Wenkoff v Wenkoff Estate, 2021 SKCA 5

Court of Appeal for Saskatchewan Docket: CACV3559 Citation: Wenkoff v Wenkoff Estate , 2021 SKCA 5 Date: 2021-01-15 Between: Robert John Wenkoff Appellant (Plaintiff) And Ian Wagner, Administrator Pendente Lite of the Estate of the late Robert Rusin Wenkoff Respondent (Defendant) Before: Richards C.J.S., Schwann and Tholl JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Madam Justice Schwann The Honourable Mr.

Justice Tholl On appeal from: 2019 SKQB 325 , Saskatoon Appeal heard: June 12, 2020 Counsel: Robert Kennedy, Q.C., and Rochelle Blocka for the Appellant Davin Burlingham for the Respondent Richards C.J.S. I. Introduction [ 1 ] Robert Rusin Wenkoff [Robert] was a farmer. He died intestate. Robert John Wenkoff [Bob], his son, took the position that, before his death, Robert had agreed to transfer the farm to him. The agreement had been drafted by a lawyer but never signed. Bob ultimately sued Robert’s estate [Estate] asking for a declaration that the alleged agreement was effective and enforceable.

He also sought an order for specific performance obliging the Estate to perform the terms of the agreement. [ 2 ] The Estate filed a statement of defence and took the position that Bob’s claim should be dismissed for a variety of reasons, including that (

a) Robert lacked the capacity to enter the agreement, (

b) Bob had exerted undue influence over Robert, (

c) the agreement was unconscionable, and (

d) the agreement was unenforceable because it did not comply with the Statute of Frauds, 1677 , 29 Cha II, c 3. [ 3 ] Bob applied for

summary judgment. A Queen’s Bench judge concluded that the agreement was conditional on Robert receiving independent legal advice and that such advice had not been provided. The Chambers judge also decided the Statute of Frauds aspect of the case against Bob. Further, he held that there was a presumption of undue influence on the facts before him but that the question of whether the presumption could be rebutted would have required determination by way of a trial. In the end, Bob’s action was dismissed. [ 4 ] Bob now appeals to this Court.

He argues that the Chambers judge erred in finding that the agreement was contingent on Robert receiving independent legal advice, erred on the Statute of Frauds point by failing to find there had been part performance of the agreement so as to avoid the impact of the Statute and erred by failing to find there had been no undue influence. [ 5 ] I conclude, as explained below, that the Chambers judge made no reversible error in holding that the agreement was contingent on Robert receiving independent legal advice. This means that Bob’s appeal cannot succeed and that it must be dismissed.

As a result, there is no need to consider the arguments about the Statute of Frauds and undue influence. II. Factual Background [ 6 ] The evidence was placed before the Chambers judge by way of affidavit. Bob filed two of his own affidavits and the affidavits of two of his sisters, Marilyn Sabatino [Marilyn] and Karen Richert [Karen]. Bob also filed the affidavit of Kenneth Neil, a Unity-based lawyer who had dealt with him and Robert. The Estate filed affidavits sworn by Cynthia Woodson [Cynthia], Annette Van Koughnett [Annette], and Debra Wenkoff [Debra]. They are Bob’s sisters and Robert’s daughters.

Bob and the Estate, by agreement, also filed Robert’s medical records. [ 7 ] Key parts of the basic factual underpinning of the litigation were not in dispute: (

a) The Wenkoff family homesteaded land near Major, Saskatchewan, in 1911 and has farmed that land consistently ever since. (

b) Robert was born in 1930 and worked on the farm for most of his life. He died on May 19, 2018, at age 87. (

c) The farm consisted of some land owned by Robert and some leased by him from the Government of Saskatchewan. It was a mixed-farming operation featuring grain and cattle. Robert also had surface lease agreements with some oil companies. (

d) Robert had five daughters, all of whom survived him, with his first wife: Karen, Debra, Annette, Marilyn and Cynthia. Bob was born to Robert’s second wife.

[ 8 ] Beyond these basics, the evidence diverged. The story is perhaps best told by briefly summarizing the main features of each of the affidavits that were filed: Bob’s first affidavit [ 9 ] Bob averred as follows in his affidavit of June 6, 2019: (

a) Beginning when he was a young teenager, Robert consistently told him that he, Robert, wanted him to farm because it was Robert’s intention that the farm should continue to be owned and operated by a Wenkoff. This was told to him often, right up to the time of Robert’s death. He assisted Robert with the operation of the family farm while he was growing up and well into his adult years. (

b) Between 2003 and 2012, he resided primarily in Alberta. He and his family permanently returned to Luseland, Saskatchewan, in the spring of 2012 and he began working for a local company. The move allowed him to assist Robert on the farm. (

c) In or about late 2014 or early 2015, he and Robert discussed Robert’s intentions with respect to the farm. Robert said that he did not want to sell the farm to anyone but him and that he wanted him to continue to operate the farm. (

