McCabe v Kowalyshyn, 2022 SKCA 56

Court of Appeal for Saskatchewan Docket: CACV3836 Citation: McCabe v Kowalyshyn , 2022 SKCA 56 Date: 2022-05-10 Between: Margaret McCabe, Sherrie Maloney, Walter Kowalyshyn in his personal capacity and in his capacity as executor of the Estate of Olga Holstien, Violet Vander Voet, Joyce Kowalyshyn, Eugene Kowalyshyn, and Michael Kowalyshyn Appellants (Applicants/Respondents) And Joseph Kowalyshyn in his personal capacity and in his capacity as executor of the Estate of Mike Kowalyshyn, Nicky Kowalyshyn and Debbie Kowalyshyn Respondents (Respondents/Applicants) Before: Caldwell, Ryan-Froslie and Leurer JJ.A.

Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Madam Justice Ryan-Froslie The Honourable Mr. Justice Leurer On appeal from: 2021 SKQB 144 , Yorkton Appeal heard: January 10, 2022 Counsel: Jordan P. Hardy, Q.C., for the Appellants Randy P. Kachur, Q.C., for the Respondent Joseph Kowalyshyn Kevin J. Bell for the Respondents, Nicky Kowalyshyn and Debbie Kowalyshyn Caldwell J.A. I.

OVERVIEW [ 1 ] The Appellants, Margaret McCabe, Sherrie Maloney, Walter Kowalyshyn (in his personal capacity and in his capacity as executor of the Estate of Olga Holstien), Violet Vander Voet, Joyce Kowalyshyn, Eugene Kowalyshyn and Michael Kowalyshyn are or represent eight of the 12 beneficiaries of the Estate of Mike Kowalyshyn [Estate]. They have appealed against the Court of Queen’s Bench Chambers decision in McCabe v Kowalyshyn , 2021 SKQB 144 [ Chambers Decision ], made pursuant to The Administration of Estates Act , SS 1998, c A-4.1 , s 50.5 [ AEA ].

They ask this Court to set that decision aside. [ 2 ] Under the Chambers Decision , a judge approved the sale by the Estate of eight quarter sections of farmland [Farmland] to the respondents, Nicky and Debbie Kowalyshyn [1] , for $1,325,000. Nicky is a beneficiary of the Estate and he is married to Debbie. Joseph Kowalyshyn is the executor of the Estate and one of its beneficiaries.

Two other beneficiaries, who consented to the sale, are not parties to this appeal. [ 3 ] The Appellants put forward three principal grounds for setting aside the Chambers Decision , namely, that the Chambers judge erred when he approved the sale (

a) by relying on inadmissible evidence about the market value of the Farmland, (

b) by disregarding and misapprehending material facts about the bidding process, and (

c) by failing to consider and apply the relevant principles under the AEA . The Appellants ask this Court to reverse the Chambers judge’s approval of the sale and to direct the Estate to sell the Farmland by reserve, public auction. [ 4 ] Having read the Chambers Decision and having considered the Appellants’ arguments in the context of the court record, I am unable to find that the Chambers judge erred when he granted Joseph’s application and approved the sale of the Farmland to Nicky and Debbie. I would dismiss the appeal with costs to the Respondents. II.

BACKGROUND [ 5 ] Mike Kowalyshyn died on July 1, 1996, ostensibly leaving a life interest in his estate to his wife and the remainder of it to their 12 adult children. The Estate owned, inter alia , eight quarter sections of farmland, which have been leased to Nicky and Debbie since the 1990s. After the death of their mother in 2017, the children were to share equally in the Estate. [ 6 ] In 2017, the Appellants commenced proceedings against Joseph and the Estate, as well as against Nicky and Debbie, asserting that the Farmland had been leased at less than fair market rent.

In those proceedings, the Appellants alleged that Joseph had been negligent in his administration of the Estate, had failed to obtain fair market value for its assets, and had breached his fiduciary duties to the beneficiaries, and that Nicky and Debbie had thereby been unjustly enriched. On July 3, 2020, the Appellants applied for

summary judgment seeking, inter alia , an order removing Joseph as executor. [ 7 ] When the Appellants’

summary judgment application came before the Chambers judge, he adjourned it and encouraged the parties to agree on a process for selling the Farmland, which was the Estate’s principal remaining asset. While the parties were negotiating the terms of that process, Nicky and Debbie offered to buy the Farmland for $987,121, which Joseph “conditionally accepted” as executor of the Estate ( Chambers Decision at para 8). This caused further rancour amongst the beneficiaries because the Appellants believed the Farmland was worth more than that. The Appellants contended that Joseph was being less than forthright and was favouring Nicky. Given

their concerns, on December 21, 2020, Walter, Eugene, Joyce and Michael [Bid-Appellants] offered to buy the Farmland for $1,000,000. The four other Appellants consented to that transaction. Joseph rejected the offer. [ 8 ] After Joseph had rejected the Bid-Appellants’ offer, the Appellants filed an originating application seeking directions from the court regarding the selling of the Farmland. Before that application was heard, Nicky and Debbie upped their offer to $1,010,000. When the application came on for hearing, the Chambers judge adjourned it.

