Figley v Figley, 2019 SKCA 94

Court of Appeal for Saskatchewan Docket: CACV3237 Citation: Figley v Figley , 2019 SKCA 94 Date: 2019-09-20 Between: Ronald Ira Figley Appellant (Applicant/Respondent) And Stanley Ray Figley Appellant (Non-Party/Respondent) And Eugene Walter Figley Respondent (Respondent/Applicant) And Clayton Barry Respondent (Non-party) And The Public Guardian and Trustee of Saskatchewan as administrator of the Estate of Raymond Figley Non-Party (Respondent) Before: Richards C.J.S., Whitmore and Leurer JJ.A.

Disposition: Appeal dismissed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Mr. Justice Whitmore The Honourable Mr. Justice Leurer On Appeal From: 2018 SKQB 102 , Saskatoon Appeal Heard: September 4, 2019 Counsel: Jay Watson for the Appellants Curtis Onishenko and Paige Van de Sype for Eugene Figley Karen Prisciak, Q.C., for Clayton Barry Richards C.J.S. I.

Introduction [ 1 ] This appeal unfolds against the backdrop of drawn-out and involved litigation rooted in the estate of Raymond Figley. [ 2 ] The appellants, Ronald and Stanley Figley, seek to set aside two decisions made by a case management judge. In the first decision, the judge refused to order that Raymond Figley’s lawyer be the subject of questioning.

In the second, the judge ordered that $50,000 be paid out of Raymond Figley’s estate to cover legal fees incurred by one of his sons and prohibited two more of his sons from paying their legal bills out of the proceeds of a farming operation grounded in estate property. [ 3 ] As explained below, this appeal must be dismissed. The case management judge did not err in making the orders in question.

II. basic background [ 4 ] Given that most of the individuals involved in this appeal have the same surname, I will typically refer to them by their first names in the interest of clarity and economy of expression. [ 5 ] Raymond Figley died in October of 2007. He left an estate of considerable value. [ 6 ] Raymond executed a will and a codicil to that will in September of 2007. Clayton Barry was his lawyer. [ 7 ] Ronald Figley, one of Raymond’s sons, commenced a Queen’s Bench action alleging that Raymond had lacked testamentary capacity and had been under undue influence when he made the will and codicil.

In March of 2008, Dovell J. ordered that the will and the codicil be proven in solemn form. Eugene Figley, another of Raymond’s sons, was given carriage of the relevant proceedings. [ 8 ] Several other actions were commenced in relation to the estate and the assets in the estate. In light of these multiple proceedings, Popescul C.J.Q.B. appointed a case management judge in 2012. [ 9 ] In December of 2017, Ronald applied to the case management judge for an order allowing Mr. Barry to be questioned and for an order requiring the disclosure of Mr. Barry’s files.

The case management judge declined to grant the former request but did direct the disclosure of the files. I will refer to this as the “Barry Order”. [ 10 ] In January of 2018, Eugene applied to the case management judge for an order respecting payment of his legal fees and for an

order that the Public Guardian and Trustee take control of the land and assets of Figley Farms Ltd., a company that formed part of Raymond’s estate and which owned property used by Ronald and by Stanley Figley, another of Raymond’s sons, in their farming operations. The case management judge ordered that $50,000 be paid from the estate to the law firm of McKercher LLP to cover legal fees incurred by Eugene and also ordered that Ronald and Stanley be prohibited from using any proceeds from the farming operation for the payment of their legal bills. I will refer to this as the “Costs Order”. III.

Analysis [ 11 ] Ronald and Stanley contest both the Barry Order, to the extent it concerns the questioning of Mr. Barry, and the Costs Order. A. The Barry Order [ 12 ] In order to properly consider Ronald’s and Stanley’s submissions in relation to the Barry Order, it is necessary to examine the Order and the circumstances surrounding it in additional detail. [ 13 ] Mr. Barry provided legal advice to Raymond in connection with his will and codicil. He also witnessed Raymond’s signing of the will and the codicil.

In the context of the proceedings to prove Raymond’s will and codicil in solemn form, Ronald filed a notice of application seeking leave pursuant to Rule 5-20 of The Queen’s Bench Rules to “question [Mr. Barry] who has personal knowledge relevant to the issues in the action”. [ 14 ] Rule 5-20 prescribes the situations in which a person like Mr. Barry may be questioned.