d) In or about March of 2015, he agreed to start farming on a full-time basis. He incorporated a company called JLS Land and Cattle Company Ltd. on June 15, 2015. (

e) In June of 2015, he and Robert reached an agreement in principle that he would purchase the farm. Although they had yet to determine a purchase price, they agreed on the following terms: (

i) he would purchase all of the land owned by Robert; (ii) he would purchase unspecified miscellaneous farm property owned by Robert; (iii) Robert would assign the Crown leases to him; (iv) Robert would assign the surface rights lease agreements to him; and (

v) Robert would retain ownership of the cattle herd. (

f) In taking over the farm, he understood that he would assume various responsibilities and enjoy various entitlements while he and Robert finalized their agreement: (

i) conducting all farming operations, including those related to the cattle; (ii) paying all farming expenses; (iii) retaining all profits associated with the grain farming operation; and (iv) retaining the proceeds of the sale of any calves as compensation for care and maintenance of Robert’s cattle herd. (

g) In 2015, 2016 and 2017, he worked on the farm and purchased various pieces of farm equipment. (

h) He and Robert engaged Mr. Neil to assist in documenting the agreement they were discussing. They first met with Mr. Neil in April of 2017 to outline and describe the agreement. In that same month, Robert assigned the Crown leases to him for $1.00. (

i) In or about October of 2017, he and Robert decided to finalize the terms of the agreement they had reached in 2015. Robert was adamant that the purchase price was to be no more than $300,000. (

j) In or about October of 2017, he and Robert again met with Mr. Neil and asked him to reduce their oral agreement to writing. The agreement included the following terms: (

i) the agreement would close on January 1, 2018; (ii) the Crown leases would be assigned to him for $1.00; (iii) Robert would gift him two quarter sections and any buildings and fixtures situated thereon in order to avoid a right of first refusal held by Robert’s relatives; and (iv) he would purchase portions of two quarter sections and the related buildings for $300,000. (

k) In accordance with the agreement, Robert began signing over the surface rights lease cheques he received. (

l) In or about March of 2018, he enquired with Mr. Neil about the completion of the documents relating to the transfer. His understanding was that he was to sign the agreement with Mr. Neil present and Robert was to sign with another lawyer. Robert passed away before he was able to meet with the other lawyer. (

m) Robert was admitted to Kindersley hospital on January 1, 2018. After spending three weeks there, Robert was moved to Kindersley Manor, a care home. (

n) Robert passed away on May 19, 2018.

Marilyn’s Affidavit [ 10 ] Marilyn stated as follows in her affidavit: (

a) She was in frequent telephone conversation, usually two or three times a week, with Robert after he was admitted to hospital in January of 2018. (

b) Based on those telephone conversations, she had no concerns about, or reason to question, her father’s mental capacity or think that Bob was trying to limit her communications with Robert. Karen’s Affidavit [ 11 ] Karen averred as follows in her affidavit: (

a) She was grateful that Bob had been around to take care of Robert and he did not try to limit her communications with Robert. (

b) She did not remember any of her sisters contributing to the farming operation in any meaningful way. Only Bob stayed after high school to assist with the farm. (

c) Robert told her that Bob had taken over day-to-day operations of the farm and was responsible for ongoing expenses and input costs. (

d) She and Robert had frequent long conversations. He was very sharp and she had no concerns with respect to his mental capacity. She felt no unease that Bob was trying to unduly influence Robert or limit his calls to her. Bob kept her apprised of Robert’s situation. (

e) It was her understanding that Robert and Bob had reached an agreement for Bob to purchase the farm. None of the other siblings had any interest in taking over the farm or the ability to do so. Mr. Neil’s Affidavit [ 12 ] Mr. Neil swore an affidavit in which he described his dealings with Robert and Bob in relation to the farm: (

a) Robert called his office on December 2, 2016, and made an appointment regarding a land transfer to Bob. That appointment was eventually rescheduled and then cancelled. (

b) On April 3, 2017, Robert and Bob attended his office to discuss the transition of the family farm from Robert to Bob. It was explained to him that Bob had assisted on the family farm in his youth and early adult years and had returned several years later to operate the farm. (

c) He had dealt previously with both Robert and Bob and was familiar with them. (

d) Robert was particularly concerned that the purchase price should be manageable for Bob and Bob was equally concerned about paying a fair price, although one that could be sustained by the farming operation. It was accepted by both Robert and Bob that the price would be less than fair market value. (

e) At the meeting, he had absolutely no concern about Robert’s capacity or about Bob exerting influence over Robert. He said that Robert was “every bit the man that I knew”. (

f) The fate of the cattle operation on the farm was a matter of some contention at the meeting. There was a spirited debate about this between Robert and Bob. (

g) On October 12, 2017, Robert called his office and made an appointment for October 19, 2017. (

h) He met with Robert and Bob on October 19, 2017. Robert raised a concern about a right of first refusal to purchase the home quarter held by his, i.e., Robert’s, siblings. It was agreed that, in light of this, a gift of the home quarter to Bob was the best course of action. (