Following this, Joseph advised that he intended to auction the Farmland to the beneficiaries and their spouses. He proposed that any beneficiary who bid would be deemed to have consented to the offer that was finally accepted by the Estate, thereby dispensing with s. 50.5 of the AEA , which provides: Sale for distribution only 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.

(3) If an adult beneficiary accepts a share of the purchase money from a sale of real property for the sole purpose of distributing the estate, knowing it to be such, the adult beneficiary is deemed to have concurred 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. [ 9 ] When the matter came back before the Chambers judge, the Appellants expressed their general agreement with the proposed sales process subject to some “tweaks” relating to the waiver of s. 50.5 in the proposed auction process. They submitted specifically that any sale should be subject to beneficiary consent or approval by the court.

Joseph agreed to that change and the auction opened on January 27, 2021, and had a closing date of February 3, 2021, which could be extended if an offer were received on the last day. In rudimentary terms, the agreed-to process was that the Estate would sell the Farmland to the highest bidder of the beneficiaries, that the minimum bid would be $950,000, and that the auction would run until a day had passed without bids. [ 10 ] Nicky and Debbie made several offers as did the Bid-Appellants. Nicky and Debbie ultimately made the highest offer at $1,325,000, which the Estate accepted.

The two beneficiaries who are not party to this appeal consented to that sale. The eight appellant beneficiaries did not. They cited a recent municipal tax assessment of the Farmland that had valued it at $1,422,700. This led Joseph to apply to the Chambers judge for an order approving the sale under s. 50.5(4) of the AEA . The Chambers judge heard that application on March 26, 2021, and described it in these terms: [18] In opposing the proposed sale for $1,325,000.00 to Nicky and Debbie Kowalyshyn, Joyce Kowalyshyn swore an affidavit on March 18, 2021.

She stated that she and her three brothers made a final offer of $1,300,000.00 on February 5, 2021 but were unable to make an offer higher than this due to financial circumstances. On February 24, 2021, Joyce Kowalyshyn contacted SAMA and learned that the estate land had been newly assessed at $1,422,700.00, an increase from the former assessment of $1,150,681.50. Given these new assessments, the applicants refused to consent to the sale of the land for $1,325,000.00. [19] Joyce Kowalyshyn then contacted Wayne Berlinic, a realtor, and asked him to prepare a marketing plan for the estate land. Mr.

Berlinic stated his belief that the most likely sale price for the land would be between $1,448,100.00 and $1,544,800.00 given recent market trends. [20] Joseph Kowalyshyn’s application was heard on March 26, 2021. The decision was reserved. On March 29, 2021, [the Appellants’ counsel], in correspondence directed to the court, advised that later on March 26, 2021 he was advised that Mr. Berlinic had sold 120 acres of farmland near Buchanan, Saskatchewan for $2,083.00 per acre.

If an equivalent price was received for the estate land, the total value of the land would approach $1,778,882.00. [The Appellants’ counsel], on behalf of the applicants then brought an application pursuant to The Queen’s Bench Rules to bring forward two further affidavits sworn by Mr. Berlinic, one on March 29 and one on March 30, 2021. In the latter, Mr.

Berlinic stated that he had sold five quarters of farmland near Rama, Saskatchewan for $2,100.00 per cultivated acre and $500.00 per bush acre. [21] Joseph Kowalyshyn responded by commissioning a formal appraisal of the land by Robin Johnson, a member of the Appraisal

Institute of Canada. He appraised the land using a .86 multiple of the new SAMA assessments and provided a value of $1,209,000.00, including buildings on the home quarter. [ 11 ] Following his receipt of new evidence and argument from the parties, the Chambers judge again reserved his decision.

Under the Chambers Decision , he granted Joseph’s application and approved the sale of the Farmland to Nicky and Debbie, stating: [6] Having considered s. 50.5 of the Act in light of the evidence before the court, the court finds that the sale of the land to Nicky and Debbie Kowalyshyn for the purchase price of $1,325,000.00 shall be approved. [ 12 ] The Chambers judge then explained his reasons for reaching this conclusion under four headings.