In relevant part, it reads as follows: 5-20(1) The Court may grant leave to question any person who may have information relevant to any matter in issue in the action, other than an expert engaged by or on behalf of a party in preparation for contemplated or pending litigation. …

(3) An order pursuant to subrule (1) must not be made unless the Court is satisfied that: (

a) the applicant has been unable to obtain the information from other persons whom the applicant is entitled to question or from the person the applicant seeks to question; (

b) it would be unfair to require the applicant to proceed to trial without having the opportunity of questioning the person; and (

c) the questioning will not: (

i) unduly delay the commencement of the trial of the action; (ii) entail unreasonable expense for other parties; or (iii) result in unfairness to the person the applicant seeks to question. … [ 15 ] In support of the application for leave to question Mr. Barry, Ronald filed a brief affidavit in which he stated that Mr. Barry had acted for Raymond in connection with the will and codicil. Ronald then went on to describe the efforts that had been made to examine Mr. Barry: 6.

Attempts have been made to question Clayton Barry in this action immediately following the Court of Appeal hearing that upheld the decision not to consolidate this action with other actions in which Clayton Barry is a party. Immediately following the Court of Appeal hearing where the justice of the court stated that it was open to me to examine Clayton Barry as a non-party under the Rules, I instructed my counsel to make arrangements to examine Clayton Barry; however, I have not been able to question Clayton Barry. The following attempts have been made to examine Clayton Barry in this action.

A verbal notice was provided to the solicitor for Clayton Barry, namely Karen Prisciak, QC at the hearing of the Court of Appeal in October, 2017, which was immediately followed up with an email dated October 19, 2017 at 11:50 AM and a further follow-up letter November 10, 2017. True copies of the email and letter are attached to this Affidavit and marked as Exhibit “A”. As of the end of November, 2017, no dates and no reply were provided by the solicitor for Mr. Barry. As of the date of this Affidavit, no reply or dates for questioning have been provided by the solicitor for Mr.

Barry. [ 16 ] The case management judge had little difficulty dismissing Ronald’s application. He indicated that he needed only to refer to Rule 5-20(3)(a). As just noted, this provision says an order allowing questioning of a non-party can be made only if the applicant is unable to obtain the information from other persons who the applicant is entitled to question or from the person the applicant seeks to question. In this regard, the case management judge explained as follows: [12] Eugene Figley was examined for discovery, as questioning was then called, in 2009.

The applicant had the opportunity at that time to question Eugene Figley in his capacity as the purported executor of the estate and the person advancing the validity of the Will. Eugene Figley would have to inform himself of the discussions that the deceased had with his lawyer surrounding the Will, including documents prepared by the lawyer, and provide answers to questions surrounding that situation to Ronald Figley. Ronald Figley did not ask any questions of Eugene Figley to attempt to obtain this information. He has not satisfied this precondition.

The application fails on this basis. [ 17 ] Ronald and Stanley take issue with this line of reasoning. They indicate that, contrary to what the case management judge believed, Eugene had been questioned and, in the course of questioning, had undertaken to provide an authorization to allow Ronald to

examine Mr. Barry about his dealings with Raymond. On this front, they emphasize the following part of the transcript of Eugene’s questioning: MR. HILLSON: In any event, I believe if you’re asking will we provide you with a blanket authorization that you can contact former solicitors of Ray Figley , the answer is yes, we will. A Yeah, Okay. … Q Maybe I will ask this as a general question, what -- what facts are you relying upon that your father had capacity on September the 17th and September 21st, 2017? Like what observations do you have that date?

A Clayton Barry and them would know when they’re having the will signed. Q No, I can ask them, I’m asking you. A For myself, if I look at the health records that I have at the office, I can tell you who worked that day. I can’t tell you for September l7th. Q Well, tell me what happened on September 17th, did you take your father down to the McDougall Gauley law office? A Yeah. … Q And when you went to the office did you go into the meeting ? A No, never did.

