Charmaine Boreen Appellant/Respondent (Plaintiff) v. Mosaic Esterhazy Holdings ULC, 2020 SKCA 132

Court of Appeal for Saskatchewan Docket: CACV3376 Citation: Boreen v Mosaic Esterhazy Holdings ULC , 2020 SKCA 132 Date: 2020-11-25 Between: Charmaine Boreen Appellant/Respondent (Plaintiff) And Mosaic Esterhazy Holdings ULC Respondent/Applicant (Defendant) Before: Ottenbreit, Barrington-Foote and Kalmakoff JJ.A. Disposition: Application for fresh evidence granted Appeal dismissed Written reasons by: The Honourable Mr. Justice Ottenbreit In concurrence: The Honourable Mr. Justice Kalmakoff Concurring reasons by: The Honourable Mr.

Justice Barrington-Foote On appeal from: QBG 189 of 2015, Yorkton Appeal heard: September 11, 2020 Counsel: David Rusnak, Q.C. for the Appellant Josh Morrison for the Respondent Ottenbreit J.A. I. Introduction [ 1 ] Charmaine Boreen appeals a

summary judgment of a Court of Queen’s Bench Chambers judge dismissing her claim against a number of defendants, including Mosaic Esterhazy Holdings ULC [Mosaic]: Boreen v Mosaic Esterhazy Holdings ULC (22 January 2019) Yorkton, QBG 189 of 2015 [ Decision ]. [ 2 ] The Decision dealt with a number of applications arising out of a claim by Ms. Boreen against Mosaic and others.

For the purposes of the appeal, only the Chambers judge’s determinations in respect of Mosaic need be addressed. [ 3 ] Mosaic applied to adduce fresh evidence in the form of a transcript of the Chambers proceedings and an affidavit of its corporate counsel, Braden Marianchuk, which attached copies of emails between its external counsel and the Dispute Resolution Office and counsel for Ms. Boreen. Ms. Boreen did not object to the application and the admission of the evidence. That application has, therefore, been granted. [ 4 ] For the reasons set out hereafter, the appeal of Ms. Boreen is dismissed. II.

Facts and Background [ 5 ] Ms. Boreen was the common law wife of Lloyd Holmes, who died in August of 2014. At the date of his death, Mr. Holmes was legally married to Glenda Holmes from whom he had separated in 1993. Mr. Holmes and Ms. Holmes did not formalize their separation by entering into a separation or matrimonial property agreement. At no time did they legally divorce. [ 6 ] Mr. Holmes had worked for Mosaic since 1974 and was, at the date of his death, a member of the Mosaic Pension Plan [Plan].

He had not yet begun to draw pension benefits at the date of his death. [ 7 ] In July of 2013, a few months after he learned he was terminally ill, Mr. Holmes contacted Bernadine Moore, who worked in the Mosaic Human Resources department, about the possibility of changing the designated beneficiary of his pension to include Ms. Boreen. Ms. Moore contacted Aon Hewitt, the administrator of the Plan, about Mr. Holmes’ request. Aon Hewitt provided a Declaration of Spousal Status form [Declaration] to Ms. Moore to achieve Mr. Holmes’ request. Ms. Moore forwarded it to Mr.

Holmes for his review and asked him to complete it. [ 8 ] Mr. Holmes then attended on Ms. Moore on July 16, 2013 and completed and signed the Declaration. In it, Mr. Holmes designated Ms. Boreen as his beneficiary and his children as contingent beneficiaries pursuant to The Pension Benefits Act, 1992 , SS 1992, c P-6.001 [ PBA ]. The Declaration falsely stated that he had a former spouse who was “not entitled to receive any portion of [his] benefits under the terms of a court order or interspousal agreement”. No such court order or interspousal agreement existed.

The Declaration was sent to Aon Hewitt, which confirmed that it would update its database to reflect Ms. Boreen as Mr. Holmes’ spouse and his children as contingent beneficiaries. [ 9 ] However, on receipt of the signed Declaration, Aon Hewitt advised Ms. Moore that if Mr. Holmes was still legally married to Ms. Holmes, she would be entitled to receive the pension benefits and, therefore, the Declaration had not been properly filled out. Ms. Moore met with Mr. Holmes in late July or early August and told him this. She also advised him that Ms. Holmes would receive his

pension unless he legally divorced her or had her sign a form waiving her entitlement to the pension. [ 10 ] Ms. Moore encouraged Mr. Holmes to seek legal advice about the matter. Mr. Holmes appeared to understand what he was told but advised Ms. Moore that he did not want to spend any money on a lawyer to deal with the issue. He said he had no interest in getting Ms. Holmes to sign a waiver. He also took no steps to obtain a divorce. [ 11 ] In January of 2014, Mr. Holmes received a pension statement dated December 31, 2013 [Pension Statement], as mandated by s. 13(1) (

b) the PBA , indicating that Ms. Boreen was the beneficiary of his pension under the Plan. [ 12 ] On August 3, 2014, Mr. Holmes passed away. Accordingly, Ms. Holmes, as the legal surviving spouse pursuant to the PBA , requested the pension benefits be paid to her pursuant to s. 33 of that Act. [ 13 ] In July of 2015, Ms. Holmes sought a declaration that she was the surviving spouse of Mr. Holmes for the purposes of the PBA , as well as an order directing Mosaic to pay Mr. Holmes’ pension benefits under the Plan to her. Ms. Boreen opposed Ms.