Under the first, the Chambers judge—who was well aware of the negotiations that had led to the agreed-upon bidding process—admonished the Appellants for reneging on their agreement to have the Estate auction the Farmland only to the beneficiaries. Under the second, the Chambers judge found that the Appellants’ changes of position detracted from the strength of their argument that the sale to Nicky and Debbie at a price of $1,325,000 would not be in the interest or to the advantage of the Estate and its beneficiaries.

Here, he noted that the Bid-Appellants had offered—with the consent of the other Appellants—$1,000,000 for the Farmland just a few weeks prior to the family auction. Third, the Chambers judge explained why he found that the sale to Nicky and Debbie would be in the interest and to the advantage of the Estate and its beneficiaries. [ 13 ] Lastly, the Chambers judge considered the new evidence the parties had proffered about the market value of the Farmland and he assigned weight to it.

He observed that Joseph’s affiant, Robin Johnson, was a “certified appraiser of land” who had provided a “detailed appraisal”, valuing the Farmland at $1,219,000 in his May 4, 2021, affidavit [Johnson Affidavit]. The Chambers judge noted that this appraisal was below the accepted offer from Nicky and Debbie. The Chambers judge acknowledged that Mr. Johnson had been qualified as an expert witness in several unrelated matters before the Court of Queen’s Bench, had used approved methods of appraisal, and had provided topographical photographs of the Farmland.

The Chambers judge then remarked that, the “court will always favour an appraiser’s report over an opinion of value offered by a realtor, particularly a realtor who proposes to be engaged in the sale of the land” (at para 32). [ 14 ] Looking to the Appellants’ new evidence—i.e., two affidavits of Wade Berlinic sworn March 29 and March 30, 2021 [Berlinic Affidavits]—the Chambers judge found that the opinion of the affiant, a realtor, was unpersuasive: [33] Mr. Berlinic’s opinion of value based solely on value of cultivated acres is not persuasive of all cultivated acres.

Many of the quarters of estate land show significant uncultivated acres. I take judicial notice that a cultivated acre on a quarter

section of land under total cultivation will be worth more than a cultivated acre on a quarter of land with significant uncultivated acres. Modern farm practices with attendant large machinery do not favour smaller and irregular areas of cultivated land. Mr. Johnson’s photographs show significant portions of land not subject to cultivation. [34] Mr. Johnson also physically inspected the estate land and at a time without snow cover. Mr.

Berlinic does not state whether he inspected the land. [ 15 ] Based on his assessment of the Johnson Affidavit and the Berlinic Affidavits, the Chambers judge made the following general comment about the market value of the Farmland: [35] Notably, too, Mr. Johnson referred to the current SAMA assessments of the land value and used a .86 multiple of that assessment. Joyce Kowalyshyn used the SAMA assessment as the fair market value. The court defers to Mr.

Johnson’s qualifications and experience in using the SAMA assessment to arrive at fair market value of the land. [ 16 ] Having stated his overall conclusion at the outset of the Chambers Decision (at para 6), the Chambers judge ended his reasons by awarding costs to the Respondents, payable from the Appellants’ shares of the Estate’s assets. III. ANALYSIS A.

Did the Chambers judge rely on inadmissible evidence? [ 17 ] The Appellants argue that the Chambers judge erred by admitting and relying upon the Johnson Affidavit, which was admitted after the application had been argued and while the Chambers judge’s decision was under reserve. In advancing this argument on appeal, the Appellants point to the principles identified in cases like Hamel v Hamel , 2000 SKQB 263 at paras 24-25 , 194 Sask R 194, and Germain v Automobile Injury Appeal Commission , 2008 SKQB 471 at para 5 , 326 Sask R 312.

However, the Appellants’ argument that the Chambers judge erred by admitting the Johnson Affidavit is not persuasive once the background in which it was tendered and accepted into evidence is understood. [ 18 ] As can be seen from the Chambers Decision , the Chambers judge proceeded on the basis that Joseph had filed the Johnson Affidavit in response to the Berlinic Affidavits, the admittance of which itself required relief from the rules prohibiting the filing of new evidence after a matter has been heard by a court: [2] Notable, too, this application was squarely before the court on March 26, 2021, and the court was about to render a decision shortly after receiving argument.

However, after the hearing, the [Appellants] sought to adduce further evidence respecting the executor’s application to seek approval of a proposed sale of the subject land. This request to adduce further evidence, in turn, necessitated a further application to seek an order to permit the new evidence to be led. In response, [Joseph], the executor of the [Estate], also sought to bring forward further evidence by way of a certified appraisal of the land. [3] Since both parties wish to adduce further evidence, one can hardly oppose the other.