I was able to sit on the bench outside. … … Q Do you recall any discussions that you had w i th your father about his estate planning wishes, like what he wanted to do with his property upon his death? A I wasn’t doing anything with dad’s estate planning, he did his own estate planning. Q I understand that. I’m asking you, did he have any discussions with you? A The only thing he said was that … He said that damn Clayton Barry screwed up because this land location should have been this.

That was after he signed the will. [ 18 ] Ronald and Stanley then point to paragraph 6 of Ronald’s affidavit, quoted above, and submit that Mr. Barry was unresponsive to the attempts to examine him and that, consequently, they were unsuccessful in using the authorization to obtain information from him. [ 19 ] I am unable to give effect to Ronald’s and Stanley’s arguments on this point. The reality is that, at best, it is entirely unclear whether the transcript on which Ronald and Stanley now rely was put before the case management judge for purposes of his adjudication of the application for leave to question Mr.

Barry. It was not exhibited to the affidavit Ronald filed in support of the application. Somewhat more generally, Ronald’s affidavit made no reference of any sort either to the fact that Eugene had been questioned or that he had been questioned and could provide no information about the making of the will beyond the fact that he had driven Raymond to Mr. Barry’s office.

Nor is there any suggestion by Ronald’s and Stanley’s current counsel (a different lawyer argued the application before the case management judge) that either the transcript of the questioning or a copy of the authorization provided to Ronald were otherwise brought to the attention of the case management judge. [ 20 ] It may be that the transcript and the authorization were on the Court file, but the case management judge could not have been expected, on his own initiative, to review the file in order to ascertain whether it might contain something relevant to Ronald’s application.

Simply put, Ronald failed to develop an adequate record for the purposes of his application. He did not establish, as per Rule 5-20(3)(a), that he had been unable to obtain the information from other persons whom he was entitled to question or from Mr. Barry himself. In this regard I note, parenthetically, that the nature of the information sought through the proposed questioning of Mr.

Barry has never been identified or specified. [ 21 ] In my respectful view, it is not open to Ronald, on appeal to this Court, to point to documents that he should have brought to the attention of the case management judge and then argue that the case management judge erred by failing to consider those documents. B. The Costs Order [ 22 ] As explained above, the Costs Order made by the case management judge directed that McKercher LLP be paid $50,000 from Raymond’s estate to cover legal fees incurred by Eugene in his efforts to prove the will and codicil in solemn form.

As well, the case management judge ordered that Ronald and Stanley could not pay their legal bills out of proceeds from their farming operations. In this latter regard, it is clear from the context in which the case management judge made his order that he was referring to Ronald’s and Stanley’s farming operations only to the extent those operations involve assets and land forming part of Raymond’s estate. Ronald and Stanley contest both wings of the Costs Order. [ 23 ] Let me begin with the $50,000 payable to McKercher LLP. Ronald and Stanley submit this relief was never requested by Eugene.

They contend the case management judge should not have granted it on his own initiative and without giving them an

opportunity to make submissions on the matter.

This argument is grounded in the language of Eugene’s notice of application wherein he described the relief being sought as follows: An Order that [Eugene’s] reasonable solicitor and client costs for the within matter be paid from the Estate going forward and until Trial[.] Ronald and Stanley submit that, by virtue of the requested relief being framed in this way, the issue before the case management judge was Eugene’s legal expenses going forward, not the legal expenses he had accumulated to date. [ 24 ] In my opinion, Ronald’s and Stanley’s position is based on an unsustainably narrow reading of the record.

It is important, of course, to clearly identify the relief sought in an application and there is little doubt that Eugene’s notice of application could have been drafted more precisely. However, in the whole of the circumstances here, it is difficult to see how Ronald and Stanley would not have been put on notice that Eugene was seeking an order, not just in relation to his future legal expenses, but also in relation to the expenses he had already incurred. This is because, in the brief affidavit filed in support of his application, Eugene stated as follows: 15.

I am committed to moving the Proof in Solemn Form Action to a trial. It has been extremely difficult for me to pay legal fees to deal with the multiplicity of lawsuits initiated by my siblings. I have been working as a heavy equipment operator but due to market conditions have not had regular employment. Thankfully, McKercher LLP has been patient and has agreed to carry some of their fees to this point which are currently over $50,000. … 17. I request an Order that a trial be set for the Proof of Solemn Form Action.

