Geran v Geran Estate, 2022 SKCA 143

Court of Appeal for Saskatchewan Docket: CACV3876 Citation: Geran v Geran Estate , 2022 SKCA 143 Date: 2022-12-13 Between: Crystal Geran Appellant (Applicant) And Ronda Coates in her capacity as an Administrator of the Estate of Larry Wayne Geran, late of Milestone, Saskatchewan, Deceased, and the Estate of Larry Wayne Geran, Deceased Respondents (Respondents) Before: Barrington-Foote, Tholl and Kalmakoff JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Barrington-Foote In concurrence: In dissent: The Honourable Mr. Justice Kalmakoff The Honourable Mr.

Justice Tholl On appeal from: QB 1048 of 2021, Regina Appeal heard: February 11, 2022 Counsel: Kathleen Peterson for the Appellant David Bishop, K.C., and Amy Banford for the Respondent Barrington-Foote J.A. I. INTRODUCTION [ 1 ] This appeal is the result of a dispute between four adult siblings – Ronda Coates; Jonathon Geran; Crystal Geran and Larry Wade Geran – relating to the administration of the estate of their father, Larry Wayne Geran, who died intestate in August of 2018. For the sake of clarity, I will refer to the children by their first names and the deceased as Mr. Geran.

The four siblings are the sole beneficiaries of the estate. Two of them, Ronda and Jonathon, are the co-administrators. [ 2 ] Most of the assets of the estate have been realized and distributed to the beneficiaries. One significant asset remains – a house located on an acreage in or near Milestone [house]. In May of 2021, Crystal, with the support of Jonathon and Larry, applied for an order removing Ronda and appointing her as the co-administrator with Jonathon.

Ronda responded by applying, as co-administrator, for an order, among other things, for judicial approval of the sale of the house on the terms specified in an offer that she had elicited. All other beneficiaries opposed the sale. In the result, a judge of the Court of Queen’s Bench [Chambers judge] dismissed Crystal’s application and granted Ronda’s application to approve the sale, with costs payable by the estate ( Geran v Geran Estate (5 August 2021) Regina, QB 1048/2021 (Sask QB) ) [Chambers decision].

Crystal has appealed the entirety of the judgment. [ 3 ] I have concluded that the Chambers judge erred in finding that Ronda was entitled to bring her application in her capacity as an administrator, pursuant to s. 50.1(5) of The Administration of Estates Act , SS 1998, c A-4.1 [ AEA ]. Further, it is my view that the Chambers judge, having erred on this point, incorrectly dealt with Ronda’s application as one by an administrator seeking approval for a sale of land over the objection of a beneficiary.

As a result of these errors, he adopted the wrong legal test when deciding whether to approve the sale. [ 4 ] It accordingly falls to this Court to consider Ronda’s application afresh. That application is to approve an offer to purchase dated May 31, 2021, with a closing date of September 1, 2021. That offer had expired long before this appeal was heard on February 11, 2022.

For that reason, there is no sale that could be approved by this Court and Ronda’s application must be refused. [ 5 ] Further, I have concluded that the Chambers judge erred by failing to determine whether Ronda breached her fiduciary obligations as administrator. It accordingly also falls to this Court to do so. He also erred as to the test that applies on an application by a beneficiary to remove an administrator.

Ronda breached her fiduciary obligations and should be removed and replaced as administrator. [ 6 ] It is of interest that even if the Chambers judge had not erred in approving the sale of the house, the practical result as to the sale would be the same. The order of the Chambers judge was stayed when this appeal was filed on August 11, 2021. By the time this appeal was heard on February 11, 2022, the offer had long ago lapsed. There was no subsisting agreement for sale of the house, and no application to adduce fresh evidence as to whether there was still a willing and able buyer or otherwise.

In light of all of this, the house could not be sold absent a further application to the Court of King’s Bench or the agreement of all beneficiaries. The judge hearing that application would require updated information as to the terms of any proposed sale, the value of the house, and any other circumstances that might be relevant to the decision as to whether to order a sale. [ 7 ] I would finally note that my brother Tholl J.A. has concluded that this appeal should be dismissed and has accordingly written the dissenting reasons that appear below.

Those reasons summarize the Chambers decision and the background to the Chambers decision. I adopt those summaries, as well as his conclusions as to the standard of review. II. ANALYSIS A. The Chambers judge erred in finding that Ronda’s application was properly brought pursuant to s. 50.5(5) of the AEA [ 8 ] Saskatchewan legislation must be interpreted in accordance with s. 2 - 10(1) of The Legislation Act , SS 2019, c L-10.2 , which is as follows: 2-10(1) The words of

an Act and regulations authorized pursuant to

an Act are to be read in their entire context, and in their grammatical

and ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of the Legislature.

(2) Every Act and regulation is to be construed as being remedial and is to be given the fair, large and liberal

interpretation that best ensures the attainment of its objects. [ 9 ] The specific issue that arises here is the

interpretation of s. 50.5(4) of the AEA . In particular, the question is whether, when there are co-executors or co-administrators, the phrase “the executor or administrator” [subject phrase] in s. 50.5(4) means all of them, or at least one of them. For ease of reference, I will set out certain provisions of the AEA , which bear on the sale of land and are of particular importance for the contextual

interpretation of the subject phrase: 50.3 Real property in which a deceased person has an interest, not ceasing on death, devolves to and is vested in the executor or administrator in the same manner as personal property. 50.4 Subject to

section 50.5, the executor or administrator may sell real property for the following purposes: (

a) paying debts; (

b) distributing the estate among the persons beneficially entitled to it. 50.5(1) The executor or administrator shall not sell real property for the sole purpose of distributing the estate among the persons beneficially entitled to it unless those persons concur in the sale.

(2) Subject to subsections (4) to (6), any sale of real property in contravention of subsection (1) is invalid with respect to any person beneficially interested who did not concur in the sale. …

(4) The executor or administrator may apply to the court for an order approving the sale of real property when any of the following circumstances exists: (

a) an adult beneficially interested in the real property appears to lack capacity and is not represented by a property guardian or a property attorney; (

b) an adult beneficiary does not concur in the proposed sale of the real property; (

c) under a will: (

i) there are contingent interests or interests not yet vested; or (ii) the persons who may be beneficiaries are not yet ascertained.

(5) On application pursuant to subsection (4), the court may make an order approving the sale of the real property if the court is satisfied that it is in the interest and to the advantage of the estate of the deceased and the persons beneficially interested in it .

(6) When the court has made an order approving a sale pursuant to this section, the sale is: (

a) valid with respect to the contingent interests and interests not yet vested; and

(

b) binding on the adults mentioned in clause (4)(a), the non-concurring adult beneficiaries and any beneficiaries not yet ascertained. [10] To begin, I would note that the purpose of these provisions – like the remainder of

Part XI of the AEA – must be understood inlight of their legislative history, and in particular, the predecessor legislation in The Devolution of Real Property Act, RSS 1978, c D-27[DRPA].

The genesis of the DRPA was summarized in the Law Reform Commission of Saskatchewan, Discussion Paper on theConsolidation of Certain Rules and Statutory Provisions of the Administration of Estates Act, 2005 CanLII Docs 214 at 2 [LRC Paper], asfollows: The Devolution of Real Property Act establishes the principle that real property devolves upon a testator’s personal representative in thesame way as personal property, and is distributed among beneficiaries in the same way. In England prior to 1897, only personal propertyvested in the personal representative.

Legal title to real estate did not vest in the personal representative, who instead merely administeredtransfer of the real property to those entitled to it. This apparently simple change in the law was not entirely straightforward. English legislators thought it necessary to complement it with aseries of provisions to clarify the effect of the reform on such matters as sale of realty to pay debts and distribute the estate.

Most of theseprovisions are reproduced in the Saskatchewan Devolution of Real Property Act …. (footnotes omitted) [11] Of particular importance in the context of this appeal is the pre-1897 common law rule that personal representatives could notsell real property unless the will of the deceased had charged it with the payment of debts or legacies (LRC Paper at 9). Absent such aprovision in the will, they could not sell real property to pay debts or, as here, to distribute the estate to the beneficiaries.

In England, thatrule was changed by the Land Transfer Act, 1897 (UK), 60 & 61 Vict, c 65. [12] The DRPA was passed in 1928, as a result of the uncertainty created by the decision in Re McDougall Estate, (SK KB), [1927] 1 WWR 612 (Sask KB) as to whether the changes that had been made by English legislation to the common laws rulesrelating to the devolution of real property, and the administration of estates which included real property, had been effectively reproducedin Saskatchewan.