Holmes’ application, but was unsuccessful (see: Holmes v Boreen , 2015 SKQB 333 , [2016] 4 WWR 558). An appeal to this Court was dismissed orally (see: Boreen v Holmes (3 October 2016) Regina, CACV2806). [ 14 ] In August of 2015, Ms. Boreen commenced this action seeking: damages against Mosaic for breach of contract and negligent misrepresentation; damages against Ms. Holmes for inducing Mosaic’s breach of contract; damages against a lawyer, Shawn Patenaude, for negligence relating to the drafting of Mr. Holmes’ will; and damages against one of Mr.

Holmes’ daughters as executor of his estate for debts allegedly owed by Mr. Holmes to Ms. Boreen. [ 15 ] Mosaic initially applied for an order striking Ms. Boreen’s statement of claim as being frivolous and vexatious pursuant to Rule 7-9(2)(

b) of The Queen’s Bench Rules [ Rules ]. Filed in support of that application was the December 14, 2016 affidavit of Ms. Moore. [ 16 ] When Ms. Boreen asked to cross-examine on Ms. Moore’s affidavit, Mosaic agreed and suggested that, in addition, Ms. Boreen also be cross-examined and the parties proceed to a

summary judgment application granting Mosaic’s request for the relief sought in its statement of defence. Ms. Boreen agreed to both her cross-examination as well as to proceed by way of

summary judgment. This agreement was reflected in a consent order dated February 16, 2017 [Consent Order]. In the Consent Order, Mosaic was specifically granted leave to bring an application for

summary judgment. On this basis, Mosaic served and filed a notice of application for

summary judgment. [ 17 ] At the time the application was heard, there was no certificate on file showing that mandatory mediation pursuant to s. 42(1.1) of The Queen’s Bench Act, 1998 , SS 1998, c Q-1.01 [ QBA ], had been completed. [ 18 ] Prior to the hearing of the

summary judgment application, counsel for Mosaic addressed the mediation requirement by writing to the Dispute Resolution Office requesting a postponement of the mediation requirement and specifically advising that “I have spoken to Mr. Rusnak [counsel for Ms. Boreen] and Ms. Hart [counsel for Ms. Holmes] who are each consenting to our request ” (emphasis added). An official at the Dispute Resolution Office replied that, because Mr. Patenaude had not filed his statement of defence, a postponement order was not necessary.

This exchange between Mosaic’s counsel and the Dispute Resolution Office was copied to counsel for Ms. Boreen. [ 19 ] On or about February 22, 2017, the Chambers judge heard Mosaic’s application for

summary judgment brought against Ms. Boreen with respect to her claim for breach of contract. During that hearing, both Ms. Boreen and Ms. Moore were cross-examined. III. The Decision [ 20 ] The Chambers judge began by noting the terms of the Consent Order. He adopted the

summary of relevant facts set out in Mosaic’s brief except where those facts were modified by the cross-examinations of Ms. Moore and Ms. Boreen. The Chambers judge then reviewed the germane law regarding

summary judgments and the striking of pleadings under Rule 7-9 of the Rules . [ 21 ] He noted that Ms. Boreen asserted a claim for negligent misrepresentation. In respect of this, he made the following factual findings: [17] The amended claim asserts that Mosaic negligently misrepresented to Lloyd Holmes that Ms. Boreen was the lawful beneficiary of his pension. This assertion is expressly denied by Mosaic. The testimony of Bernie Moore, in both her affidavit and cross-examination, confirms that Mr. Holmes had access to all pertinent information surrounding his pension benefits.

He had been specifically advised, and understood, that in order for Ms. Boreen to receive any portion of his pension, he would be required to either divorce Glenda Holmes, or arrange for her to sign a waiver of her interest in his pension. For whatever reason, Mr. Holmes elected to do neither. [ 22 ] The Chambers judge then reviewed the five essential elements of the tort of negligent misrepresentation. In respect of the first of those five elements, he found there was no special relationship between Mosaic and Ms.

Boreen. [ 23 ] With respect to the second element, i.e., whether there was an untrue, inaccurate or misleading representation, he found as follows: [21] I am satisfied, based on the affidavit and subsequent testimony of Ms. Moore, that information respecting Mr. Holmes’ pension beneficiary was clearly explained to him. He was aware that, unless he obtained a divorce from Glenda, or she signed a waiver document relinquishing her claim to the pension, the pension would ultimately be received by her upon his death. I have reached this conclusion appreciating that Mr.

Holmes had erroneously signed the Declaration of Spousal Status form with the apparent hope of re-assigning his pension beneficiary. His misunderstanding in this regard was pointed out to him by Ms. Moore. He was aware that more would need to be done in order to re-assign the pension. He was encouraged to seek legal advice on the issue of divorce but expressed little interest. He similarly expressed little interest in attempting to have Glenda sign a waiver of her claim.

[22] Based on the evidence presented, I am satisfied that the information Mosaic communicated to Mr. Holmes was true and accurate. The reason why Mr. Holmes elected not to take the further steps required to re-assign his pension beneficiary, if that was his intention, is unknown. It would be mere speculation to attribute motivation to his actions or lack of actions. [ 24 ] The Chambers judge found that there was no basis in the evidence to assert that Mosaic had acted negligently in communicating the spousal benefit information to Mr.