i) Other terms of the agreement were that Robert would sell a half

section of land for $300,000 with annual payments of $30,000 per year without interest. Bob offered to pay more but Robert was emphatic that amount was acceptable. It was also agreed that Robert would gift Bob a quarter

section of land and some low value machinery and bins. (

j) There was talk about the possible intervention of Robert’s daughters following his death. It was his opinion that, if this was a likelihood, Robert should get independent legal advice on signing the agreement. He advised that he could arrange another lawyer for Robert. (

k) Bob provided the final information needed to complete the drafting of the agreement on May 7, 2018, at which time he also advised that there was some urgency in getting the transaction completed. Later that day, Bob advised that Robert was being moved to the hospital in Unity and that he, Bob, was arranging for independent legal advice to be provided by Michel Riou, a Unity lawyer. (

l) On May 11, 2018, a cover letter and all of the documents he had drafted were delivered to Mr. Riou’s office.

Debra’s Affidavit [ 13 ] Debra averred in her affidavit as follows: (

a) She helped Robert farm for about the last three decades of his life. They had a very close relationship. (

b) Her sister, Annette, and Annette’s husband were often at the farm helping with cattle, seeding and harvesting. She and Cynthia went to the farm several times each year to help. (

c) Robert stopped phoning her in 2018. She found out that he was in the Kindersley hospital. She spoke to him and he told her that he was lonely. She and Annette went right away to visit him. While they were en route, Bob telephoned to say that he had taken Robert out of the hospital. It took her and Annette two days to find Robert. (

d) In the last half of March of 2018, Robert begged her to stay on the telephone with him for hours. He said that he was very lonely. At the end of March, he begged her to take him to Saskatoon to get new glasses. He seemed very confused, staring at her and asking who she was and accusing her of wanting to kill him. They went to a motel in Saskatoon but Robert was screaming so much that she took him to the University Hospital. He accused two nurses of beating him and accused her of abusing him. (

e) Robert was in the University Hospital for about three weeks. He returned to Kindersley for a short time and then Bob took him to Unity on May 7, 2018. Bob did not notify her when he moved Robert from the Kindersley hospital. She had no knowledge that Bob had taken Robert to see Mr. Neil on May 9, 2018. (

f) A few days after going to Unity, Robert started calling her and saying that he needed Cindy to come and that he wanted Cindy to be with him for a meeting. Cynthia’s Affidavit [ 14 ] Cynthia said this in her affidavit: (

a) There were several years when Robert needed financial assistance and would look to her for help. She made tractor payments and purchased a new swather. Robert was never able to repay her. In 2006, she purchased a quarter

section of land from Robert at fair market value to help him with his financial problems. He kept the crop from that land and never paid her any rent. (

b) She never saw Bob at the farm until approximately three years before Robert’s death. (

c) On June 11, 2017, before he began displaying signs of confusion, Robert said to her that “if Bobby wants the farm, he will have to buy it. You can figure out the price as you are a banker”. In or about June of 2017, she recorded a telephone conversation with Robert wherein, among other things, he said “I want to sell [the farm] and divide up the money with everybody”. (

d) In January of 2018, Bob took Robert to the Kindersley hospital without informing her. When she finally located where Robert was staying, she visited him immediately and found him to be extremely confused and saying that he did not know where he was. He wandered into other rooms because he thought he was still on the farm. When she phoned Bob during this time to ask for help, Bob told her to stay away from Robert and the farm. (

e) When she and Debra were with Robert at the University Hospital in March of 2018, he said that the farm was to go to “all of [his] goddamn kids”. (

f) Bob took Robert to Unity on May 7, 2018. When she eventually located where Robert was staying, she went to see him and spent the last week of Robert’s life with him. He went in and out of a state of confusion and told her that she would have a “hell of a mess” to deal with after he died. (

g) On May 7, 2018, Bob attended at the front desk of Mr. Neil’s office to advise that he was arranging for independent legal advice with Mr. Riou, a Unity lawyer. A few days later, Robert started calling her saying that he needed her to come to Unity for a meeting. She did not know what meeting he was talking about. Robert seemed confused and she could not get him to be more specific. Bob’s Reply Affidavit [ 15 ] In a reply affidavit, Bob swore as follows: (

a) Robert lived on his own in the house on the farm until the end of December of 2017. (

b) In December of 2017, Robert had a number of medical conditions but none of them affected his competence or capacity. Periodically, his congestive heart failure would cause his legs to swell and he would need to be hospitalized to bring that condition under control. (

c) Robert’s legs swelled in late 2017 and on January 1, 2018, he took Robert to the Kindersley hospital. There was nothing wrong with Robert’s mental competence or capacity. When it came time to be discharged, Robert did not want to go back to his house or to stay with Bob and his family in Luseland. He agreed to move into the care home and resided there from the latter part of January 2018 to May 7, 2018. He visited Robert almost every day while he was in the care home. (

d) Debra took Robert to Saskatoon on March 22, 2018, to get new glasses. He was admitted to the University Hospital. Robert was discharged from the hospital on April 12, 2018. He picked him up in Saskatoon and drove him back to the Kindersley care home.