Without considering the principles involved in making a judicial determination, I will accept the parties’ wish to consider this new evidence.

[ 19 ] It is also important to understand that the Appellants had sought the following orders in their application to reopen the hearing: 1. An Order pursuant to Rules 1-4, 1-5, 6-12, 6-21(2) of The Queen’s Bench Rules and the inherent jurisdiction of the Court: (

a) granting the Plaintiffs leave to file the Affidavit of Wade Berlinic, sworn March 29, 2021, and the Affidavit of Wade Berlinic, sworn March 30, 2021 (collectively, the “Affidavits”); (

b) direction regarding the rights of the respondents to file reply evidence in response to the Affidavits; and (

c) direction regarding the parties’ rights to make further submissions related to the evidence contained in the Affidavits and any reply evidence filed by the Respondents. [ 20 ] Which is to say that, when seeking leave from the Chambers judge to reopen the hearing, the Appellants had correctly recognised that, if they were allowed to adduce additional evidence, then procedural fairness required that the Respondents would have the opportunity to file evidence in response. [ 21 ] Indeed, as I interpret the Chambers Decision , the Chambers judge would not have allowed the Berlinic Affidavits into evidence but for the fact that Joseph had proffered the Johnson Affidavit in response.

To tie off a loose thread from the Appellants’ argument, I find no palpable error in the Chambers judge’s characterisation of the Johnson Affidavit as evidence filed in response to the Appellants’ new evidence. In other words, he appears to have loosened the prohibition on the admission of evidence for both sides of this dispute by acting on the general principle that it would be equitable and in the interests of justice to do so in the circumstances. [ 22 ] Given this understanding of the Chambers Decision , it cannot be said that the Chambers judge erred when he admitted the Johnson Affidavit.

While it is not appropriate for parties or their counsel to file evidence after a matter has been argued and reserved, this prohibition is not absolute. The governing principle is that that should not occur, but judges do have the discretion to accept new evidence if they act judicially and in accordance with the requirements of procedural fairness. In that regard, I note the remarks of M.-E. Wright J. in Hamel v Hamel : [25] Litigants should not, of their own accord, file further material after argument and before a decision, in an attempt to bolster their positions. Leave of the Court is required.

The proper procedure to follow would be to apply pursuant to Queen’s Bench Rules 331 and 534 to re-open the case and file further material. Then, as stated by Gunn J. in Pozniak v. Moungos , [1992] S.J. No. 165 (QL) (Q.B.) at page 2 : ...[T]he Court has a wide discretion to allow additional evidence to be presented, particularly where no judgment has been rendered in order that a decision may be made on the merits of the case and that justice may be done.

This discretion is not to be exercised capriciously, but judicially where the equity of the situation warrants it. [ 23 ] Here, the process followed by the Chambers judge was procedurally fair. He also explained his reasons for admitting the Johnson Affidavit in a way that plainly supports his decision to admit that affidavit. While he did not directly address the principles for admitting evidence after the close of a hearing, his reasons for doing so are evident in the context of these proceedings.

On the whole of it, I can find no error on his part by admitting the Johnson Affidavit into evidence. [ 24 ] I find further that there is no basis to interfere with the Chambers judge’s reliance on the Johnson Affidavit.

A complaint that a judge has given too much weight to a piece of evidence gives rise to a question of fact on appeal, which is assessed under the palpable and overriding error standard of review ( Housen v Nikolaisen , 2002 SCC 33 , [2002] 2 SCR 235, at paras 23 and 25 ). [ 25 ] Here, the Appellants have attempted to undermine the weight the Chambers judge attributed to the Johnson Affidavit by poking holes in the reliability or sufficiency of the appraisal it contains.

They do so by picking at the dates of some sales referred to in the appraisal, by noting the lack of explanation for the use of a “median” versus a “mean” multiplier of assessed value, and by identifying other perceived flaws. However, the Chambers judge gave cogent reasons for preferring an appraisal by a member of the Appraisal Institute of Canada over an opinion prepared by a realtor who, the Chambers judge seems to have understood, had an interest in seeing the Farmland marketed for sale to the public (see Chambers Decision at paras 21, 27, and 31–35).

Even if the appraisal were flawed, as argued by the Appellants, those deficiencies would not have overcome the Chambers judge’s assessment of its reliability vis a vis the realtor’s opinion or have overcome his negative assessment of that opinion. [ 26 ] In short, I am not persuaded that the Chambers judge erred when he found the appraisal in the Johnson Affidavit was more reliably probative of the market value of the Farmland than was the opinion set out in the Berlinic Affidavits.