The DRPA contained provisions which, among other things, confirmed substantially the same changes to the law thatare now addressed in ss. 50.5(3)–(6) of the AEA: see, in particular, ss. 4(1), 11, 12, and 13. The LRC Paper summarized the purpose ofthese DRPA provisions as follows (LRC Paper at 9): In England prior to 1897, real estate could be sold by the personal representative only if the will of the deceased charged it with thepayment of debts or legacies.

Adoption of the rule that real estate is to be administered in the same manner as personal property wouldalmost certainly have changed this rule to permit sale at the discretion of the personal representative if the provisions now contained insections 11 to 13 [of the DRPA] had not been enacted. The effect of these sections is therefore not to confer a power of sale, but to limit itby creating certain exceptions to the general power of sale of estate property vested in personal representatives.

Thus a sale of realty for thepurpose of distribution of proceeds (as opposed to sale to pay debts) requires court approval if the beneficiaries are not all consenting,competent adults, or in the case of infant beneficiaries, if the Public Trustee is unwilling to consent on their behalf. These exceptions wereno doubt preserved to facilitate distribution of land in kind whenever possible. [13]

Section 5 of the DRPA also provided that personal representatives “hold the real property as trustee for the persons by lawbeneficially entitled thereto”. As the LRC explained, this had particular significance where there were two or more personalrepresentatives for the estate (LRC Paper at 4–5): But the description of personal representatives as “trustees” of real property [in s. 5] has created one important distinction. Unlike atrustee, a personal representative can act without concurrence of co-representatives in many cases, including assenting to legacies anddistribution of personal property.

If personal representatives are “trustees” of real property in the full sense, they must act jointly in respectto real property.

Section 17 of The Devolution of Real Property Act explicitly adopts this rule: 17 Where there are two or more personal representatives a conveyance, mortgage, lease or other disposition of real property devolvingunder this Act shall not be made without the concurrence therein of all such representatives or an order of the court, but where probate isgranted to one or some of two or more persons named as executors, whether or not power is reserved to the other or others to prove, anyconveyance, mortgage, lease or other disposition of the real property may be made by the proving executor or executors for the timebeing, without an order of the court, and shall be as effectual as if all the persons named as executors had concurred therein.

It is doubtful that

section 5 is of much practical significance in Saskatchewan. Under The Land Titles Act, 2000, transfer of real propertyheld by the personal representatives must be made jointly, regardless of the effect of

section 5.… (footnotes omitted) [14] In the result, the purpose of s. 17 was to confirm that the English common law rule that personal representatives need notalways act jointly when dealing with personal property did not apply to real property. When the DRPA was repealed, s. 17 was replaced bys. 50.91 of the AEA, which is as follows: 50.91(1) Subject to subsection (2), if there are two or more executors or administrators, a conveyance, mortgage, lease or other dispositionof real property shall not be made without: (

a) the concurrence of all of the executors or administrators; or (

b) an order of the court.

(2) If two or more persons are named as executors and probate is granted to one or more of those persons, whether or not power isreserved to the others to prove, any conveyance, mortgage, lease or other disposition of the real property may be made by the provingexecutors for the time being, without an order of the court, and shall be as effectual as if all the persons named as executors had concurred. [15] This provision, like s. 17 of the DRPA, is not concerned with the sale of real property, but with conveyances, mortgages, leasesor other dispositions of an interest in real property. I note and agree with the reasoning in Materi v Schlosser, (SKDC),

[1945] 2 WWR 15 at paras 11-15 (Sask Dist Ct), on this point. [16] With this backdrop in place, I will turn to the

interpretation of the subject phrase. [17] To begin, it is my view that interpreting the subject phrase in s. 50.5(3) to mean all of the personal representatives when thereare two or more of them better accords with the ordinary and grammatical meaning of “the…administrator”, read in context. Indeed, thereis no reasonable basis to argue that when there are two or more personal representatives with the authority and responsibility to administerthe estate, real property would devolve to and vest in only one of them.

The same is true of the parallel vesting provision in s. 152(1) ofThe Land Titles Act, 2000, SS 2000, c L-5.1 which provides as follows: 152(1) On the death of a registered owner or interest holder, all rights and obligations of the registered owner or interest holder vest inthe personal representative of the deceased registered owner or interest holder. [18] This

interpretation of the subject phrase is also supported by s. 2-24 of The Legislation Act, which provides that in anenactment, “words in the singular include the plural and words in the plural include the singular”. This rule governs unless a contraryintention appears in

Part 2 of The Legislation Act or in the enactment in question. [19] Further, this

interpretation accords with the principle that where there are two or more personal representatives, they must acttogether. That rule is confirmed by The Trustee Act, 2009, SS 2009, c T-23.01.

Section 2(h)(

i) provides that “trustee…includes, unlessotherwise provided… an executor or administrator”, while s. 41 is as follows: 41(1) Unless the instrument creating the trust provides otherwise, trustees shall act unanimously in discharging their duties and exercisingtheir powers as trustees.

(2) Unless otherwise provided by this Act or any other law, trustees are jointly and severally liable for any matters arising respecting thedischarge of their duties or the exercise of their powers. [20] Section 41(1) mirrors the common law rule as to the exercise of authority by co-trustees. As noted in D.W.M. Waters, ed,Waters’ Law of Trusts in Canada, 5th ed (Toronto: Thomson Reuters, 2021), at 3.II.C. (WL) [Waters], the common law rule was that“[t]rustees per contra must always act jointly; a single trustee, if there are more trustees than one, cannot effectively act alone”.

Indeed,there is also some authority for the proposition that in Canada, unlike in England, the requirement for unanimity also applied to co-executors in relation to the sale of estate property by a single co-executor. Carmen S. Thériault, Widdifield on Executors and Trustees, loose-leaf (2022-Rel 10) 6th ed (Toronto: Thomson Reuters, 2002) at § 8:17 (WL) [Widdifield] explains the law on this point as follows: Although it is well established that trustees must act jointly in the exercise of their office, Gibb v. McMahon (1905), (SCC), 9 O.L.R. 522 (Ont.

C.A.), affirmed (1906), 37 S.C.R. 362 (S.C.C.), the position with respect to executors is not clear. The generalrule in England as stated in Williams, Mortimer and Sunnicks, Executors, Administrators and Probate [London: Sweet & Maxwell (1982),being the 18th ed. of Williams on Executors and the 6th ed. of Mortimer on Probate, at paragraph 54 - 58], is that co-executors areregarded in law as the same person and the act of any one of them in the pursuance of the administration is the act of all. However, inWillcocks v. MacLennan, [1946] O.W.N. 490 (Ont. C.A.), Hogg J.A. following the position in Gibb v.

McMahon, 1905 CarswellOnt 227,9 O.L.R. 522 at 525 (Ont. C.A.), affirmed 1906 CarswellOnt 744, 37 S.C.R. 362 (S.C.C.), stated: “If there are several executors of a will,one alone is not entitled to act on behalf of the others in connection with the sale of property forming part of the assets of an estate”. Seealso, Haasz, Re, (ON CA), [1959] O.W.N. 395 (Ont.

C.A.), at p. 19, where Morden J.A. states: “It is well settled that intheir execution of powers, absolute and discretionary, executors must be unanimous.” (emphasis added) [21] The connection between the requirement for unanimity among co-executors and co-administrators and the meaning of thesubject phrase in s. 50.5(3) is readily apparent. Saskatchewan personal representatives are trustees and must act unanimously whencarrying out their duties. This, in turn, strongly supports the conclusion that the phrase “the executor or administrator” in s. 50.5(3) meansall co-executors or co-administrators.

It would not make sense to read s. 50.5(3) as vesting real property in one co-executor or co-administrator, if all must act together to deal with that property. [22] Sections 50.5(4)–(6) of the AEA, in turn, build on the foundation created by s. 50.5(3), specifying when and how personalrepresentatives in whom the real property has vested can sell that property.

Section 50.4 provides the two circumstances in which a sale ispermitted. However, ss. 50.5(5) and (6) then limit that authority, echoing aspects of the common law approach to the devolution of land. Ifthe purpose of the sale is to pay debts and there are no infant beneficiaries, neither the consent of beneficiaries nor a court order isrequired. However, consent is required from or on behalf of at least some of the beneficiaries in every other circumstance.