(

e) Later in April of 2018, he took Robert to Saskatoon for day surgery. Robert’s physical condition was not good but his mental competence and capacity were fine. (

f) On May 7, 2018, Robert telephoned him and said words to the effect that “you have to get me out of here”, referring to the care home. He made an appointment with Robert’s family doctor in Unity. That doctor admitted Robert to hospital in Unity and Robert was there until his death on May 19, 2018. While Robert’s physical health was not good, his mental health, competence and capacity were fine. III. The decision under appeal [ 16 ] The decision of the Chambers judge carries the citation 2019 SKQB 325 . He began, under the heading “Evidence”, by reviewing some aspects of the record.

After noting the evidence relating to Robert’s mental capacity, he accepted Mr. Neil’s assessment that Robert had been mentally competent when he, Bob and Robert had met in October of 2017. [ 17 ] The Chambers judge dealt next, still under the “Evidence” heading, with what he described as “other concerns with Bob’s affidavit evidence” (at para 27). In this regard, he said that he did not accept that Bob had agreed to the transaction only when Robert allowed the price to be raised to $300,000.

The Chambers judge also questioned Bob’s account of how Robert came to be moved from Kindersley to Unity and concluded that it was more likely that Bob wanted Robert in Unity because that is where the law offices of both Mr. Riou and Mr. Neil were located. Despite these concerns, the Chambers judge said that he accepted Bob’s evidence where it was supported by Mr. Neil’s evidence. [ 18 ] Next, the Chambers judge turned to the issue of undue influence. Here, he noted Mr. Neil’s averment that he had not been concerned about Bob exerting influence over Robert. However, the Chambers judge declined to accept Mr.

Neil’s view. He noted that (

a) Robert had been in ill health, (

b) Robert was relatively isolated, (

c) Robert was reliant on Bob, (

d) Robert was accompanied by Bob when he went to meet with Mr. Neil, (

e) Robert had agreed to transfer his property at far-below market value and to the detriment of his daughters with whom he was on good terms, and (

f) Robert had not obtained independent legal advice. The Chambers judge also observed that Robert signing over his surface lease cheques might also be evidence of undue influence because, by doing this, Robert would have reduced his situation to one of relative impecuniosity. Additionally, and finally, the Chambers judge noted an entry from Robert’s April 4, 2018, medical records which said, “Family trying to get Pt to sign documents re: finances.

Pt upset about same”. [ 19 ] In the end, the Chambers judge found there was sufficient evidence to support a presumption of undue influence on the part of Bob over Robert. However, he said he was not in a position to determine whether the presumption could be rebutted without “hearing evidence”, i.e., without a trial. [ 20 ] The Chambers judge also stated, without explanation, that he was not in a position to decide the Estate’s counterclaim on a

summary judgment basis. This was a claim that Bob had converted stored grain and certain items of farm equipment. [ 21 ] Finally, the Chambers judge dealt with a Statute of Frauds issue. He observed that the Statute requires contracts for the transfer of real property to be in writing but that the equitable doctrine of part performance can provide a way around this requirement. Then, reviewing the relevant evidence, the Chambers judge concluded that, in October of 2017, Bob and Robert had agreed on the essential terms of “parties, property and price” with respect to the transfer of the farm.

However, he also went on to conclude that the agreement was not final in nature but, rather, was contingent on Robert obtaining independent legal advice – advice that he never received. [ 22 ] Next, putting the independent legal advice issue to the side, the Chambers judge went on to consider the question of part performance. In this regard, he found that Bob and Robert’s 2015 “agreement in principle” with respect to the transfer of the farm was not complete because it did not include a price.

The operative date with respect to part performance, said the Chambers judge, was therefore October of 2017 and, as a result, the only actions relevant to the part performance issue were those that occurred after that date. He found that the acts relied on by Bob (Robert signing over lease cheques; Bob’s continued work in breaking up land; Bob’s purchase of machinery; Bob’s application in 2018 to purchase the Crown land) were not “unequivocally referable to the agreement and/or are equally consistent with the previous arrangement under which Bob took primary responsibility for the farm operation” (at para 138).

As well, the Chambers judge was not satisfied that there had been any detrimental reliance on the agreement by Bob. [ 23 ] In the last part of his decision, the Chambers judge considered the aspect of the agreement between Robert and Bob that dealt with the gift of two quarter sections. He offered the view that this was not a “true gift” but rather a device to avoid triggering rights of first refusal.