Regardless, even if the Chambers judge had erred by relying on the Johnson Affidavit, that error would not have overridden the result in the circumstances of this litigation. Although the market value of the Farmland is a relevant factor under s. 50.5(5) of the AEA , it was neither the predominant nor a determining factor in the Chambers judge’s assessment of whether the sale to Nicky and Debbie would be in the interest and to the advantage of the Estate and its beneficiaries.

I will explain this further below. [ 27 ] For present purposes, what all of this means is that, even if I had found that the appraisal in the Johnson Affidavit was unreliable or deficient, the Chambers judge’s reliance on it would not have led me to intervene to set aside the Chambers Decision . [ 28 ] Lastly, I would at this point also reject two additional arguments made by the Appellants that relate to the Johnson Affidavit. The first is that the Chambers judge impermissibly took judicial notice of matters affecting the fair market value of farmland in general.

In that regard, when assessing the realtor’s opinion, the Chambers judge took judicial notice that “a cultivated acre on a quarter

section of land under total cultivation will be worth more than a cultivated acre on a quarter of land with significant uncultivated acres” and that modern farming practices “do not favour smaller and irregular areas of cultivated land” (at para 33). [ 29 ] Whether it was proper (or necessary) to take judicial notice of these circumstances as “facts” is a red-herring because the Chambers judge did not rely on those “facts” in his approval of the sale to Nicky and Debbie.

He used them to discount the reliability of the realtor’s opinion as to the fair market value of the Farmland and, as I will explain below, fair market value had little to do with the Chambers judge’s decision to approve the sale.

[ 30 ] In their second argument related to the Johnson Affidavit, the Appellants allege that the Chambers judge erred by failing to order the cross-examination of Mr. Johnson. There was some controversy during the appeal hearing as to whether such a request had been made before the Chambers judge. The Appellants maintain that it had been. The Respondents assert that it had not.

As there is customarily no transcript of the arguments in a Court of Queen’s Bench Chambers matter, this Court will usually look to the record, and to any fresh evidence adduced by the parties that is relevant to the issue (e.g., see: Onion Lake Cree Nation v Stick , 2020 SKCA 101 , [2021] 2 WWR 614), to determine whether an error of this nature has occurred. Here, there was no fresh evidence and the record does not contain a formal (written) application to cross-examine Mr. Johnson on his affidavit and, as well, the Chambers judge made no reference in his decision to having received such a request.

In these circumstances, I am unable to find that the Chambers judge erred by failing to order cross- examination on the Johnson Affidavit. [ 31 ] The Chambers judge did not err by admitting or relying upon the evidence in this matter. B.

Did the Chambers judge misapprehend the bidding process? [ 32 ] Early in his analysis of the issues before him, the Chambers judge wrote: [22] A sole and determinative reason that the sale to Nicky and Debbie Kowalyshyn should be approved is the recognition that the applicants are reneging on a method of sale, the terms of which they not only agreed to, but in which they actively participated. Their agreement to the method of sale was unequivocally evidenced by their participation in the bidding process.

The bidding must have been active since the last bid date of February 3, 2021 had to be extended to deal with the bidding competition. Having agreed that the bidding would be closed to the family, it lies ill with the applicants to now suggest that the bidding should be opened to the public, a completely different audience than they agreed to. [23] But the applicants are not only reneging on who are the appropriate parties subject to the bidding, they also are reneging on the appropriateness of the resultant sale price of $1,325,000.00.

One might ask if the applicants had been successful with their last bid of $1,300,000.00 and had later learned of the new SAMA assessment would they have forfeited their purchase on the speculation that the land had a higher value than they agreed to pay. [24] Having agreed to the proposed method of sale, the applicants’ opposition to the sale is a reversal of positions that the court is unprepared to sanction.

Section 50.5(3) of the Act alludes to a similar situation. That provision states that if an adult beneficiary accepts a share of the purchase price from a sale of land as a distributive share, the adult is deemed to have concurred in the sale.

Similarly, if an adult beneficiary agrees to the method of sale and, more importantly, participates in that method of sale, it lies ill with them to later suggest that the sale did not bring the result they wished. [ 33 ] The Appellants argue that it was an error for the Chambers judge to find that their participation in the bidding process had precluded them from objecting to the sale to Nicky and Debbie.