If there is aninfant beneficiary, the consent of the Public Trustee or a court order is always required, regardless of whether the sale is to pay debts ordistribute the proceeds. If the sole purpose is to distribute the proceeds of sale, court approval is required if the personal representative hasnot received the consent of all competent adult beneficiaries, and of a property guardian or property attorney for any adult that appears tolack capacity.

Court approval is also required if there are contingent or unvested interests or potentially unascertained beneficiaries. [23] The right to apply for an order pursuant to s. 50.5(4) is an integral part of this scheme. It provides for an application to theCourt of King’s Bench where the personal representative wishes to sell but cannot do so because the consent of all beneficiaries cannot beobtained. In those circumstances, the applicant need only satisfy the Court “that it is in the interest and to the advantage of the estate of thedeceased and the persons beneficially interested in it” (s. 50.5(5)).

As I will explain below, that test is significantly different from thatwhich applies where there is a dispute between personal representatives. [24] Further, s. 50.91 does not provide useful context as to the meaning of the subject phrase in s. 50.5(4). As I have explainedabove, the purpose of s. 50.91 – like the predecessor provision in s. 17 of the DRPA – was to confirm that, in Saskatchewan, the Englishcommon law rule which permitted personal representatives to carry out certain functions in relation to personal property does not apply todispositions of real property.

As was there noted, s. 50.91 – like ss. 50.7 and 50.8, which deal with the authority of personalrepresentatives to divide and partition, mortgage, lease and grant other interests in land – does not relate to the sale of land. There was no

need for a provision such as s. 50.91 in relation to the sale of land, as the common law did not contemplate the sale of land by less than all of the personal representatives. Indeed, absent a charging provision in the will, it did not contemplate the sale of land at all. [ 25 ] Finally, interpreting the subject phrase in s. 50.5(4) to require that the application be made by all personal representatives does not create a gap in the legislative scheme. There are other paths to the courthouse when the application does not, as here, arise solely from the lack of consent to a sale by beneficiaries.

Section 46.4(1) of the AEA is as follows: 46.4(1) An executor or administrator may make an application for the opinion, advice or direction of the court on any question respecting the management or administration of the estate. [ 26 ] This provision is not limited to applications to settle differences between personal representatives and beneficiaries. It applies, among other things, where there are differences between administrators. Ronda could have applied for an order for sale of the house pursuant to this section: see, for example, Tomochko at paras 43-44.

In addition, she was a trustee, and could have brought this application pursuant to s. 47 of The Trustee Act, 2009 , which provides as follows: 47

(1) A trustee may apply to court for the opinion, advice and direction of the court on any question respecting the management or administration of the trust, including any question affecting the rights or interests of a person or class of persons claiming to be interested in the trust. [ 27 ] The procedure for making an application under either s. 46.4 of the AEA or s. 47 of The Trustee Act, 2009 is the same as that which applies to an application pursuant to s. 50.5(4) ; that is, by way of an originating application under Rule 3-49 of The Queen’s Bench Rules . There is, accordingly, no basis to conclude that the purpose of the provisions of

Part XI of the AEA relating to the sale of land would be better served by adopting the

interpretation of s. 50.5(4) that was applied by the Chambers judge. [ 28 ] In the result, Ronda, as one of two administrators, was not entitled to apply pursuant to s. 50.5(4) for the order that the house be sold. B. The Chambers judge erred in law by identifying and applying the wrong legal test when deciding whether to approve the sale of the house [ 29 ] Having determined that Ronda was entitled to proceed under s. 50.5(4) of the AEA , the Chambers judge applied the legal test specified in s. 50.5(5).

As noted by Tholl J.A., he relied on Tomochko v Wilchuk , 2017 SKQB 381 , 34 ETR (4th) 283 [ Tomochko ], Holter v Holter, 2019 SKQB 102 [ Holter ], and Wanhella v Calvert , 2013 SKQB 319 , 429 Sask R 47 [ Wanhella ] when determining the correct approach to that test, finding that they stood for the following principles: (

a) a decision by a co-administrator to proceed with a sale should not be lightly trifled with; (

b) the court should evaluate the impact of authorizing a forced sale and take into account the context of the property in issue and those who will be affected by it; and (

c) an estate trustee should always strive to obtain full value for real property, and safeguard the interests of the beneficiaries, but the best price does not always equate to the best deal. [ 30 ] After stating that the last of these principles encapsulated the situation in this case, the Chambers judge commented that the resistance by the other beneficiaries was based on wishful thinking. In his view, there was no evidence that the purchase price was unreasonable or that it would “convincingly deprive the estate…of the optimal value of the House” (at para 39).

He noted the opinions of the real estate professionals that $400,000 was a high price and that the real estate commission would be saved. [ 31 ] The Chambers judge then returned to the language of s. 50.5(6), commenting that the reasons that three beneficiaries had changed their minds about the proposed sale did not matter, as the issue was whether “the proposed sale is in the interests, and to the advantage, of the estate at this time” (at para 40). He concluded that it was, finding that $400,000 was the “best price available for the House on the current market” (at para 41).

He also suggested that it might be “hoped” that finalizing the estate would reduce the contentious personal relationships among the beneficiaries. [ 32 ] In my respectful opinion, this reasoning discloses errors of law. For the reasons noted above, this application did not fall within s. 50.5 and as such, s. 50.5(6) did not apply. That is so because it was not an application by a personal representative who was unable to obtain the consent of a dissident beneficiary.

It was an application by a co-administrator, contrary to the wishes of the other administrator, who was also a beneficiary, as well the other two beneficiaries. [ 33 ] In these circumstances, and even if the application had been properly brought, different principles governed. Holter and Wanhella do not stand for the proposition that the decision of one administrator, where there are two or more, as to how the estate should be administered should not be lightly trifled with. Nor am I aware of any other authority to that effect.

Indeed, the foundation for the judicial restraint principle referred to in Holter and Wanhella does not exist where the dispute is between co-administrators or co- executors. [ 34 ] This is demonstrated by the reasoning in those cases. In Holter , two executors were appointed by the will, which provided that they had the power to sell any part of the estate in such manner and on such terms as they may in their discretion decide. Letters probate were granted. There were six adult and four infant beneficiaries.

One adult beneficiary objected to a sale proposed by the executors, on her own behalf and on behalf of her two infant children. All other beneficiaries consented. [ 35 ] Both executors applied pursuant to s. 50.5(4) of the AEA for approval of the sale. Justice Gabrielson relied on Wanhella for the proposition that the ““best price” does not always equate to the “best deal”” ( Wanhella , at para 17 ). He also cited the following passage from Danyliuk J.’s reasons in Wanhella : [17] I am mindful that this court should not oversee or second-guess every single decision made by the administrator. The principles

behind seeking approval of a sale of real property are well-known, and make abundant sense in this situation. But it must also be borne inmind, not only by the beneficiaries but by the court, that this court appointed this administrator for good reasons - amongst them, to use hisskill and judgment to reach the best decisions for this estate. He must be free to do so. Otherwise, every decision of the appointed trusteewould be open to review by the court in a form of trial de novo.

If the court was disposed to do that, why bother with a trustee? ... [18] This discretion on the part of a trustee is not lightly trifled with, even by the court. There must be good reason demonstrated tointerfere in his decisions. The fact that a trustee has substantial freedom to act is recognized in Anglo-Canadian law. In Re Ocean ManTrust (1993), (SK CA), 113 Sask.R. 179, [1993] S.J.

No. 367 (QL) (C.A.), Wakeling J.A. said: "In determiningwhether a trustee is acting with the best interests of the beneficiaries in mind, a court must bear in mind that the nature of a trustee's poweris discretionary and that judicial interference should be exercised with restraint." [19] Accordingly, the court is not prepared to revisit the O'Brians' offer of January 2013, nor direct the administrator to entertain somefurther offer coming after the accepted June 2013 offer made by AWNBCO Foods Ltd.

Recognizing the discretion enjoyed by theadministrator and the onus on a person seeking to dispute his decision, the court is not prepared to interfere with Mr. Wanhella's decisionsmade on behalf of this estate. There is no evidence suggesting he has made a bargain that is so improvident or which so disregards thebeneficiaries' interests that this court should interfere. [36] I take no issue with this

summary statement of the principle that judicial restraint is required, which is consistent with thisCourt’s reasoning in McCabe v Kowalyshyn, 2022 SKCA 56. That said, Holter and Wanhella not only describe this principle butdemonstrate why it is not engaged here. The “substantial freedom to act” of a duly appointed executor or administrator results from thefact that they have the right and obligation to carry out their duties, within the limits of their appointment.