He also noted that Bob’s counsel had acknowledged that, in relation to part performance and the Statute of Frauds , the case presented an all or nothing situation, i.e., that there was no room to split off the gift aspect of the alleged agreement from the sale aspect. [ 24 ] By way of an ultimate conclusion, the Chambers judge dismissed Bob’s claim. IV. Analysis [ 25 ] Bob submits that the Chambers judge erred in three main ways: (

a) by deciding that the agreement between him and Robert was contingent on Robert receiving independent legal advice; (

b) by failing to find that the contract had been “partly performed” so as to avoid the impact of the Statute of Frauds ; and (

c) by failing to find that he did not exercise undue influence over Robert. [ 26 ] It is necessary to consider only the first of these arguments. In advancing it, Bob submits both that the Chambers judge’s conclusion in relation to the independent legal advice question cannot be sustained in light of the evidentiary record that was before him and that the Chambers judge’s treatment of this issue was founded on a misunderstanding of basic legal principles. I note, parenthetically, that Bob does not suggest the Chambers judge erred in deciding that this issue could be dealt with on a

summary basis. [ 27 ] It is useful to begin by confirming the applicable standards of review. As per Sattva Capital Corp. v Creston Moly Corp. , 2014

SCC 53 , [2014] 2 SCR 633, contractual

interpretation usually involves issues of mixed fact and law and, as such, attracts appellate review on the palpable and overriding error standard, unless there is an extricable question of law. Here, however, it seems best to characterize the first of Bob’s arguments, i.e., whether Robert and Bob agreed that their arrangement with respect to the farm was contingent on Robert receiving independent legal advice, as involving a question of fact, not of contractual

interpretation. As such, the standard of review is palpable and overriding error. See: Housen v Nikolaisen , 2002 SCC 33 , [2002] 2 SCR 235 [ Housen ]. However, even if this issue is seen as one of contractual

interpretation, the same result would follow. That is because there is no extricable question of law and therefore the palpable and overriding error standard would have to be applied.

As for the second issue raised by Bob – the question of whether the Chambers judge grounded his reasoning on faulty legal principles – this involves a point of law and hence attracts review on the correctness standard. [ 28 ] With that by way of introduction, let me turn to the issue of whether the Chambers judge committed a palpable and overriding error by finding that the agreement between Robert and Bob was contingent on Robert obtaining independent legal advice. [ 29 ] There is no doubt that an error by the Chambers judge with respect to the agreement being contingent on such advice would be “overriding”.

It would clearly go to the correctness of the Chambers judge’s decision and to the bottom line of his conclusions. The real question, therefore, is whether the error alleged by Bob is “palpable”. The nature of such an error was described as follows in Housen : 5 What is palpable error? The New Oxford Dictionary of English (1998) defines “palpable” as “clear to the mind or plain to see” (p. 1337). The Cambridge International Dictionary of English (1996) describes it as “so obvious that it can easily be seen or known” (p. 1020).

The Random House Dictionary of the English Language (2nd ed. 1987) defines it as “readily or plainly seen” (p. 1399). That said, the inquiry into whether there is a palpable error is not a “disguised rehearing” of the decision under appeal. See: Salomon v Matte-Thompson , 2019 SCC 14 at para 113 , [2019] 1 SCR 729. [ 30 ] The Chambers judge did not expressly explore the relevant evidence in the course of dealing with the independent legal advice issue. Rather, he wrote as follows: [118] So what of the failure to obtain independent legal advice?

That was clearly contemplated by all parties and intended to take place before Robert signed any written agreement. However, the evidence bearing on this point is not difficult to review. [ 31 ] Bob, in his first affidavit, referred to the notion of Robert receiving independent legal advice by stating as follows: 79. In or about March of 2018 I inquired with Mr. Neil with respect to completion of the documents he was preparing. It is my understanding the documents were completed by early May 2018. It is my further understanding that for legal reasons I was to sign the Agreement with Mr.

Neil and Robert was to sign with another lawyer. Unfortunately, Robert passed away on May 19, 2018, before he was able to meet with the lawyer to sign the documents. (Emphasis added) [ 32 ] Mr. Neil, the lawyer who had met with Robert and Bob, described the idea of Robert getting independent legal advice in this way: 12. It came up that Robert did not have a Last Will and Testament, and I expressed some concern over that fact. Bob said that he was concerned that his sisters would see that he got none of the farm if matters were left.

We talked about the possible intervention of Robert’s daughters following his passing. It was my opinion and I expressed it, that if that was a likelihood, that Robert should get independent legal advice on signing any agreements. 13. My opinion as to the necessity of independent legal advice, was not due to any concern I had with Robert’s capacity or with any undue influence by Bob, but was solely as a matter of defending allegations of such by Robert’s daughters. 14.

Robert and/or Bob, I cannot recall exactly, expressed some concern about obtaining independent legal advice, given that they did not know any other lawyers and I advised that I could arrange another lawyer for Robert. (Emphasis added) [ 33 ] Mr. Neil also explained that he had prepared the various documents involved in the agreement between Robert and Bob. These included (

a) a declaration of a gift with respect to two quarter sections and all machinery, equipment, tools and farm vehicles, (

b) an agreement for sale with respect to a half section, (

c) an assignment of surface leases, and (

d) land transfers. Mr. Neil said that he had forwarded those documents to Mr. Riou with a cover letter dated May 11, 2018, that included an explanation for why Robert was to see Mr. Riou. The relevant part of that letter said this: While I did not have any concerns about Robert’s mental capacity or undue influence at either of the two meetings we had in coming to terms on these materials, Robert does have other children who are not involved in the farm. I felt it wise to have Robert seek independent counsel before executing these documents.