Holmes and thus the third element had not been proven. [ 25 ] With respect to the fourth element, he found there was no reasonable reliance on a representation by Ms. Boreen: [25] Ms. Boreen did not rely on a negligent representation by Mosaic because no representation was made to her and any representations made to Mr. Holmes regarding his pension benefits were true and accurate. … [27] In her affidavit sworn November 3, 2016, Ms. Boreen states at para. 5: 5.

Lloyd told me during his lifetime and I verily believe same to be true that he tried to commence divorce proceedings against Glenda as well as have her sign off on his pension so that Glenda and I could split it on several occasions but every time he did, she threatened to move out of the province with the children, which made him afraid to pursue it. [28] This paragraph confirms that both Mr. Holmes and Ms. Boreen were aware that something more than the Declaration of Spousal Status form was required to effectively designate Ms. Boreen as a beneficiary to Mr.

Holmes[’] pension. [ 26 ] With respect to the fifth element, namely, whether there were damages caused by the misrepresentation, the Chambers judge said: [29] It was not the actions of Mosaic that allowed the pension benefit to go to Ms. Holmes, but rather the inaction of Mr. Holmes. I am satisfied, on the evidence, that Mosaic had provided Mr. Holmes with legally correct and factually accurate information.

How he chosen to utilize that information was not within the purview of Mosaic. [30] No damages were caused by a misrepresentation by Mosaic because no misrepresentation was made. [ 27 ] The Chambers judge concluded that, based on the evidence contained in the affidavits of Ms. Boreen and Ms. Moore, together with the cross-examination on their affidavits, he was able to reach a fair and just determination on the merits utilizing the

summary judgment rules. He found that

summary judgment in this case was a proportionate and more expeditious and less expensive means to achieve a just result than going to trial. [ 28 ] He concluded that, to the extent the claim was based on negligent misrepresentation, it was without merit and could not possibly succeed. [ 29 ] The Chambers judge was also satisfied that the test for striking parts of the claim on the basis it was scandalous, frivolous or vexatious had been met. [ 30 ] He granted

summary judgment in favour of Mosaic against Ms. Boreen. IV. Issues [ 31 ] The issues in this case may be stated as follows: (

a) Did the Chambers judge err by allowing the

summary judgment application to proceed before the parties had engaged in mandatory mediation? (

b) Did the Chambers judge make an overriding and palpable error of fact relating to the discussion and correspondence between Mr. Holmes and Mosaic in the course of his analysis of whether the elements of negligent misrepresentation had been proven? [ 32 ] Ms. Boreen also raised the issue of whether the Chambers judge erred by failing to find a special relationship between her and Mosaic. However, in view of the determination of the second issue, I need not address this issue. V. Analysis A. Did the Chambers judge err by allowing the

summary judgment application to proceed before the parties had engaged in mandatory mediation? [ 33 ] Ms. Boreen argues the

summary judgment application should not have proceeded because the parties had not yet attended mandatory mediation. Her submission in this regard has two branches. [ 34 ] In the first branch, Ms. Boreen makes an argument that is not in her factum. She submits that her counsel had asked for an adjournment of the application to allow for disclosure of Mr. Holmes’ Mosaic personnel file to which Ms. Moore had referred when she testified. She notes the Chambers judge never ruled on that request. On this basis, she submits that the matter should never have proceeded by way of

summary judgment and should have been sent to mandatory mediation. Although this argument refers to mandatory mediation, it is actually one that challenges the Chambers judge’s finding that he could, on the evidence before him, make a just and fair

determination on the merits utilizing the

summary judgment rules. Despite the fact that this appears to be an eleventh hour argument in this Court and, as such, one that would normally not be entertained, I will nevertheless address it. [ 35 ] Counsel for Ms. Boreen requested disclosure of the personnel file which had been referred to by Ms. Moore. After being told that the file was not in court and after some hedging by him about whether he wanted an adjournment of Ms. Moore’s cross-examination as a result, Ms. Boreen’s counsel eventually made a formal request to do so.

Counsel for Mosaic indicated he would attempt to provide the personnel file that day or later. The Chambers judge nevertheless decided to carry on with the proceedings. [ 36 ] The request to adjourn by Ms. Boreen’s counsel appears to have been only for the record. The cross-examination of Ms. Moore concluded and then Ms. Boreen was cross-examined. Both parties then proceeded to fully argue the application and the issue of whether negligent misrepresentation had been proven on the merits based on the evidence before the Chambers judge without disclosure of the file. [ 37 ] Ms.

Boreen’s counsel, in final argument before the Chambers judge, mentioned the absence of the file only in the context that, in its absence, the evidence was insufficient for the Chambers judge to make a decision. I conclude, based on the transcript of the proceedings, that Ms. Boreen abandoned her application for disclosure of the file and an adjournment and chose to – and, indeed was content instead to – fully argue her case based on the evidence such as it was without the file.