Judicial restraint recognizes thatthey have been granted that authority. [37] However, because all personal representatives must act jointly when there are two or more of them – including in the exerciseof their discretionary authority to sell real property – a decision by one of them does not constitute an exercise of that authority. In thosecircumstances, a single administrator does not have substantial freedom to act, and the corresponding principle of judicial restraint is notengaged.

As such, it did not apply when Ronda, acting alone and contrary to the wishes of her co-administrator, decided that the offer topurchase the house should be accepted. [38] It is, of course, also true that the court may intervene if the personal representatives fail to carry out their duties as a result ofdifferences between co-administrators. However, that authority is also to be exercised sparingly, as it is for the personal representatives,not the court, to administer the estate.

Widdifield, at § 8:18, explains this principle: If trustees must act unanimously, there arises the problem of compromising the differing views of the trustees. If the power isdiscretionary, the court will not compel a reluctant trustee to concur with the majority if the trustee is acting properly and bonafides: Tempest v. Lord Camoys (1882), 21 Ch. D. 571 (Eng. Ch. Div.), and Hilton, Re, (sub nom. Gibbes v. Hale-Hinton) [1909] 2 Ch. 548(Eng. Ch. Div.).

However, where co-trustees are deadlocked, the court will in a proper case compel the trustees to exercise their discretionin a particular manner: see in this regard Kordyban v. Kordyban (2003), 50 E.T.R. (2d) 116 (B.C. C.A.), additional reasons at (2003), 2003CarswellBC 2019 (B.C. C.A.). In, Haasz, Re, (ON CA), [1959] O.W.N. 395 (Ont. C.A.), the court compelled thetrustees to exercise their discretion on the grounds that there was an imperative duty for them to exercise their power and failure to do sofrustrated the intention of the testator with the result that the beneficiaries might suffer.

The court will also intervene to exercise thetrustee's discretion if there has been a failure by the trustees “as a unit” to exercise their discretion and of manifest prejudice to thebeneficiaries will otherwise result… [39] Waters explores the application of the same principles, including in circumstances where the trustees who cannot agree are alsobeneficiaries. It notes that in Re Engelman Estate (1986), 23 ETR 30 (BCCA), the Court ordered that a house belonging to the estate besold to one of the beneficiaries, rather than third party, as it was “just and equitable” to break the deadlock.

This phrase suggests a broaddiscretionary authority. However, the authors then refer (Waters, at s. 20.II.3(b)) to the later decision of the same court in Kordyban (TrustSettlement) v Kordyban, 2003 BCCA 216, [2003] 6 WWR 606 [Kordyban]: The matter was more fully argued in Kordyban v. Kordyban, where again the deadlocked trustees were also the beneficiaries. One sideargued that intervention required manifest prejudice to the beneficiaries, or the frustration of the settlor’s intention; the other side,founding on Engelman, argued that the test was simply whether intervention was “just and equitable”.

The judge rejected this widereading of the court’s role and held that intervention in a deadlock was appropriate only where the settlor’s intentions might be frustrated,or where there was manifest prejudice to the beneficiaries.

This judgment was affirmed by the Court of Appeal. (footnotes omitted) [40] Waters, having noted that there is some authority for the approach adopted taken in Kordyban, explains that even the high barset by that case is something of a departure from the common law, stating as follows (at s. 20.II.3(c)): If the court can rightly intervene in a deadlock situation when either there is likely to be manifest disadvantage to the beneficiaries or thereis some threat to the fulfilment of the testator’s or settlor’s intentions, then the traditional principle of non-intervention in the decision-making of trustees has been eroded. … The whole problem of trustee deadlock indirectly confirms the crucial distinction between trust duties and trust powers.

For example,trustees may have a duty to sell land and a power to postpone sale; or they may have a power to sell, which means they are not duty-boundto sell. Trustees must act together unless the instrument says otherwise. In the case of a duty to sell with a power to postpone, if theycannot agree to postpone, they must sell. In the case of a power to sell, if they cannot agree to sell, they must not.

The traditional attitudeof the courts, therefore, can be seen as a manifestation of respect for the intentions of the settlor or testator: a deadlock, seen otherwise, issimply the functioning of the trust as established in the instrument. This, perhaps, explains why courts recently have been willing tointervene when it appeared that the testator’s intentions were in danger of being frustrated. (emphasis in original)

[ 41 ] All of this demonstrates that the test to be applied in deciding whether to break a deadlock is very different than that adopted by the Chambers judge. Courts have occasionally shown an increased willingness to find that differences between co-executors constitute a deadlock and to resolve the issue by casting the deciding vote. However, that is so only in limited circumstances. [ 42 ] Those circumstances do not exist here. There is no will that expresses a testator’s intentions and thus no intentions that could be frustrated.

Admittedly, the co-administrators have a duty to complete the administration of the estate and, given that all beneficiaries appear to agree that the house must be sold to enable final distribution to occur, they would have a duty to sell at some point. However, they also have the power pursuant to s. 36(1) (

f) of The Trustee Act, 2009 to postpone the sale “for any period that is reasonable in the circumstances”. The issue, accordingly, is not whether the offer presented by Ronda represents the best price that is available on the current market. Nor is it whether the offer was reasonable.

Rather, it is whether there would be manifest prejudice to beneficiaries if the proposed sale did not occur, which is not only a higher bar but a far broader question than whether the proposed sale was for the current market price. [ 43 ] For these reasons, it is my opinion that the Chambers judge committed material errors of law in the identification and application of the legal test that applied when deciding whether the sale of the house should be approved. Accordingly, this Court must determine whether to grant Ronda’s application to approve the sale. C.

The sale of the house cannot be approved [ 44 ] Ronda’s application is to approve an offer to purchase dated May 31, 2021, with a closing date of September 1, 2021. That offer had expired long before this appeal was heard on February 11, 2022. Ronda did not apply to lead fresh evidence that the offer had been extended, and if so, on what terms.

For this reason alone, there was no sale that could be approved by this Court and Ronda’s application must be refused. [ 45 ] Further, as I have noted above, even if the Chambers judge had not erred in approving the sale of the house, the practical result as to the proposed sale would be the same. Given that there was no subsisting agreement for sale of the house, and no application to adduce fresh evidence, the house could not be sold absent a further application to the Court of King’s Bench or the agreement of all beneficiaries.

The judge hearing that application would require updated information as to the terms of any proposed sale, the value of the house at the time of the application, and any other circumstances that might be relevant to the decision as to whether to order a sale. [ 46 ] I would finally note that although it is not necessary to decide the matter, I would not – in light of the test that should have been applied and quite apart from the lack of evidence of current market value – have approved the sale of the house in any event. The administrators had the authority to postpone the sale.

At the time Ronda made the application, limited time had passed since their appointment and little had been done to market the property. The evidence of value was less than ideal and indeed, appears to have been conservative, given that the offer presented for approval was for an amount in excess of the suggested listing price. The evidence as a whole is insufficient to demonstrate that refusing to approve the proposed sale would result in manifest prejudice to the beneficiaries. [ 47 ] For these reasons, it is my opinion that Ronda’s application to approve the sale must be denied. D.

The Chambers judge erred by failing to find that Ronda had committed a breach of her fiduciary duty and by failing to remove and replace her as co-administrator [ 48 ] As an administrator of Mr. Geran’s estate, Ronda is a fiduciary. In Michael Ng, Fiduciary Duties: Obligations of Loyalty and Faithfulness (Toronto: Thomson Reuters, 2022) at § 5:6 (WL)observes that “[f]or the purposes of fiduciary law, the roles of executor and administrator are fiduciary offices that engage duties of faithfulness, fidelity and loyalty to the estate and its beneficiaries”. As Eileen E.

Gillese, in The Law of Trusts , 3d ed (Toronto: Irwin Law, 2014) at 154, puts the matter, “[a]n understanding of the common law duties imposed upon trustees has as its starting point the fact that a trustee is a fiduciary”. [ 49 ] For the reasons explained above, Ronda is also a trustee. [ 50 ] The core duties of a fiduciary include faithfulness, loyalty and fidelity.