Furthermore, since my meetings with him, Bob advises that Robert’s health has failed somewhat, although he advises that his state of mind is unchanged. Ultimately, I leave those determinations to yourself. (Emphasis added) [ 34 ] In my view, Bob’s submissions on the independent legal advice issue are not without merit. It is certainly possible to imagine that he and Robert, neither of them legally sophisticated, might have thought they had a binding agreement and that Robert seeing a lawyer was only a collateral-type move to help defend it against attack by Robert’s daughters.

Nonetheless, Bob’s arguments are not strong enough to establish that the Chambers judge’s finding on this issue involved a palpable error. Let me explain.

[35] First, the fact that the idea of independent legal advice was aimed at defending against possible attacks by Robert’s daughterscan be seen as tending to work, in general terms, in favour of the Chambers judge’s view of the matter rather than against it as Bobsuggests. I say this because, if Robert signed the documents drafted by Mr.

Neil and got independent advice only at some unspecified laterdate, the fact that he had received such advice would be of reduced effectiveness in defending against, for example, an allegation thatRobert had lacked the capacity to enter into the agreement or had been subjected to undue influence. The whole point of the independentadvice, in broad terms, was to address such matters. This would have been most effectively done if the advice was provided at, orimmediately before, when the agreement was signed. [36] Second, and more specifically, Mr.

Neil averred that he saw “the necessity of independent legal advice” as a matter ofdefending against allegations of lack of capacity or undue influence by Robert’s daughters. In terms of conventional legal practice, thiswould involve a lawyer addressing such matters with Robert before the agreement was signed, not after. Unsurprisingly, in his letter toMr. Riou, Mr. Neil said, “I felt it wise to have Robert seek independent counsel before executing these documents” (emphasis added). Allof this can reasonably be seen as being inconsistent with Bob’s suggestion that Mr.

Riou was to act passively and as a mere witness toRobert’s signature. [37] Third, and as noted above, Bob said almost nothing about the idea of independent legal advice in his affidavits. He said onlythat he understood he was to sign the documents with Mr. Neil and that Robert was to sign them with another lawyer “for legal reasons”(at para 79). His affidavits did not directly take issue with the idea that the agreement was contingent on Robert receiving independentlegal advice.

Thus, in the end, his briefly expressed view of the situation, referring to “legal reasons” for Robert to see a different lawyer,can be read as being consistent with the Chambers judge’s conclusion about the significance of Robert getting independent advice andabout the agreement being contingent on such advice being obtained. [38] Fourth, Bob’s submissions overlook Mr. Neil’s evidence that, on May 7, 2018, he contacted Mr. Neil to advise that there wassome urgency to the situation and that he, Bob, was arranging for independent legal advice to be provided to Robert by Mr. Riou.

Again, itwas open to the Chambers judge to see this as confirming the idea that Bob understood the agreement to be contingent on Robert gettingindependent advice and that he needed to make arrangements in that regard if the agreement was to stand. [39] It is true, of course, that the documents drafted by Mr. Neil do not contain any provision to the effect that the agreement wascontingent on Robert getting independent legal advice. Perhaps that might have been expected if the receipt of such advice was, in fact, assignificant as the Chambers judge concluded.

There is no evidence before the Court as to standard practices in this regard.

As a result, thispoint is obviously a consideration but, in the end and on the specific facts of this case, it is only one piece of the larger evidentiary puzzlethat has to be considered in determining whether the Chambers judge made a palpable error. [40] Ultimately, even though there are alternative ways to see the situation here, I conclude that the Chambers judge did not make apalpable error in finding that the agreement between Robert and Bob was contingent on Robert receiving independent legal advice. [41] This, however, is not the end of the tale.

As noted above, Bob also argues that there is an error in the legal dimension of howthe Chambers judge dealt with this issue. He submits the Chambers judge failed to appreciate the distinction between a “true” conditionprecedent, i.e., a condition that cannot be waived by either party, and a condition for the benefit of one party that can be waived by thatparty. In essence, Bob argues that the Chambers judge found the notion of Robert obtaining independent legal advice to be a “true”condition precedent without appreciating the law in this area.

He contends that, if the agreement between him and Robert contained acondition that Robert was to obtain independent legal advice then he, Bob, is entitled to waive Robert’s non-compliance with thatcondition. [42] The basic legal principles in this area of the law are not in dispute. As a general rule, the party benefitting from a condition in acontract can waive the non-performance of that condition by the other party. But, this right of unilateral waiver is qualified by the doctrineof what the Supreme Court has called “true” conditions precedent.