Further, the Chambers judge expressly found that he was able to reach a fair and just determination on the merits based on the affidavit evidence and cross-examinations. I see no error in that. Accordingly, there is no merit to this branch of Ms. Boreen’s argument. [ 38 ] The second branch of her argument relies on ss. 42(1.1) to 42(1.4) of the QBA , which reads as follows: 42

(1.1) Subject to subsections (1.2), (1.3), (1.4) and (7), after the close of pleadings in a contested action or matter that is not a family law proceeding, the local registrar shall arrange for a mediation session, and the parties shall attend the mediation session before taking any further step in the action or matter.

(1.2) On application by a party to an action or matter, the court may: (

a) exempt the parties from the requirement to attend a mediation session; or (

b) postpone the requirement to attend a mediation session until a later step in the action or matter on any terms that the court considers appropriate.

(1.3) At the request of a party to an action or matter, the manager may postpone the requirement to attend a mediation session, on any terms the manager considers appropriate, until: (

a) each party has served the other parties with a statement as to documents; or (

b) a later step in the action or matter.

(1.4) At the request of a party to an action or matter, the manager may exempt the parties from the requirement to attend a mediation session. … [ 39 ] Ms. Boreen’s submission is that because the parties failed to attend mandatory mediation referred to in s. 42(1.1) and no exemption from or postponement of mediation under ss. 42(1.2) and 42(1.3) was obtained, Mosaic could not take the step of proceeding to

summary judgment. [ 40 ] Mosaic admits that mandatory mediation is normally required but makes several arguments in response. It first argues that s. 42(1.1) of the QBA reads that mandatory mediation is only required when the pleadings have closed and, because pleadings had not closed (i.e., because Mr. Patenaude had not yet filed a statement of defence) the requirement to mediate had not yet been triggered. In support of this submission, it points out the Dispute Resolution Office appeared to take the view that mandatory mediation was not yet required because not all the statements of defence had been filed.

Mosaic next submits that the requirement to mediate was waived by the parties. Third, Mosaic argues that the Consent Order was an implied exemption from mediation to the extent it was required. Last, it submits that an exemption can be granted by this Court nunc pro tunc. [ 41 ] I need only address Mosaic’s second and the third argument to determine this issue. With respect to Mosaic’s second argument, while counsel for Ms. Boreen explicitly waived mandatory mediation during the hearing before the Chambers judge, that waiver was ineffective. There is no provision in the QBA for such a waiver.

Mandatory mediation is required unless exempted or postponed in accordance with the above provisions of the QBA . The waiver was contrary to the explicit provisions of the QBA . [ 42 ] With respect to Mosaic’s third argument, it is clear from the record that, at the time the Consent Order was granted, all of the parties were alive to the fact that mandatory mediation had not taken place.

This is confirmed by the email dialogue between the parties about inquires by Mosaic with the Dispute Resolution Office concerning mediation. [ 43 ] It can reasonably be inferred that the Chambers judge was alive to the issue, as well, because he explicitly set out the terms of the Consent Order. It may be presumed that he knew the law in relation to s. 42 of the QBA . Given the absence on the court file of any certificate that mediation had occurred or an order for exemption from mediation or a postponement thereof, I conclude that the Chambers judge accepted the Consent Order, with its terms that the

summary judgment application proceed, as being an exemption from mandatory mediation in accordance with s. 42(1.2) of the QBA . Given the circumstances of this case, he was correct to do so. I see no error in the Chambers judge proceeding to determine the matter on the merits as he did. B. Did the Chambers judge make an overriding and palpable error of fact

relating to the discussion and correspondence between Mr. Holmes and Mosaic in thecourse of his analysis of whether the elements of negligent misrepresentation had beenproven? [44] As a preliminary matter, Ms. Boreen has not argued that the Chambers judge’s finding that damages had not been proven to becaused by Mosaic was in error. The absence of such an argument would appear to be fatal to her appeal given that, in order to besuccessful in this Court, she was required to demonstrate that all the elements of the tort of negligent misrepresentation were proven in thecourt below.

Despite this, I will nevertheless address the argument that Ms. Boreen makes in relation to the issue of the PensionStatement, the representations of Mosaic and the issue of damages for the sake of completeness. [45] Ms. Boreen submits that in determining that the elements of negligent misrepresentation had not been proven, the Chambersjudge failed to consider that the Pension Statement provided to Mr. Holmes indicating that Ms. Boreen was the beneficiary of his pensionwas inaccurate, untrue or misleading. Ms. Boreen acknowledges that Mosaic, through Ms. Moore, accurately explained to Mr.

Holmeswho the legal beneficiary of his pension was but this did not mitigate the misleading effect of the inaccurate Pension Statement. [46] Mosaic argues the Chambers judge made no error because even if the Pension Statement was misleading, it was provided notto Ms. Boreen but rather to Mr. Holmes and therefore she could not, in all the circumstances, have reasonably relied on it. [47] The five elements of negligent misrepresentation are set out in Queen v Cognos Inc., (SCC), [1993] 1 SCR 87at 110. I need not repeat all of them here. The arguments of Ms.

Boreen on this issue are referable to three of the five: a representation thatis untrue, inaccurate, or misleading; a defendant who acted negligently in making the representation; and a plaintiff who relied on therepresentation in a reasonable manner. [48] Ms. Boreen challenges the Chambers judge’s handling of the evidence regarding whether an untrue, inaccurate or misleadingrepresentation had been made to her. In this regard, she focuses entirely on the Pension Statement and submits the Chambers judgeignored that it represented she was the designated beneficiary.