Ng summarizes the duty of faithfulness as follows (at § 2:3): Although the faithfulness required of a fiduciary will depend on the circumstances of each case, faithfulness will consist of at least loyal conduct, in the sense that the role must be carried out exclusively in the interests of another. Fiduciaries may not put themselves in a position where their own interests or engagements with others may possibly conflict with the duties of their fiduciary position.

Indeed, the duty of fiduciaries not to allow their own interests to conflict with their role is a fundamental duty, and has been classified by Professor Waters as being, apart from the terms of particular trusts, one of the three “substratum” obligations of every trustee. … [ 51 ] Similarly, Waters offers this overview of the duty of a trustee as fiduciary at 3.I.A: The hallmark of a trust is the fiduciary relationship which the trust creates between the trustee and the beneficiary.

The whole purpose of a trustee’s existence is to administer property on behalf of another, to hold it exclusively for the other’s enjoyment.

The express trustee is expected to put the interests of the trust and the beneficiaries first in his or her thinking whenever the trustee is exercising the powers, or performing the duties of his or her office. … The fiduciary’s obligations have been defined in a number of ways by the courts and commentators, but essentially it means the duty to account to another, who is the person with the right of enjoyment over the property in question, for all that one does with the property and in the office of trustee.

Nothing may be done which is not directed solely towards the best interests of the trust beneficiary or beneficiaries. … [ 52 ] The duty to act solely for the benefit of the beneficiary is termed “the duty of loyalty”, which includes the duty of the fiduciary not to conduct themselves in a manner that gives rise to a conflict between their duties and the interests of anyone other than those they are

bound to protect: Ng, at § 8:2.

A trustee can use their powers only for the legitimate purposes of their trust, and as Megarry V.-C. said inCowan v Scargill, [1984] 2 All ER 750 at 761, “fairly and honestly for the purposes for which they are given and not so as to accomplishany ulterior purpose, whether for the benefit of the trustees or otherwise”. [53] Here, the Chambers judge found that Ronda’s attempt to use her position as administrator to obtain payment of an amount thatLarry denied was due and payable was “inappropriate and could be characterized as a dereliction of an administrator’s duty” (at para 20).He then found that in attempting to settle the estate in a timely way, she did not act in a manner that lacked reasonable fidelity to thebeneficiaries (at para 22).

He based this conclusion on the finding that there was no evidence that Ronda had “acted in a way that threatensor endangers the property of the estate” (at para 22). [54] With the greatest respect, this reasoning reflects error. As my brother Tholl J.A. notes, Ronda threatened Larry with the loss ofhis third interim distribution as a pressure tactic to try to collect a debt. Larry disputed the amount claimed and that any amount was thendue. Ronda’s conduct was in the course of carrying out her duties as administrator relating to the distribution of the estate.

There is nodoubt but that in doing so, she permitted her own interests to conflict with her duties, failed to put Larry’s interests first in her thinking and,as a result, failed to act exclusively in his interests. These actions constituted a breach of her duty of faithfulness and fidelity and her dutyof loyalty. That her effort to achieve her goals was stymied by the estate solicitors does not change that fact.

The breach remained, just asit would if a trustee returned trust funds that they had improperly taken. [55] As I read the decision of the Chambers decision, the Chambers judge did not decide whether Ronda had breached her fiduciaryduties. With respect, that constituted an error, as he was obliged to answer this key question in order to decide whether she should bereplaced as an administrator. The questions posed by the Chambers judge were whether Ronda’s actions had threatened or endangered theestate property or did not seek to settle the estate in a timely way.

In these circumstances, that was not the correct test. As a result of theseerrors, he did not come to grips with the issue, which was whether Ronda should be replaced as an administrator in light of all thecircumstances, including her breach of fiduciary duty. [56] It is, accordingly, for this Court to decide whether Ronda should be removed as an administrator and replaced by Crystal. It isapparent that the Chambers judge – quite apart from his failure to find a breach of fiduciary duty – was influenced by the fact that since hehad approved the sale of the house, the estate would be promptly wrapped up.

Given that I have concluded that the application to sell thehouse cannot be granted, that has changed. It is also relevant that the other three beneficiaries agree that Ronda should be removed andreplaced. Their position is readily understandable. [57] The Chambers judge also expressed hope, but for obvious reasons did not find, that the relationship between the siblings mightimprove if the administration of the estate was concluded.

I need not consider whether that factor was properly taken into consideration.Even if it was, it would be of minimal weight, and not only because the evidence did not support that speculative conclusion. [58] It is also important that Ronda is an administrator, not an executor appointed by a testator. In Figley v Figley, 2012 SKCA 35,393 Sask R 44 [Figley], this point was summarily made by Richards J.A. (as he then was) in the following passage, which I will reproducefor convenience: [46] The authorities indicate that a court should not act too readily to remove an executor.

As Wimmer J. said in Surminsky (LitigationGuardian of) v. Ulmer Estate, 2000 SKQB 209 (Sask. Q.B.), “To override a testator's choice of an executor is a sensitive exercise not tobe lightly undertaken.” See also: Mitchell v. Mitchell, supra at para. 10…. [59] The statement in Figley and the cases there cited are by no means unique. This principle has deep roots. Anne Armstrong,Estate Administration: A Solicitor’s Reference Manual, loose-leaf (Rel 10, 2022) (Toronto: Thomson Reuters, 1988) at APP I, § I:1, PartII.

Removal and Passing Over of Personal Representatives (WL), more fully explains its nature and its significance in deciding whether toremove an executor, as follows: Judges also continue to express regard for, “the exercise of such a delicate jurisdiction” as they do not “lightly interfere” with the freedomof a testator to name his or her executor. In Mailing v. Conrad, the Court affirmed that, “Any application for the removal of a trusteerequires that due consideration be given to the wishes of the testator, which includes his selection of executors or administrators.” In therecent Ontario case of Chambers v.

Chambers, Gillese, J.A. cited several cases that affirmed the judicial approach to removing executors: The Court should not lightly interfere with a testator's choice of the person to act as his or her estate trustee: Weil, Re, (ON CA), [1961] O.R. 888 (Ont. C.A.), at p. 889. Just as a Court should remove an estate trustee only on the “clearest ofevidence”, so too they should be reluctant to pass over a named executor unless “there is no other course to follow” Windsor v Mako(2008), 43 E.T.R. (3d) 255 (Ont. S.C.J.) citing Crawford v. Jardine (1997), 20 E.T.R. (2d) 182 (Ont. Gen. Div.) at para. 18.

As WrightL.J. explained, “passing over of an executor and granting administration to other parties is an unusual and extreme course, thoughit is within the discretion of the Probate Court”: Re Leguia (No. 2) 155 L.T.R. 270 (C.A.) at p. 276.151 [Emphasis added.] In a case involving the passing over of an executor before he had been granted probate, Laidlaw J.A. held in Re Weil that, “interferencewith the discretion and choice of a person in preparing his last will and testament must be not only well justified but, as has been saidbefore, must amount to a case of clear necessity.” In Re Bushell, a case where all the beneficiaries consented to the removal of acorporate trustee, Maloney J. explained that, “The beneficiaries, by their consent, cannot change the administration of the trust, inasmuchas it is the testator's will, not theirs, which is to be given effect by the Court.

It was his decision to appoint both a personal and a corporateadministrator.” (emphasis in original, footnotes omitted) See also, to the same effect, Widdifield at § 15:5. [60] The fact that an administrator is appointed by the Court of King’s Bench and has the right to apply in the order of priorityspecified in s. 11 of the AEA, may also be of some significance. However, the extent to which that is so depends on the circumstances. In

this case, the competition is between Crystal and Ronda, both of whom are children of the testator with the same priority under the AEA.Accordingly, the priority accorded to them as children under s. 11 of the AEA is not a factor here. [61] Further, Ronda was appointed by consent, rather than as a result of a judicial assessment of her relative merits as anadministrator, based on factors that have been found to be relevant by the case law.

In addition to the ability to convert and distribute theestate, those factors may, among other things and depending on the facts, include the support of the majority of beneficiaries; the ability toact with detachment and to be even-handed; the absence of animus toward beneficiaries; and the absence of competing personal interests:see, for example, Whelan v Chaszewski, 2021 SKQB 286; Raye v Phillip Estate, 2021 BCSC 387, 69 ETR (4th) 302. [62] The primary concern in deciding whether to remove a personal representative is the welfare of the beneficiaries.