See: Gerald Henry Louis Fridman, The Law of Contract in Canada, 6thed (Scarborough, Ont: Carswell, 2011) at 422 [Fridman]; Angela Swan, Jakub Adamski & Annie Y. Na, Canadian Contract Law, 4th ed(Toronto: LexisNexis, 2018) at 627 [Swan]; John D. McCamus, The Law of Contracts, 3d ed (Toronto: Irwin Law, 2020) at 777[McCamus]; S.M. Waddams, The Law of Contracts, 7th ed (Toronto: Thomson Reuters, 2017) at 428–429. [43] The foundational case in this area is Turney v Zhilka, (SCC), [1959] SCR 578.

It concerned a contract for thesale of land that contained a clause reading as follows: “Providing the property can be annexed to the Village of Streetsville and a plan isapproved by the Village Council for subdivision”. The purchaser made some inquiries of the Village about the necessary approval butreceived little encouragement. He then purported to waive the condition on the ground that it was solely for his benefit and ultimately suedfor specific performance.

Justice Judson, writing for the Supreme Court, rejected the idea the purchaser could proceed in this way, findingthat the contract itself was contingent on the decision of the Village. He wrote as follows at pages 583–584: … The obligations under the contract, on both sides, depend upon a future uncertain event, the happening of which depends entirely on thewill of a third party—the Village council. This is a true condition precedent—an external condition upon which the existence of theobligation depends. Until the event occurs there is no right to performance on either side.

The parties have not promised that it will occur.In the absence of such a promise there can be no breach of contract until the event does occur. … [44] The notion of a “true” condition precedent was revisited and confirmed by the Supreme Court in Barnett v Harrison, (SCC), [1976] 2 SCR 531. It dealt with a purchase of land that was subject to obtaining necessary approvals for this site planand zoning changes. The purchaser made attempts to obtain the approvals but was unsuccessful. He then purported to waive the applicablefeatures of the contract and communicated his willingness to close the transaction.

Justice Dickson, as he then was, wrote for the majorityof the Supreme Court. Noting that the case concerned “a future uncertain event” that was “dependent upon the will of third parties”, hefound that Turney v Zhilka applied and that the purchaser could not waive the conditions in issue. [45] The Turney v Zhilka line of authority has been the subject of considerable academic criticism. See, for example: Fridman at423; Swan at 627–635; McCamus at 778–784.

It remains, nonetheless, the controlling authority in this area of the law. [46] The Chambers judge made no reference to Turney v Zhilka or to the doctrine it establishes. This may well have been because it

was apparently he who raised the idea of the agreement between Robert and Bob being conditional on Robert receiving independent legaladvice.

As a consequence, the Chambers judge did not have the benefit of fully developed arguments on the point and did not workthrough the question of whether any such condition could be waived by Bob or whether, alternatively, it was a “true” condition precedentthat could not be waived. [47] In any event, it is apparent that the Chambers judge erred by failing to analyze the problem before him with reference to theconcept of “true” conditions precedent as explained in Turney v Zhilka.

If he had done so, he would necessarily have concluded that thecondition in issue was not a “true” condition precedent and, as a result, he would not have concluded that the very existence of theagreement between Robert and Bob depended on the condition being satisfied. The key point here is that Robert getting independent legaladvice did not in any way hinge on the uncertain decision or action of a third party or on any other external event or development. Itdepended only on him sitting down with a lawyer.

Thus, this case is readily distinguishable from Turney v Zhilka and its progeny where a“true”, and hence unwaivable, condition precedent has been found to exist. [48] The next question, accordingly, is whether the condition in issue is one that benefits only Bob such that he can waive Robert’sfailure to comply with it. In this regard, Bob argues that the idea of Robert obtaining independent legal advice was raised by Mr. Neil andbrought forward only as a tool or strategy for dealing with attacks on the transaction that might be brought by Robert’s daughters. Asnoted above, Mr.

Neil explained this as follows in his affidavit: 12. It came up that Robert did not have a Last Will and Testament, and I expressed some concern over that fact. Bob said that he wasconcerned that his sisters would see that he got none of the farm if matters were left. We talked about the possible intervention of Robert’sdaughters following his passing. It was my opinion and I expressed it, that if that was a likelihood, that Robert should get independentlegal advice on signing any agreements. 13.

My opinion as to the necessity of independent legal advice, was not due to any concern I had with Robert’s capacity or with anyundue influence by Bob, but was solely as a matter of defending allegations of such by Robert’s daughters. [49] For his part, although not being explicit about the matter, the Chambers judge seemed to find that the requirement for Robert toseek independent legal advice was wholly for Robert’s benefit.

In discussing the importance of such advice, he observed as follows: [123] While it is no part of the lawyer’s duty to impose their sense of fairness on the client, the lawyer might also be expected to pointout that Robert was treating Bob much more favourably than Robert’s other children, if only to confirm that this was Robert’s trueintention.