While it is true that the Chambers judge did not mention the PensionStatement in his analysis, this lacunae is not fatal. [49] As stated in Northrock Resources v ExxonMobil Canada Energy, 2017 SKCA 60 at para 10, [2017] 12 WWR 369 [NorthrockResources], “a judge is not required to revisit each and every piece of evidence adduced at trial in his or her reasons”. The Chambers judgeclearly stated that he had considered the affidavits of Ms. Moore and Ms. Boreen, as well as cross-examination thereon. Ms.

Boreen’sFebruary 16, 2016 affidavit and her cross-examination, as well as the closing submissions of her counsel, dealt with her submission thatthe designation set forth in the Pension Statement was misleading. Accordingly, there is no merit to Ms. Boreen’s argument that theChambers judge ignored or forgot this evidence. It is, however, understandable why he may not have felt the need to mention it. I willexplain. [50] It is common ground that the Pension Statement was provided to Mr. Holmes in accordance with s. 13(1)(

b) of the PBA, whichrequired the administrator of the Plan to provide him with an annual pension statement. The information required to be set out in thatstatement is detailed in s. 13(1) of The Pension Benefits Regulations, 1993, RRS c P-6.001 Reg 1 [Regulations]. The information relevantto this case is as follows: Annual statement 13(1) An administrator shall provide to each member, pursuant to clause 13(1)(

b) of the Act and within 180 days after the end of eachfiscal year ending on or after January 1, 1993, an annual statement for the fiscal year just ended containing or accompanied by thefollowing information so far as is applicable respecting the member: (

a) the member’s name; … (

c) the member’s designated beneficiary under the plan; … [51] Looked at from the viewpoint of the PBA and the Regulations, a beneficiary designation in a pension statement is a statutorilymandated representation of the member’s choice of beneficiary. In this case, that designation was Ms. Boreen and was the one set out inthe Declaration that Mr. Holmes provided to Mosaic in the summer of 2013. I say this because the Declaration was forwarded to AonHewitt, which then reflected that designation in its database. [52] The designation of Ms.

Boreen in the Pension Statement was therefore a true and accurate representation of Mr. Holmes’chosen beneficiary. It was not, per se, misleading. It was sent to Mr. Holmes in performance of the administrator’s statutory duty toprovide the information required by the PBA and the Regulations. Moreover, the designation was not a representation by the administratoror Mosaic that Ms. Boreen was in law the beneficiary and would receive the pension. Section 13(1) of the Regulations does not speak tothe issue of entitlement to the pension by a surviving spouse. That issue is governed by s. 33(1) of the PBA.

Section 33(5) also clearly setsout that a designated beneficiary may only receive the pension if a member of the plan dies without a surviving spouse. [53] Viewed in this context, it is understandable that the Chambers judge did not mention the Pension Statement. The designationtherein was merely a reiteration of Mr.

Holmes’ choice of beneficiary and not an original representation by Aon Hewitt or Mosaic of whowould be entitled to the pension when he died. [54] The Chambers judge’s conclusion that there was no untrue, inaccurate or misleading representation by Mosaic was based on allthe evidence before him, which included the information that had been provided by Ms. Moore to Mr. Holmes.

[ 55 ] Ms. Moore advised Mr. Holmes that Ms. Boreen could not receive his pension unless he obtained a waiver from Ms. Holmes or divorced her. This was clearly understood by Mr. Holmes. Ms. Boreen knew this was required as well and acknowledged that Ms. Moore’s representations in this regard were accurate. [ 56 ] Ms. Boreen also deposed that Mr. Holmes had told her that he had tried to do this in the past in order to, at least, have Ms. Holmes split the pension with her, and she believed at a minimum that he had to commence a divorce proceeding to enable her to receive the pension benefits.

In short, taken as a whole and even with the Pension Statement taken into account, Mosaic provided information to Mr. Holmes that was legally correct and factually accurate. He knew that Ms. Holmes would remain the legal beneficiary of his pension until he had taken the necessary steps to change that. [ 57 ] I see no palpable and overriding error in this. [ 58 ] The Chambers judge’s finding that representations about the beneficiary under the Plan were made to Mr. Holmes and not Ms. Boreen is also amply supported by the evidence. Mr. Holmes was the employee of Mosaic and Ms.

Moore’s discussions about the beneficiary designation were appropriately directed to him. Likewise, as mentioned above, the Pension Statement was addressed to him and not Ms. Boreen. Ms. Boreen acknowledged that she did not attend any of the meetings between Mr. Holmes and Ms. Moore where pension benefits were discussed and therefore no representations were made to her by Ms. Moore. I find no palpable and overriding error in that finding. [ 59 ] The Chambers judge also determined that Ms. Boreen had not proven the reasonable reliance element of negligent misrepresentation.

He acknowledged that the Declaration had caused some confusion for her. I take this to mean that its execution by Mr. Holmes resulted in the Pension Statement setting out that Ms. Boreen had been designated as beneficiary. I understand the Chambers judge to have found that Ms. Boreen lacked actual reliance on the Pension Statement. He noted as much at paragraphs 27–28 of the Decision , where he referred to the fact that she was aware that the designation in the Declaration (which found its way into the Pension Statement) would be ineffective in allowing her to receive the pension.