Trustees arenot held to a standard of perfection and, as I have noted above, are entitled to exercise their discretion. In Ocean Man Trust, Re (1993), (SK CA), 113 Sask R 179 (CA), Wakeling J.A. expressed this principle as follows: [11] In determining whether a trustee is acting with the best interests of the beneficiaries in mind, a court must bear in mind that the natureof a trustee's power is discretionary and that judicial interference should be exercised with restraint.

Again, I look to Professor Waters (at p.685): “It is as well to remember, however, that the trustee's power reflects a discretion, and that the courts have consistently refused to interferewith a trustee's bona fide exercise of a discretion.

What the trustee is required to do is to put his mind to the matter in question, and, if hethen makes the kind of decision which an honest and attentive man could have made, the court will not agree to his removal.” [Footnoteomitted.] [63] It is also true, however, that courts are not reluctant to remove a personal representative that has been guilty of positivemisconduct, which would include a lack of faithfulness, fidelity, honesty, or loyalty. That, of course, is why Wakeling J.A. referred to thebona fide exercise of discretion as a reason for non-interference.

That point is made in the excerpt from Story’s Equity Jurisprudence citedby Lord Blackburn in Letterstedt v Broers (1884), 9 AC 371 (PC) in Figley at para 32; that is: Story says,

section 1289, “But in cases of positive misconduct, Courts of Equity have no difficulty in interposing to remove trustees whohave abused their trust; it is not indeed every mistake or neglect of duty, or inaccuracy of conduct of trustees, which will induce Courts ofEquity to adopt such a course.

But the acts or omissions must be such as to endanger the trust property or to shew a want of honesty, or awant of proper capacity to execute the duties, or a want of reasonable fidelity.” It seems to their Lordships that the jurisdiction which a Court of Equity has no difficulty in exercising under the circumstances indicatedby Story is merely ancillary to its principal duty, to see that the trusts are properly executed. (emphasis added) [64] These passages are remarkable for their clarity, precision, and consequent staying power.

As Widdifield notes (at §15:5): Although the Letterstedt decision is over 100 years old, the courts today will still apply Lord Blackburn's reasoning as the basicframework for the court's review; see, for example, Holt v. Holt (2003), 1 E.T.R. (3d) 198 (B.C. S.C. [In Chambers]); Schwartz Estate, Re(2003), 1 E.T.R. (3d) 259 (N.S. S.C. [In Chambers]); Bathgate v. National Hockey League Pension Society (1994) 2 E.T.R. (2d) 1 (Ont.C.A.) and Scallon v. Canada Trust Co. (1992), 1992 CarswellOnt 4930 (Ont. Ct. (Gen.

Div.). [65] Finally, it must be determined not only whether Ronda should be removed as administrator, but whether Crystal should beappointed as Jonathon’s co-administrator. As Tholl J.A. details in his dissenting reasons, Ronda has called Crystal’s character, conduct,mental health and capacity to act as an administrator into question. As he also notes, these averments have been denied and hotlycontested. Jonathon, Crystal and Larry have a very different view of the situation.

They have all made a variety of allegations which castaspersions on Ronda’s conduct and trustworthiness as an administrator and on her manner of dealing with them both in that context andotherwise. Ronda denies those allegations.

Jonathon and Larry both support not only Crystal’s application to remove Ronda, but thereplacement of Ronda as co-administrator with Jonathon. [66] In light of all of this – including but not limited to Ronda’s positive misconduct by breaching her fiduciary obligations as anadministrator – I conclude that Crystal’s application to remove Ronda as an administrator of the estate of Larry Wayne Geran and toappoint Crystal in her stead should be granted. III.

CONCLUSION [67] For these reasons, I would allow Crystal Geran’s appeal in its entirety, and would order that Ronda Coates pay costs to her inthis Court on Column 2 of the Tariff, and in the Court of King’s Bench, in both cases on Column 2 of the applicable Tariff. “Barrington-Foote J.A.” Barrington-Foote J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A. Tholl J.A. (in dissent) I. INTRODUCTION [68] Larry Wayne Geran died, intestate, in August of 2018. At the time of his death, he was divorced and had four surviving adultchildren: Ronda Coates, Jonathon Geran, Crystal Geran, and Larry Wade Geran.

They are the four beneficiaries of his estate. Because ofthe overlapping surnames, and the coinciding first names of the deceased and one of his sons, I will refer to each of the children by their

first names and the deceased as Mr. Geran. It is a significant understatement to observe that there was hostility and conflict among thefour children, both before and after Mr. Geran’s passing. [69] Following a contentious and lengthy process, Ronda and Jonathon were appointed as co-administrators of their father’s estate.With the assistance of a solicitor, the estate has been administered to the point where the only significant asset remaining is a houselocated on an acreage in or near Milestone.

In May of 2021, supported by Jonathon and Larry, Crystal applied to have Ronda removed asadministrator and replaced by her. Ronda opposed this request and filed her own application, in her role as a co-administrator, seeking,inter alia, judicial approval of the sale of the house in response to an offer that had been received. Crystal’s application was dismissed andthe portion of Ronda’s application regarding the sale of the house was granted, with costs payable by the estate.

Crystal has appealed theentirety of the judgment: Geran v Geran Estate (5 August 2021) Regina, QB 1048/2021 (Sask QB) [Chambers Decision]. [70] Having considered the reasons of my colleagues, Barrington-Foote and Kalmakoff JJ.A., who would allow the appeal, I findthat I must respectfully disagree with some of their conclusions in this matter. [71] I concur with their

interpretation of s. 50.5 of The Administration of Estates Act, SS 1998, c A-4.1 [AEA], but my opiniondiverges on the other issues. It is my view that the appeal should be dismissed with costs. II. BACKGROUND [72] Mr. Geran resided in the Milestone district. Jonathon lived in Regina and Mr. Geran’s other three surviving children resided outof province. Most of their exact ages were not set out in the material, but they are all adults and have been for many years. While there hadalways been some turbulence among the siblings, it appears to have spiked after Mr.

Geran and their mother separated in approximately2003 and subsequently divorced. The level of hostility, animosity, and mistrust among all four of them waxes and wanes, but it hascontinued to the current day. Each of them is often not on speaking terms with one or more of their siblings. The administration of theestate has exacerbated that existing problem. [73] Mr. Geran died on August 3, 2018, at the age of 71. He did not have a will. On January 16, 2019, Ronda applied to beappointed as the sole administrator of his estate.

Her application indicated that she and her three siblings were the only persons entitled toa share of the estate and that each was entitled to an equal portion. The identification of the beneficiaries and the equal distribution of theestate among the four has not been contested. For reasons that are unclear in the material, Ronda reapplied in June of 2019 seeking thesame order. That application was required to be brought on notice to her siblings.

In her supporting affidavits, Ronda averred that she hadtaken the lead in moving matters forward but was unable to obtain the consent or cooperation of her siblings with regard to theadministration of the estate. In addition, she provided various inflammatory reasons for why she believed that none of her siblings wouldbe a suitable administrator. [74] The statement of property filed with Ronda’s application in January of 2019 set out estate assets in the total amount of$1,647,756.10.

This included a house and one other piece of real property, with the remainder consisting of RRSPs, investments, a creditunion account, and other miscellaneous property. The estate had no unpaid debts. [75] Jonathon, Larry, and Crystal opposed Ronda’s application to be appointed as sole administrator and replied with their owndetailed affidavits. Each of them disputed Ronda’s allegations about their personal shortcomings, set out steps they had taken, andlaunched significant accusations or criticisms back at her. Jonathon sought to be appointed as a co-administrator with either Ronda orCrystal.

Larry wanted co-administrators and averred that Jonathon and Crystal were best suited for the task. Crystal indicated that shewould consent to being a co-administrator with Ronda or Jonathon (or both) but would prefer that Ronda and Jonathon were appointed asco-administrators. Ronda replied with further affidavits that addressed the allegations raised by her siblings. After a lengthy period of time,but with the eventual consent of each of the four beneficiaries, Popescul C.J.Q.B. appointed Ronda and Jonathon as co-administrators ofMr. Geran’s estate on February 3, 2020.