They submit that they had “expressly reserved the right to object to a sale if they had a legitimate reason for doing so” and that, once Joyce had learned of the newly assessed value of the Farmland, their objection to the sale to Nicky and Debbie was “genuine and entirely appropriate”. [ 34 ] I do not interpret the Chambers Decision as containing a finding that the Appellants were precluded from objecting to a sale. As I read his judgment, the Chambers judge was entirely unpersuaded that the Appellants had a legitimate reason to object to the sale to Nicky and Debbie at the price of $1,325,000.

Notably in that regard, nothing about the new assessment or the Appellants’ objection itself impugned the agreed-upon bidding process or how that had been managed by Joseph. While the Appellants adduced new evidence of market value, there was no evidence that the bargain struck under the bidding process disregarded the interests of the Estate or its beneficiaries. Furthermore, the property assessment had become available after the bidding process had closed and after the Estate had accepted the highest offer received from the bidders.

That is to say, the Appellants’ objection pertained only to the sales price of the Farmland and they only objected to it because it did not reflect what they perceived—after the fact—to be fair value for the Farmland in the public marketplace. [ 35 ] As the Chambers judge well understood, the bidding process had been negotiated and agreed upon by all parties, it had been conducted fairly, and it had established a closed market restricted to Estate beneficiaries and their spouses.

Its object was not to achieve a sale at fair market value; it was to resolve the dispute over the sale of the Farmland fairly and finally. In this light, the Chambers judge did not err when he concluded that the bidding process had achieved its objective and that the Appellants had reneged from their agreement to be bound by that process and by its resulting sale. [ 36 ] The Chambers judge’s conclusions in this regard are wholly supported by the evidence and the proceedings over which he had presided. C.

Did the Chambers judge fail to apply or err in his application of the principles imbedded in s. 50.5(5) of the AEA ? [ 37 ] As an adjunct to the foregoing ground, the Appellants argue that the Chambers judge’s analysis under s. 50.5(5) of the AEA was fatally coloured by his conclusion that their resiling from the agreed-upon bidding process was “a sole and determinative reason” for approving the sale to Nicky and Debbie. The Appellant say that, by improperly focusing on their conduct, the Chambers judge failed to apply or overlooked the principles that underpin s. 50.5(5).

They also submit that he erred by approving the sale at a price of $1,325,000 and by failing to order the Estate to sell the Farmland at public auction. [ 38 ] As to the first of these arguments, I acknowledge the awkwardness of the Chambers judge’s statement that the Appellants’ reneging was “a sole and determinative reason” for approving the sale to Nicky and Debbie (at para 22). I recognise that he also commenced his assessment of the Appellants’ submission that the $1,325,000 sale price was too low by revisiting another aspect of their conduct in this matter, stating:

[25] Not only have the applicants reneged on a method of sale, their opinion respecting what lies in the estate’s best interest has been inconsistent. The eight applicants all agreed in writing that the offer of $1,000,000.00 that four of them advanced in December 2020 was “deemed to be in the interest and to the advantage of the Estate.” [26] Notably, that price was not only $325,000.00 below the price offered just weeks later by Nicky and Debbie Kowalyshyn but, more significantly, below the SAMA assessment then in currency ($1,150,681.50) by $150,681.50.

They fail to see that Nicky and Debbie Kowalyshyn’s offer of $1,325,000.00 is only $97,000.00 less than the new SAMA assessment that Joyce Kowalyshyn discovered after the bidding process was over ($1,422,700.00). In other words, the applicants’ $1,000.000.00 offer in December was seemingly made in disregard to the SAMA assessment but now the applicants engage the new SAMA assessment as the hallmark of acceptable value. [27] Other questions loom. Why Joyce Kowalyshyn thought to contact SAMA after the bidding process and not before the bidding process remains unanswered.

Furthermore, the SAMA assessment is not necessarily the fair market value of any land. In his appraisal, Mr. Johnson uses a multiple of .86 times the SAMA assessment to arrive at a fair market value of the land. [ 39 ] The Chambers Decision is undoubtedly critical of the Appellants, their conduct in this matter, and the coherency of their arguments that the $1,325,000 sale price was too low. The overall tone of the Chambers judge’s statements in this regard may well be the unfortunate manifestation of frustration on his part.

Regardless of tenor, however, the facts he recited in the Chambers Decision are not in error nor is his assessment of the incompatibility of the Appellants’ past actions with their arguments for rejecting a sale at $1,325,000. [ 40 ] Nonetheless, I accept the Appellants’ contention that the Chambers judge allowed his findings in this regard to bleed into his analysis under s. 50.5(5).