If this discussion occurred, as I expect it would, it seems to me quite possible that Robert might have reconsidered theagreement or considered changes to its terms. [50] However, it is readily apparent that, in the circumstances of this case, any condition concerning Robert obtaining independentlegal advice was intended to operate for the benefit of both Robert and Bob. Putting aside the Chambers judge’s speculation about howindependent advice would have profited Robert, it is clear that Robert and Bob attended Mr. Neil’s office with the joint objective ofmoving forward with their agreement.

Both men wanted to button it down. There is no way to see the prospect of Robert’s daughtersattacking the transaction as being of any more concern for Bob than it was for Robert. Bob wanted to buy the farm, and Robert wanted tosell it to him. Any strategy for protecting the agreement against attack served both of their interests. It follows, therefore, that because thecondition with respect to Robert receiving independent legal advice did not benefit Bob alone, Bob cannot waive it unilaterally. [51] There is perhaps one other aspect of this matter that requires consideration.

In dealing with contractual conditions of the sort inissue here, courts often imply a subsidiary obligation on the party in Robert’s position to facilitate the satisfaction of, or to do what isreasonably necessary to satisfy, the condition in question. See: McCamus at 775–777; Fridman at 430–432. Dynamic Transport Ltd. vO.K. Detailing Ltd., (SCC), [1978] 2 SCR 1072, is perhaps the leading case in this regard. It concerned a land sale thatwas subject to a condition that the land be divided from a larger parcel of property.

The purchaser sought specific performance and thevendor defended by arguing that the requisite subdivision approval had not been received. The Supreme Court held that the vendor wasunder an implied duty to make the subdivision application. [52] In the present case, it was only Robert who could take the step of receiving independent legal advice. This was not somethingthat Bob could do or a condition that Bob could satisfy.

Thus, as a matter of first impression, it seems that it might be appropriate to implya condition in the agreement between Robert and Bob to the effect that Robert would make reasonable efforts to seek independent legaladvice. Then, so the argument might go, because such efforts were not made successfully, Bob would be entitled to pursue his usualremedies for breach of the main agreement, including specific performance. [53] However, this way of looking at the situation does not reconcile with the factual findings of the Chambers judge.

Heconcluded, at paragraph 157 of his judgment, that Bob’s delay, not Robert’s, caused the failure to obtain independent legal advice. Thatconclusion is well supported by the evidence. More specifically, it is supported by Mr. Neil’s affidavit which lays the failure of Robert toget independent legal advice squarely at Bob’s feet: 18. Following our meeting of October 12, 2017, my understanding was that the Parties were proceeding on the basis of the termsdiscussed and my role was simply to document the transaction and complete the transfers of land.

The only significant issue was timing ofannual payments and Robert left that decision to Bob. 19. I did not hear from Bob as I expected and on December 11, 2017, Robert called my office and spoke with a receptionist askingabout the status of his land sale to his son. 20. After waiting a further period of time, I phoned Bob on January 22, 2018 and obtained the balance of the information I needed, tocomplete the documentation, with the exception that Bob was still non-committal about timing of payment. 21.

Shortly after January 22, 2018, I had my staff complete the balance of the materials related to the transaction with the exception oftiming of payments in the Agreement of Sale, upon which I was again waiting for Bob to provide details. 22. On May 7, 2018, Bob phoned my office. I returned his call that day and he advised that Robert was in the hospital in Kindersley,

Saskatchewan, experiencing health issues, but that his mind was okay. Bob explained that there was some urgency in getting the transactions completed. He provided the details of timing of payments in the Agreement of Sale. [ 54 ] On May 7, 2018, when Bob finally provided the information that Mr. Neil needed to finish drafting the necessary documents, Robert was in the hospital in Unity. At that point, it was not reasonable to expect that Robert, on his own initiative, could or should arrange for independent legal advice. Robert died on May 19, 2018.

Thus, looking at the full picture painted by the evidence, it is not possible to find that Robert breached an implied term of the agreement that he must make reasonable efforts to obtain independent legal advice. As the Chambers judge found, the delay in this regard was in fact caused by Bob. [ 55 ] Accordingly, and by way of

summary on this branch of the appeal, although the decision under appeal is not without its problems, the Chambers judge made no bottom-line error that warrants the intervention of this Court. [ 56 ] This means that Bob’s appeal cannot succeed. Even if he were to prevail with his arguments about the Statute of Frauds and undue influence, his action would still have to be dismissed. As a result, and as indicated earlier, it is not necessary to consider those arguments.

V. conclusion [ 57 ] I find that the Chambers judge made no reversible error in deciding that the agreement between Robert and Bob was contingent on Robert receiving independent legal advice, advice that was never provided. It follows that Bob’s appeal must be dismissed. [ 58 ] In estate cases, it is important not to reflexively order that costs be paid out of the estate. That said, the arguments raised by Bob in this appeal were wholly reasonable and required resolution. Solicitor and client costs, to be taxed if necessary, are to be paid to Bob out of the estate. “Richards C.J.S.” Richards C.J.S.

I concur. “Schwann J.A.” Schwann J.A. I concur. “Tholl J.A.” Tholl J.A.