With the assistance of a solicitor, Ronda and Jonathon administered the estate. Progress wasmade, three interim distributions were provided to the beneficiaries, and, by the spring of 2021, the only significant asset remaining to bedealt with was a house located in or near Milestone. [76] On May 20, 2021, Crystal applied to have Ronda removed as the administrator of Mr. Geran’s estate and to have herselfsubstituted as a co-administrator with Jonathon.

She also sought an order requiring Ronda to personally pay the costs of the application.On June 7, 2021, Ronda brought an application, in her role as a co-administrator, seeking the Court’s approval to sell the house inaccordance with the terms of an offer that had been received. Additionally, she sought an order requiring Jonathon to reply tocommunication from her within ten days.

She asked that the costs of the application be paid personally by Crystal, Larry, and Jonathon.Once again, each of the four siblings filed affidavits levelling serious allegations at each other and disputing the ones that had been madein relation to them. The details of those assertions will be discussed, only as necessary, below. The two applications were heard togetheron July 25, 2021, with the Chambers Decision issuing on August 5, 2021. III. CHAMBERS DECISION [77] The Chambers judge began his decision by describing the applications and listing the evidence that had been filed.

He notedthat, at the invitation of the parties, he had also reviewed the affidavits filed on Ronda’s applications to be named as sole administrator.The Chambers judge observed that the applications were ones that required a prompt decision, so his fiat would be conclusory in nature. [78] Turning first to the application to remove Ronda as a co-administrator, the Chambers judge stated that he had both statutoryauthority and inherent jurisdiction to remove and replace an administrator – relying on Figley v Figley, 2012 SKCA 36, 393 Sask R 44[Figley], Ocean Man Trust, Re (1993), (SK CA), 113 Sask R 179 (CA), and Reiter v Powell, 2016 SKQB 100 [Reiter]– although he proceeded on the basis of the court’s inherent jurisdiction.

He noted the following about the exceptional nature of grantingan order removing an administrator:

[10] This power is to be exercised sparingly, and when an administrator wishes to continue in that role, and the circumstances are in dispute, a court is unlikely to intervene summarily. See: Frizzell v Bonneau , 2012 SKQB 358 at para 81 , 404 Sask R 95.

Indeed, in Figley , at para 46 , Richards J.A. (as he then was) stated that “the mere fact of conflict or bad personal relations between a beneficiary and a trustee is normally not enough to warrant the removal of a trustee”. [ 79 ] The Chambers judge referred to a list of factors to consider on such an application, as noted in Whitworth v Whitworth , 2016 SKQB 369 [ Whitworth ], and concluded, “[e]ven after these various factors have been considered, an administrator or executor should not be removed and replaced unless it is demonstrated that such a drastic step is in the best interests of the trust and its beneficiaries.

See: Reiter at para 31 ” (at para 13). [ 80 ] After setting out this framework for his analysis, the Chambers judge determined that there were two overarching considerations: the estate was close to being finalized and three of the four beneficiaries wanted Ronda removed. He then reviewed the allegations of Ronda’s inappropriate action made by Crystal, which were supported by the averments of her brothers.

This included Ronda’s attempt to collect a personal debt allegedly owed to her from Larry by reducing his interim distribution, the fact that Ronda was suing Larry in Small Claims Court, and the criminal charges pending against Larry related to Ronda’s allegations. He further noted that communication had broken down between Ronda and her co-administrator, Jonathon. The Chambers judge recognized the highly contentious interpersonal relationships among the siblings, which were fraught with conflict, tension, and disagreements.

After doing so, he concluded, “I would think it would be difficult for any one of them to navigate through these currents were they the administrator of their father’s estate” (at para 17). [ 81 ] The Chambers judge determined that Ronda should not be removed as a co-administrator, with the following forming the core of his reasoning: [18] Of these various complaints, I agree with Ronda’s counsel that most of them concern a dispute between Ronda and Larry respecting a debt which is wholly unconnected to the estate or its administration.

It is apparent that there is a significant level of hostility between them; however, this unfortunate state of affairs does not appear to, and, in my opinion, has not, impaired Ronda’s ability to fill her duties as a co- administrator. [19] As well, the alleged communication breakdown among the beneficiaries and Ronda, if accurate, is also unfortunate. In her reply affidavit, Ronda disputes some of these allegations, and explains her version of events respecting others.

Communication, of course, is a two-way street, and based on the affidavit evidence, it is not apparent that the blame for these difficulties lies solely at Ronda’s feet. [20] I acknowledge that Ronda’s attempt to obtain payment of Larry’s outstanding debt to her directly from his share of the estate was inappropriate and could be characterized as a dereliction of an administrator’s duty.

Fortunately, McKercher LLP, the law firm representing Ronda and the estate, intervened and prevented her from following through on her ill-conceived plan. [21] I recognize that apart from Ronda, herself, the three other beneficiaries want her to be removed as co-administrator. As Ronda is also a beneficiary, there is not unanimity regarding her continuing in that capacity. [22] As well, no evidence was presented which would indicate that to date Ronda has acted in a way which threatens or endangers the property of the estate.

A copy of McKercher LLP’s trust ledger relating to the estate in question has been forwarded to the other beneficiaries, and Larry attached a copy of this document to his affidavit as Exhibit “A”. A perusal of this documentation reveals that as a co-administrator, Ronda, presumably together with the assistance of Jonathon, has expended considerable effort to settle this estate in a relatively timely way.

There is no evidence which would indicate that when carrying out these duties she acted in a manner that lacked reasonable fidelity to the beneficiaries or endangered the estate’s property. [23] At bottom, I must ask whether at this late stage it is “in the best interests of the trust and its beneficiaries” to remove Ronda as co- administrator: Reiter at para 31 . Taking a holistic view of the current circumstances, including the fact there is a valid offer to purchase the House on the table, it is my considered view that it is not in the best interests of either the estate or the beneficiaries to remove Ronda.

Apart from the fact that the evidence presented does not satisfy the requisite evidentiary threshold needed to show that removal is warranted, I do not believe it is appropriate, let alone in the best interests of the estate or these beneficiaries, to remove Ronda as a co- administrator. [ 82 ] Moving on to Ronda’s application, the Chambers judge referenced s. 50.5 of the AEA , determined that it provided him with authority to approve the sale on the application of one co-administrator, and then reviewed the factual background regarding the proposed sale of the house.

Ronda sought approval to accept an offer of $400,000, which all three of the other beneficiaries opposed. He noted that it was the last substantial asset left in Mr. Geran’s estate. He reviewed the valuation evidence filed by Ronda, which included the opinion from an appraiser that its value was $385,000 (misstated by the Chambers judge as $375,000) and the opinion of two realtors that an asking price of $400,000 was too high.

The Chambers judge acknowledged that the appraiser had said the house was potentially worth between $500,000 and $600,000, if an amount of at least $100,000 was spent on renovations, but the Chambers judge was concerned with the speculative nature of sinking money into such a venture. [ 83 ] The Chambers judge reviewed Tomochko v Wilchuk , 2017 SKQB 381 , 34 ETR (4th) 283 [ Tomochko ], Holter v Holter , 2019 SKQB 102 [ Holter ], and Wanhella v Calvert , 2013 SKQB 319 , 429 Sask R 47 [ Wanhella ], and relied on this jurisprudence for the following principles: (

a) when co-administrators disagree on a sale of estate property, one may apply to the Court of Queen’s Bench for approval; (

b) a decision by a co-administrator to proceed with a sale should not be lightly trifled with; (

c) a court should evaluate the impact of authorizing a forced sale and take into account the context of the property in issue and those who will be affected by it; and (

d) an estate trustee should always strive to obtain full value for real property and safeguard the interests of the beneficiaries, but the best price does not always equate to the best deal.

[84] He found that this last principle encapsulated the situation that he faced.

In approving the sale of the house, he concluded asfollows: [37] … Three of the beneficiaries, one of whom is also a co-administrator, believe that a better price might be obtained, if the current offeris rejected, the House improved and repaired, and, subsequently re-listed. [38] In my respectful view, based on the affidavit evidence filed on this application, this seems like wishful thinking. [39] No evidence was presented which supports the respondents’ view that the purchase price of $400,000 is “unreasonable” or thataccepting it will convincingly deprive the estate, and ultimately, the beneficiaries, of the optimal value of the House.

All real estateprofessionals who have appraised this property are agreed that $400,000 is a high sale price for the property in its current condition.Moreover, if the proposed sale is approved it can proceed without using realtors which will save a not insubstantial amount of money inreal estate commission. [40] It is true that at the outset, the beneficiaries had all agreed to the sale of the House. However, the fact is now three of them no longerapprove of this sale. Various explanations were offered for why these three respondents subsequently withdrew their consent.