These paragraphs are reproduced in full above but repeated here for ease of reference: [27] In her affidavit sworn November 3, 2016, Ms. Boreen states at para. 5: 5. Lloyd told me during his lifetime and I verily believe same to be true that he tried to commence divorce proceedings against Glenda as well as have her sign off on his pension so that Glenda and I could split it on several occasions but every time he did, she threatened to move out of the province with the children, which made him afraid to pursue it. [28] This paragraph confirms that both Mr. Holmes and Ms.

Boreen were aware that something more than the Declaration of Spousal Status form was required to effectively designate Ms. Boreen as a beneficiary to Mr. Holmes[’] pension. [ 60 ] Ms. Boreen acknowledged as well in cross-examination that she was aware that further steps were required by Mr. Holmes to ensure the pension benefits did not flow to Ms. Holmes. [ 61 ] That Ms. Boreen could not have reasonably relied on the Pension Statement is also confirmed by the fact she indicated in cross- examination that she helped Mr. Holmes fill out and submit the Declaration.

This form very clearly set out the statutory definition of spouse applicable in this case, i.e., a person who is married to a member of the Plan. As well, it set out the following: The Saskatchewan Pension Act requires employees to name their spouse as beneficiary to their pension unless otherwise agreed upon by the spouse. Any death benefit will be payable to your spouse at the time of death. The designated beneficiary listed below will receive a death benefit only if you do not have a spouse at the time of death. … [ 62 ] It was open to the Chambers judge to make the finding that Ms.

Boreen did not reasonably rely on any representation that she was the beneficiary of the pension. I see no palpable and overriding error in him doing so. [ 63 ] The Chambers judge ultimately also found that the element of damages had not been proven. I agree with his finding. Ms. Boreen’s failure to receive the pension was due, in the circumstances, to the fact she was disentitled by law to receive it pursuant to the terms of the PBA . Any damages that she may have suffered were not caused by Mosaic but rather by the failure of Mr. Holmes to do what was required to eliminate Ms.

Holmes from entitlement to his pension and clear the way for Ms. Boreen to become the legal beneficiary. VI. Conclusion [ 64 ] Ms. Boreen’s appeal is dismissed with costs to Mosaic in the usual manner. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A. Barrington-Foote J.A.

I. Introduction [ 65 ] I concur with the reasons of and the result reached by my colleagues in relation to the first question at issue in this appeal; that is, the Chambers judge did not err in allowing the

summary judgment application to proceed. [ 66 ] I also agree that the appeal should not be allowed as a result of error by the Chambers judge in his analysis of the discussion and correspondence between Mr. Holmes and Mosaic. However, with great respect, I have reached that conclusion for different reasons than my colleagues. [ 67 ] The error alleged by Ms. Boreen in relation to the treatment of the evidence by the Chambers judge is very clearly identified in her factum: 43. The Chambers Justice made a palpable and overrising [ sic ] error in failing to consider the Pension Statement provided by Mosaic to [Mr.

Holmes] and [Ms. Boreen] indicating that [Ms. Boreen] was the beneficiary of the pension and the viva voce of Ms. Bernie Moore with respect to the same. 44. In determining that no misrepresentation had been made by Mosaic, the Chambers Judge failed to consider the effect of the Pension Statement, which had been provided negligently to [Mr. Holmes] and [Ms. Boreen] and was untrue, inaccurate, or misleading in that [Ms. Boreen] could not legally claim [Mr. Holmes’] benefit as long as he was married to [Ms.

Holmes]. [ 68 ] This makes clear that the issue in relation to this ground of appeal is the potentially misleading effect of the Pension Statement, not the advice given by Ms. Moore. Counsel for Ms. Boreen made the same argument at the hearing of this appeal. That is, under this ground of appeal, he referred only to the misleading effect of the Pension Statement. Indeed, Ms. Boreen acknowledged that Mosaic, through Ms. Moore, accurately explained to Mr. Holmes who the legal beneficiary of his pension was. [ 69 ] As my colleagues have pointed out, it is common ground that the Pension Statement was provided to Mr.

Holmes in accordance with s. 13(1)(

b) of the PBA and was an accurate representation of his chosen beneficiary. It was not a representation by the administrator that Ms. Boreen would receive the pension. [ 70 ] However, the fact that the Pension Statement was accurate does not mean it could not have misled Mr. Holmes. There was evidence from Ms. Boreen that Mr. Holmes not only received but reviewed the Pension Statement. There was no evidence that Mr. Holmes understood the legal meaning of the Pension Statement as it is explained by my colleagues. He could well have concluded that the designation had changed despite what he had been told by Ms.

Moore. The fact that he executed a will on May 5, 2014, which purported to transfer any pension payout from his Mosaic pension equally to Ms. Boreen, Ms. Holmes, and his two children, is evidence that he was, at least at that point in time, confused as to what needed to be done to change beneficiaries. Notwithstanding all of this, the Chambers judge did not refer to the Pension Statement at any point in his judgment, including in his recitation of the facts. [ 71 ] Further, the Chambers judge’s analysis of the issue of negligent misrepresentation is clear.