This is plainly evident from the following passages of the Chambers Decision , where he wrote: [28] Subsection 50.5(5) guides the court to approve of the sale of estate land 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.” One might conflate that what is good for the beneficiaries singularly governs the court’s decision.

One might also think that maximizing estate funds at any cost is the sole rationale to allow or disallow a sale of estate land. [29] If ss. 50.5(5) was intended to be so simply interpreted, it could have easily stated as much. The considerations under the subsection are not so restricted. In this instance, the applicants have long complained about the length of time the executor has taken to sell the land (a criticism that is unjustified to the extent that he was unable to sell the estate land until their mother died – a provision in Mike Kowalyshyn’s will).

Now, for several months, Joseph Kowalyshyn has attempted to sell the land. He has engaged all the beneficiaries in a process that they participated in. Legal fees necessarily have mounted. A family remains sharply divided, a matter certainly not in the interests of Mike Kowalyshyn’s estate. The land currently lies in limbo since Nicky and Debbie Kowalyshyn have not entered upon the land, uncertain of what is going to happen. These considerations are legitimate reasons why the court might find that the sale should be finalized.

A lot of legal and judicial intervention was engaged to bring the current offer before the court. Those efforts should not be squandered on the speculation that the land might sell for a higher price. [30] Nor does the court find favour with the proposal that the applicants have now laid before the court for a sale in the fall under the direction of Mr. Berlinic. The terms of sale are late-come-upon and complex. They continue to engage the antagonistic relationship between the family members.

The proposal makes certain assumptions and assurances that may not come to fruition and are subject to uncertainty. [ 41 ] I am not, however, persuaded that the Chambers judge erred by taking account of the Appellants conduct in this matter and how that conduct had affected whether the sale to Nicky and Debbie was in the interest and to the advantage of the Estate and its beneficiaries under s. 50.5(5) of the AEA .

In my assessment, an understanding of those factors was required in order to properly answer that question given the ongoing and rancorous litigation involving the Estate and its beneficiaries, which was chiefly related to the disposition of the Farmland. [ 42 ] In short, the Chambers judge did not commit an error of fact in his assessment of the circumstances and those circumstances were material factors in the analysis required under s. 50.5(5) of the AEA . [ 43 ] I further find no reason to conclude that the Chambers judge failed to apply or erred in his application of the principles that underpin s. 50.5(5).

It is true that he did not cite

chapter and verse from prior decisions that have addressed what is meant by “in the interest and to the advantage of the estate of the deceased and its beneficiaries”. However, the principles the Appellants espouse are not rules that must be followed by judges when deciding whether to approve a sale under s. 50.5(5) of the AEA ; they are simply contextual examples of what other judges have taken into consideration in that regard. [ 44 ] The Appellants cite Tomochko v Wilchuk , 2017 SKQB 381 , 34 ETR (4th) 283, for the proposition that an estate exists only for the benefit of its beneficiaries.

They point out that the Chambers judge in this case had a different view but did not identify anyone else as having an interest in the Estate. They also refer to Holter v Holter , 2019 SKQB 102 , for the principle that the number of beneficiaries who consent shows whether a sale is in the interest and to the advantage of an estate and its beneficiaries, noting that eight of 12 beneficiaries of this Estate had opposed the sale to Nicky and Debbie.

The Appellants draw from Taubner Estate (Re) , 2010 ABQB 60 at para 264 , [2010] 9 WWR 121, the principle that an executor has a duty to take proper steps to determine the value of property and to obtain “the best price reasonably attainable”. They argue that the $1,325,000 sale price in this case was significantly less than fair market value.

The Appellants observe that, in many cases (e.g., Harth v Harth 2021 SKQB 139 ; Holter v Holter ; Wanhella v Calvert , 2013 SKQB 319 , 429 Sask R 47; Levesque (Re) , 2013 SKQB 344 ; and Suwala v Main , 2009 SKQB 223 ), courts have ordered an estate to list property on the open market before approving its sale. Here, the Appellants contend that Joseph had both failed to determine the fair market value of the Farmland and to list it.

Looking beyond the sale, the Appellants say the Chambers judge failed to consider their father’s intentions, which was a factor relied on in Tomochko v Wilchuk , arguing he had expressed no testamentary intention to have the Farmland sold for less than its fair market value or in a closed market. [ 45 ] However, and to reiterate, none of these cases lay out hard-and-fast principles of law that a judge must follow. They simply identify the factors other judges have found were material to the decision to approve (or not) a sale of estate real property in the context put before them.