In my view,those reasons are not particularly important. On this application, it must be determined if the proposed sale is in the interests, and to theadvantage, of estate at this time. See: Holter at para 26. I am persuaded that it is. [41] Therefore, I will approve the proposed sale of the House for $400,000 to the proposed purchasers – [name of purchasers]. In myview, this sale is in the interest, and to the advantage, of the estate, and all persons beneficially interested in it. In the circumstances, itrepresents the best price available for the House on the current market.

Furthermore, permitting the proposed sale to proceed will allowthe final asset to be sold and the proceeds distributed among the beneficiaries. Once the estate is finalized, it is hoped this will reduce thecontentious inter-personal relationships among these beneficiaries which, regrettably, estate matters often bring to the fore. [85] The fiat did not address Ronda’s request for an order requiring Jonathon to promptly communicate with her.

Whether thisaspect of her application was resolved, abandoned, not seriously pursued, or overlooked is of no moment, because Ronda has not cross-appealed against the Chambers Decision. [86] The Chambers judge ordered that the costs of the applications be paid out of the estate. IV. ISSUES [87] The issues in this matter can be distilled to the following: (

a) Did the Chambers judge err by not removing Ronda as a co-administrator and replacing her with Crystal? (

b) Did the Chambers judge err by ordering that the house be sold? (

c) What costs should be awarded? V. ANALYSIS A. Standard of review [88] The identification and articulation of the relevant legal principles that apply to a particular matter attracts the standard of reviewof correctness: Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235, and Wenkoff v Wenkoff Estate, 2021 SKCA 5 at para 27, 63 ETR(4th) 177, leave to appeal to SCC refused, . Likewise, the

interpretation of legislation is reviewed on the correctnessstandard: Altus Group Limited v Estevan (City), 2021 SKCA 101 at para 34, 23 MPLR (6th) 9 [Altus Group], and Stacey Estate vLukenchuk, 2020 SKCA 55 at para 32, [2020] 8 WWR 668, leave to appeal to SCC refused, . [89] The impugned determinations regarding the removal of Ronda and the sale of the house are discretionary decisions by theChambers judge. The standard of review for decisions of this type was set out by Barrington-Foote J.A. in Kot v Kot, 2021 SKCA 4, 63ETR (4th) 161 [Kot]: [20] In

summary, these cases confirm that appellate intervention in a discretionary decision is appropriate where the judge made apalpable and overriding error in their assessment of the facts, including as a result of misapprehending or failing to consider materialevidence. Appellate intervention is also appropriate where the judge failed to correctly identify the legal criteria which governed theexercise of their discretion or misapplied those criteria, thereby committing an error of law.

Such errors may include a failure to give anyor sufficient weight to a relevant consideration. [90] An award of costs is also a discretionary decision and attracts a deferential standard of review: Carruthers v Carruthers, 2021SKCA 52 at para 134, 56 RFL (8th) 110, leave to appeal to SCC refused, , and Burnouf v Burnouf, 2022 SKCA 6 atparas 73–74, 466 DLR (4th) 521. B.

Failing to remove Ronda as co-administrator [91] Crystal asserts that the Chambers judge erred by failing to remove Ronda as a co-administrator after finding that her conductwas inappropriate and that it could be characterized as a dereliction of her duty as an administrator of the estate. She contends that theChambers judge erred and misapprehended the facts in finding that Ronda’s actions and omissions did not amount to a lack of fidelity, did

not represent a breach of her fiduciary obligations, or did not otherwise constitute a breach of her duties as an administrator of the estate.Crystal further argues that the Chambers judge erred by not removing Ronda in the face of the other three beneficiaries’ desires to haveher removed, the ongoing conflict, and the entirety of the circumstances. She does not allege any errors in the Chambers judge’sstatements regarding the relevant principles of law.

It is his application of those principles that Crystal says resulted in error. [92] Countering these arguments, Ronda submits that the Chambers judge identified the correct tests and principles and properlyapplied them to the facts to appropriately determine that it was not in the best interests of the estate to remove her as a co-administrator andreplace her with Crystal.

She asserts that the Chambers judge did not find that she had breached her fiduciary duties and highlights hisdetermination that there was no evidence that she acted in a manner that lacked reasonable fidelity to the beneficiaries or endangered theestate’s property. [93] I agree with the parties that the Chambers judge did not err in his identification of the relevant principles regarding the removalof an administrator of an estate.

As such, only a brief review of the relevant jurisprudence is required. [94] In Figley, Richards J.A. (as he then was) summarized the law regarding the removal of an executor of an estate as follows: [31] … It has been repeatedly held that the Court of Queen’s Bench has an inherent jurisdiction to remove executors. See, for example:Ocean Man Trust, Re (1993), (SK CA), 113 Sask. R. 179 (C.A.). This seems to be the proper jurisdictional basis fromwhich to approach the appellants’ application. [32] The leading case with respect to the removal of executors is Letterstedt v. Broers (1884), 9 A.C. 371 (P.C.).

There, Lord Blackburnreferred with approval, at pp. 385–87, to a passage from Story’s Equity Jurisprudence [London: Stevens and Haynes, 1884]: Story says, s. 1289, “But in cases of positive misconduct, Courts of Equity have no difficulty in interposing to remove trustees who haveabused their trust; it is not indeed every mistake or neglect of duty, or inaccuracy of conduct of trustees, which will induce Courts ofEquity to adopt such a course.

But, the acts or omissions must be such as to endanger the trust property or to shew a want of honesty, or awant of proper capacity to execute the duties, or a want of reasonable fidelity.” It seems to their Lordships that the jurisdiction which a Court of Equity has no difficulty in exercising under the circumstances indicatedby Story is merely ancillary to its principal duty, to see that the trusts are properly executed. … It must always be borne in mind thattrustees exist for the benefit of those to whom the creator of the trust has given the trust estate. … In exercising so delicate a jurisdiction as that of removing trustees, their Lordships do not venture to lay down any general rule beyond thevery broad principle above enunciated, that their main guide must be the welfare of the beneficiaries.

Probably it is not possible to laydown any more definite rule in a matter so essentially dependent on details often of great nicety. But they proceed to look carefully intothe circumstances of the case. [Emphasis added in Figley] [33] This general approach appears to have been consistently applied by the courts of this Province and elsewhere. See, for example:Watson Estate, Re (1997), (SK KB), 159 Sask. R. 275 (Q.B.) at paras. 9–11; Matiko v. Matiko Estate, 2002 SKQB273; Mitchell Estate, Re, 2006 SKQB 267, 280 Sask.

R. 151. … [46] The authorities indicate that a court should not act too readily to remove an executor. As Wimmer J. said in Surminsky (LitigationGuardian of) v. Ulmer Estate, 2000 SKQB 209, “To override a testator’s choice of an executor is a sensitive exercise not to be lightlyundertaken.” See also: Mitchell Estate, Re, supra at para. 10. As well, the cases suggest the mere fact of conflict or bad personal relationsbetween a beneficiary and a trustee is normally not enough to warrant the removal of a trustee.

See, for example: Watson Estate, Re, supraat para. 12. [95] While Figley involved the removal of an executor, and therefore a direct interference with a testator’s wishes, it is my view thatthe principles are equally applicable to the removal of an administrator. Although an administrator is not chosen by a testator, theygenerally consist of a family member appointed in priority under the governing legislation and have been vetted, to a very limited extent,before being appointed by a judge of the Court of King’s Bench. Once appointed, an administrator undertakes the same tasks as anexecutor.

I find the comments of Mills J. in Whitworth instructive on this point: [8] All of those cases suggest that the removal of an executor is a serious step which should not be taken lightly. The rationale for that isthe deceased has chosen the executor and absent good reason that choice should be respected. In a situation where an administrator hasbeen appointed, there obviously is no choice made by the deceased. In such a case, s. 11 of the [AEA] provides that in an intestacy theorder of priority to apply for administration is the spouse firstly and the children secondly.

There is good reason to respect that order ofpriority. Under The Intestate Succession Act, 1996, a spouse is always the primary beneficiary and will have the most benefit from theproper execution of duties as an administrator. The order of priority follows the beneficiary entitled to the estate. The principle that theCourt sh

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