in Van de Geer, which calls for the partyrelying on the doctrine to demonstrate “ignorance, need or distress of the weaker which left him or her in the power of the stronger”.They are also consistent with Dolter v Media House Productions Inc., 2002 SKCA 140, 227 Sask R 153 – the other decision of thisCourt cited by the Chambers judge – which refers with approval to a test that calls for proof of “significant inequality in bargainingposition” and that “[t]he stronger party has used its position of power in an unconscionable manner to achieve a material advantage overthe weaker party”.

Mere inequality is not enough. [78] For these reasons, it is my respectful opinion that the Chambers judge committed an extricable error of principle in relation tothe identification and application of the legal test for unconscionability. That error contributed to his conclusion that the 2010 lease wasunconscionable. That conclusion was a palpable and overriding error, as the gaps and inconsistencies in the evidence relating toMs.

Thomas’s mental capacity were such that the Chambers judge could not have the confidence to find the facts and apply the law tofairly resolve this dispute, regardless of whether he applied the correct test. V. CONCLUSION [79] In Viczko v Choquette, 2016 SKCA 52, 396 DLR (4th) 449, this Court, having found that the Chambers judge could not havebeen confident granting

summary judgment based on the evidence before him, found that an order to call oral evidence pursuant toQueen’s Bench Rule 7-5(3) would enable the judge to make the necessary findings. I am not satisfied that is the appropriate course inthis case, as more may be required to provide a fair and just adjudication than evidence from the affiants. There is a genuine issue fortrial. [80] In the result, the

summary judgment is set aside. It is for the parties to decide whether, for purposes of the trial, they will

apply for an order pursuant to Rule 7-6 of The Queen’s Bench Rules that would enable them to use any of the affidavit evidence presented in the

summary judgment application, limit questioning or otherwise streamline the process for finally resolving this dispute. [ 81 ] The appellant shall have his costs assessed in the usual way. “Barrington-Foote J.A.” Barrington-Foote J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Caldwell J.A.” Caldwell J.A.