I request an Order that my reasonable legal fees with respect to the Proof of Solemn Form Action be paid from the Estate. … [ 25 ] In light of this, and in the absence of any information as to the nature of the oral submissions made to the case management judge, or of the way in which matters unfolded before him, I am not prepared to conclude that the case management judge denied procedural fairness to Ronald and Stanley by granting relief against them without notice.

They bear the onus of establishing an error of this sort, and in my respectful view, they have failed to discharge that onus. [ 26 ] I turn now to the second aspect of the Costs Order. This is the decision of the case management judge that directed Ronald and Stanley not to use proceeds of their farming operations to pay legal costs. Ronald and Stanley object to this part of the Costs Order on the same basis that they object to the payment of $50,000 to McKercher LLP.

They say this relief was not requested by Eugene and that the case management judge granted it on his own initiative and without giving them an opportunity to make submissions on the matter. [ 27 ] This argument must also fail. That is because, in his notice of application, Eugene sought an order seeking to have land and assets in the estate removed from the control of Ronald and Stanley. More specifically, Eugene claimed the following relief: 3. An Order that the Public Guardian and Trustee take control of the land and assets of Figley Farms Ltd. for the 2018 crop year and until further order from this Court; 4.

An Order that the Public Guardian and Trustee conduct a review of the farming income and expenses over the last 10 years to try to determine the true profits Stanley Figley and Ronald Figley received from use of the Estate’s farmland[.] [ 28 ] Eugene was motivated in part to seek these orders because, as he explained in his affidavit filed in support of the application, Ronald and Stanley had paid significant legal fees using income from farming operations based on estate assets.

This was of concern to Eugene because, while he was finding it extremely difficult to pay the legal fees he incurred in attempting to prove Raymond’s will and codicil in solemn form, Ronald and Stanley were opposing his efforts in that regard by using income derived from estate assets.

Overall, the materials filed by Eugene made it readily apparent that he was seeking, among other things, to level the playing field by putting the farming assets under the control of the Public Guardian and Trustee and, thereby, denying Ronald and Stanley the ability to fund their litigation using estate resources. [ 29 ] This is the background against which the case management judge made the order directing that Ronald and Stanley not use proceeds from their farming operations for the payment of their legal bills.

In effect, he granted Eugene a subset of the relief that he had requested, i.e., rather than taking the land and farming assets owned by the estate wholly out of the hands of Ronald and Stanley by putting them under the control of the Public Guardian and Trustee, the case management judge simply barred Ronald and Stanley from using farming income to pay their legal fees. I am unable to see how this involved any sort of procedural unfairness to Ronald and Stanley. We do not know exactly how things unfolded in the proceeding before the case management judge.

Nonetheless, it is apparent that the key arguments Ronald and Stanley might have made to oppose giving control of the farming assets in the estate to the Public Guardian and Trustee would have also been applicable to the notion of denying them access to farm income to pay their legal expenses.

Relatedly, it is difficult to see what arguments they might have made in opposition to the order denying them access to income from their farming operations that would not have been made in opposition to the order to give control over the land and assets to the Public Guardian and Trustee. [ 30 ] As indicated above, Ronald and Stanley bear the burden of establishing that they were denied procedural fairness by the way in which the proceedings played out before the case management judge.

In my respectful view, they have failed to do so in relation to the aspect of the Costs Order that prohibits them from using the income from their farming operations to pay their legal fees. IV. conclusion [ 31 ] I conclude that this appeal must be dismissed. The case management judge made no error in either the Barry Order or the Costs Order. [ 32 ] In relation to the appeal from the Barry Order, Ronald and Stanley shall forthwith pay costs, calculated on Column 2, to Mr.

Barry. In relation to the appeal from the Costs Order, Ronald and Stanley shall forthwith pay Eugene’s reasonable solicitor and client costs. As requested by Eugene, those costs shall be payable to the estate. “Whitmore J.A.” for Richards C.J.S. I concur. “Whitmore J.A.” Whitmore J.A. I concur. “Leurer J.A.” Leurer J.A.