It refers repeatedly to and is concerned solely with what Ms. Moore told Mr. Holmes. It does not refer to the Pension Statement. I note, for example, the following excerpts from the Chambers judge’s analysis of the elements of negligent misrepresentation: a. A duty of care based on a “special relationship” [19] Mosaic acknowledges that a “special relationship” existed between Mosaic and Mr. Holmes due to Mr. Holmes being an employee of Mosaic. However, there is no corresponding relationship between Mosaic and Ms. Boreen. The two are not connected in any capacity except by way of Mr. Holmes.

Mosaic did not make any representations to Ms. Boreen relation to Mr. Holmes’ pension benefits. Indeed, during her cross-examination, Ms. Boreen acknowledged she had never attended any of the meetings Mr. Holmes had with Ms. Moore, to discuss pension benefits and she was aware that further steps were required by Mr. Holmes to ensure that [the] pension benefits did not flow to Glenda Holmes. b. A representation that is untrue, inaccurate, or misleading [20] A misrepresentation has been fined by Black’s Law Dictionary (Bryan A. Garner, Black’s Law Dictionary , 10th ed (St. Paul, Minnesota: Thompson West, 2014)).

Misrepresentation n. (17c) 1. The act or an instance of making a false or misleading assertion about something, usu. with the intent to deceive. The word denotes not just written or spoken words but also any other conduct that amount to a false assertion. 2. The assertion so made; an incorrect, unfair, or false statement; an assertion that does not accord with the facts…. [21] I am satisfied, based on the affidavit and subsequent testimony of Ms. Moore, that information respecting Mr. Holmes’ pension beneficiary was clearly explained to him. He was aware that, unless he obtained a divorce from [Ms.

Holmes], or she signed a waiver document relinquishing her claim to the pension, the pension would ultimately be received by her upon his death. I have reached this conclusion appreciating that Mr. Holmes had erroneously signed the Declaration of Spousal Status form with the apparent hope of re-assigning his pension beneficiary. His misunderstanding in this regard was pointed out to him by Ms. Moore. He was aware that more would need to be done in order to re-assign the pension. He was encouraged to seek legal advice on the issue of divorce but expressed little interest.

He similarly expressed little interest in attempting to have [Ms. Holmes] sign a waiver of her claim. [22] Based on the evidence presented, I am satisfied that the information Mosaic communicated to Mr. Holmes was true and accurate. The reason why Mr. Holmes elected not to take the further steps required to re-assign his pension beneficiary, if that was his intention, is unknown.

It would be mere speculation to attribute motivation to his actions or lack of actions. [ 72 ] It might be argued that the first sentence in the following paragraph may be taken as referring to something more than the meetings between Mr. Holmes and Ms. Moore:

c. A defendant who acted negligently in making the representation [23] The information communicated by Mosaic to Mr. Holmes respecting the spousal pension benefit was true and accurate. Theinformation was a true statement of the law in Saskatchewan as applicable to Mr. Holmes’ situation, as reported to Ms. Moore by the legaldepartment of Aon Hewitt and subsequently confirmed by the decision of Justice Schwann. [73] However, the second sentence in that paragraph makes it clear that the first sentence refers to the advice given by Aon Hewittto Ms. Moore, and in turn, by Ms. Moore to Mr. Holmes.

Read in the context of that paragraph and the judgment as a whole, the firstsentence cannot bear any other meaning. [74] Accordingly, and with respect, I must conclude that the Chambers judge not only failed to refer to the Pension Statement butfailed to consider it. Northrock Resources reiterates the well-established principle that a judge need not revisit every piece of evidence thathas been adduced. That principle does not apply if the decision gives rise to a reasoned belief that the trial or Chambers judge hasforgotten, ignored or misconceived the evidence in a way that affected their conclusion.

Here, the failure to advert to this evidence as afact or in the course of the analysis gives rise to just such a reasoned belief. [75] Further, the reasons of the Chambers judge demonstrate that the error goes beyond a failure to consider relevant evidence. Theydemonstrate that he did not grapple with the issue; that is, did the Pension Statement mislead Mr. Holmes despite the accurate advicegiven by Ms. Moore and, if so, would he have taken additional steps to designate Ms.

Boreen as the beneficiary of his pension? [76] The failure to consider this evidence was, and resulted in, an error of law that went to the heart of this ground of appeal.

Sucherrors in the treatment of the evidence have also, where appropriate, been characterized as palpable and overriding errors of fact: Matchimv BGI Atlantic Inc., 2010 NLCA 9, at paras 91 and 124, 908 APR 46; Housen v Nikolaisen, 2002 SCC 33 at para 36, [2002] 2 SCR 235.Regardless of how the error is characterized, it requires this Court to intervene. [77] As the Chambers judge did not consider the Pension Statement, he did not make necessary findings of fact. The question,accordingly, is whether the matter should be remitted to the Chambers judge or decided by this Court.

Appellate courts are generallyreluctant to make findings of fact. However, they have the authority to do so. This issue was addressed by Rothstein J. in Maden Estate vSaylor, 2007 SCC 18, [2007] 1 SCR 838: [24] It is well established that where the circumstances warrant, appellate courts have the jurisdiction to make a fresh assessment of theevidence on the record: Hollis v. Dow Corning Corp., (SCC), [1995] 4 S.C.R. 634, at para. 33; Prudential Trust Co. v.Forseth, (SCC), [1960] S.C.R. 210, at pp. 216-17.