As the decision called for under s. 50.5(5) of the AEA is inherently discretionary, prior cases may guide the exercise of

discretion by a judge who is faced with answering the same question in a different context. But, as Cameron J.A. remarked in Rimmer v Adshead , 2002 SKCA 12 , 217 Sask R 94, where judicial powers are discretionary, they “fall to be exercised as the judge vested with them thinks fit, having regard for such criteria as bear upon their proper exercise” (at para 58). [ 46 ] In this case, I am satisfied that the Chambers judge properly assured himself that the sale to Nicky and Debbie was in the interest and to the advantage of the Estate and its beneficiaries.

He was aware of the Appellants’ complaints about Joseph’s administration of the Estate as executor. He understood that Joseph had tried to sell the Farmland for several months and had engaged all the beneficiaries in the bidding process. The Chambers judge observed that the Estate faced mounting legal fees due to sharp divisions amongst the beneficiaries and the continuing estate litigation—which he saw being perpetuated by the Appellants’ objection to the sale.

At the same time, he understood that the Estate’s principal asset—the Farmland—would be left fallow, producing neither rent nor crops, until the dispute was resolved. [ 47 ] In other respects, he well knew that the sole objection to the sale by eight of 12 beneficiaries was that the $1,325,000 purchase price for the Farmland was lower than their late-come-upon theory about its fair market value. The Appellants had not satisfied their burden of proving the merits of that theory.

On the other hand, the Chambers judge also knew that the same eight beneficiaries had offered to buy, or had consented to the sale of, the Farmland for $1,000,000 two months earlier, each stating that this would be “in the interest and to the advantage of” the Estate and its beneficiaries. Moreover, as Danyliuk J. wrote in Wanhella v Calvert , when addressing an argument that an executor’s duty “is to try to get the best price possible” (at para 14): …That is hardly a startling proposition, but it does not necessarily reflect the language of the Saskatchewan statue.

Had the Legislature intended to impose a duty on a trustee to simply get the highest price, it could easily have said just that. It did not. Rather, a sale is to be “in the interest and to the advantage of” the estate and beneficiaries. Those criteria will not always be congruent with the highest price. [ 48 ] Justice Danyliuk went on to conclude that, while an executor should “strive to obtain full value for realty being sold” so as to safeguard the interests of the beneficiaries, “the ‘best price’ does not always equate to the ‘best deal’” (at para 16).

To this I would add that neither does a sale at “fair market value” necessarily equate to what is in the interest and to the advantage of an estate and its beneficiaries. [ 49 ] Lastly, the Appellants allege that the Chambers judge erred in principle simply because he failed to order the Estate to sell the Farmland at public auction. This allegation does not give rise to a freestanding error in the context of this appeal. The question before the Chambers judge was whether the sale to Nicky and Debbie was in the interest and to the advantage of the Estate and its beneficiaries.

If he had erroneously approved the sale to Nicky and Debbie, it might have become relevant but, as he did not err, a public auction was not a consideration for him or for this Court. [ 50 ] In Kot v Kot , 2021 SKCA 4 , 63 ETR (4th) 161, which dealt with an exercise of judicial discretion in an estate matter, Barrington-Foote J.A. summarised his conclusions on the standard of review for appellate intervention in decisions like the one at hand in these terms: [20] In

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

Such errors may include a failure to give any or sufficient weight to a relevant consideration. [ 51 ] Having reached the bottom of this appeal, it is plainly evident that the Appellants fundamentally disagree with what the Chambers judge found were the facts and his exercise of discretion when approving the sale. However, nothing in the Chambers Decision supports an argument that the Chambers judge in any way misunderstood or misapplied the legal criteria that, in the circumstances of this estate litigation, governed the exercise of judicial discretion under s. 50.5(5) of the AEA .

In short, the Appellants have failed to persuade me that he erred in principle, misapprehended or failed to consider material evidence, failed to act judicially, or reached a decision that is so clearly wrong that it would result in an injustice if left undisturbed by this Court. [ 52 ] On the whole of it, I conclude that this Court is not permitted to intervene to set aside the Chambers Decision . IV. DISPOSITION [ 53 ] I would dismiss the appeal with one set of costs to Joseph and one set of costs to Nicky and Debbie, each payable by the Appellants.

The costs awarded to Joseph may be set off pro rata against each Appellant’s share of the Estate. The Estate may deduct the costs awarded to Nicky and Debbie on a pro rata basis from the proceeds of the sale of the Farmland that are distributed to the Appellants. “Caldwell J.A.” Caldwell J.A. I concur. “Ryan-Froslie J.A.” Ryan-Froslie J.A. I concur. “Leurer J.A.” Leurer J.A.