Having regard to the circumstances of the present appeal, I think it isboth feasible on a practical level and within the interests of justice for this Court to consider the evidence not considered by the trial judgeand make a final determination rather than sending the case back to trial. See also: John Doe (G.E.B. #25) v The Roman Catholic Episcopal Corporation of St. John’s, 2020 NLCA 27 at paras 120–121; andJohnson v BFI Canada Inc., 2010 MBCA 101 at para 3, 326 DLR (4th) 497. [78] The events which resulted in this litigation occurred in 2013 and 2014. Mr. Holmes passed away in August of 2014.

Ms.Holmes’ action, which was commenced in July 2015, was finally disposed of by the Court of Appeal in October of 2016. Ms. Boreencommenced this action in August 2015. Her application was heard in January of 2017 and the judgment issued in January of 2019. TheChambers judge made key findings of fact which remain relevant to the analysis. Those findings did not turn on credibility. The facts ofthis case are not complex, and the evidence that was not considered is simple and is limited to the Pension Statement itself and a briefstatement in Ms. Boreen’s affidavit.

In these circumstances, it is both feasible on a practical level and within the interests of justice for thisCourt to finally determine this case rather than sending it back to trial. [79] As my colleagues note, the Chambers judge reviewed the five elements of the tort of negligent misrepresentation. In order tosucceed, Ms. Boreen had to prove all five of those elements, one of which is that damages resulted from the misrepresentation. For thatreason, to dispose this appeal, it is sufficient that I have concluded that Ms.

Boreen has not proven that she suffered any damage as a resultof the fact that the Pension Statement identified her as the beneficiary, regardless of whether either she or Mr. Holmes were misled. Letme explain. [80] First, the Chambers judge found that Mr. Holmes knew that further steps had to be taken to substitute Ms. Boreen for Ms.Holmes as the pension beneficiary after meeting with Ms. Moore in late July or early August of 2013. That is, he knew that thedesignation of Ms. Boreen in the Declaration would be ineffective in allowing her to receive the pension.

These paragraphs are reproducedin full above but repeated here for ease of reference: [27] In her affidavit sworn November 3, 2016, Ms. Boreen states at para. 5: 5. Lloyd told me during his lifetime and I verily believe same to be true that he tried to commence divorce proceedings against Glenda aswell as have her sign off on his pension so that Glenda and I could split it on several occasions but every time he did, she threatened tomove out of the province with the children, which made him afraid to pursue it. [28] This paragraph confirms that both Mr. Holmes and Ms.

Boreen were aware that something more than the Declaration of SpousalStatus form was required to effectively designate Ms. Boreen as a beneficiary to Mr. Holmes[’] pension. [81] There was other evidence to support this conclusion. In addition to that of Ms. Moore, there was evidence that Ms. Boreenhelped Mr. Holmes fill out and submit the Declaration. That form set out the statutory definition of spouse applicable in this case, i.e., aperson who is married to a member of the Plan.

As well, it set out the following: The Saskatchewan Pension Act requires employees to name their spouse as beneficiary to their pension unless otherwise agreed upon bythe spouse. Any death benefit will be payable to your spouse at the time of death. The designated beneficiary listed below will receive adeath benefit only if you do not have a spouse at the time of death. …

[ 82 ] Second, as my colleagues say, Ms. Boreen did not receive the pension because she was disentitled by law to receive it pursuant to the terms of the PBA . The Chambers judge found that any damages that she may have suffered were caused by the failure of Mr. Holmes to do what he had been told was required to switch beneficiaries. The issue, of course, is whether – assuming for the sake of argument that he was misled by the Pension Statement – Mr. Holmes would have taken the necessary steps to change the beneficiary had he not been so misled. [ 83 ] Ms. Boreen deposed that if Mosaic had advised her or Mr.

Holmes in writing that the beneficiary designation was invalid, she was confident he would have taken those necessary steps. There is, however, compelling evidence to the contrary. Mr. Holmes knew not later than early August 2013 that the Declaration would not effect a change in the beneficiary of his pension. He knew the two options that were available to him to achieve that result. Despite that, there is no evidence he took any steps to obtain consent or initiate divorce proceedings, either before or after he received the Pension Statement. He had ample time to do so.

It is also clear that he did not simply forget about the issue of his beneficiary. Rather, he sought to dispose of the pension in his May 2014 will in a manner inconsistent with Ms. Boreen’s evidence as to his settled intentions. [ 84 ] In the result, I conclude that Mr. Holmes did not take the steps necessary to designate Ms. Boreen as beneficiary of his pension because he chose not to do so, not as a result of the Pension Statement, but for other reasons that need not be determined to decide this case. Put differently, the fact that he may have been misled by the Pension Statement would have made no difference.

As such, I conclude, as did the Chambers judge, that Ms. Boreen did not prove the damages element of negligent misrepresentation. II. Conclusion [ 85 ] For these reasons, I would dismiss Ms. Boreen’s appeal with costs to Mosaic in the usual manner. “Barrington-Foote J.A.” Barrington-Foote J.A.