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PARTIES - Capacity

Monday, April 15, 2019 @ 8:58 AM  


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Appeal by the defendant, Hess, from a summary judgment granted in favour of the plaintiffs, the Executors of the Thomas Estate. The plaintiffs' mother died in August 2014. In June 2015, the plaintiffs commenced an action seeking a declaration setting aside a 2010 lease of two quarter sections of farmland on the basis the defendant acted unconscionably or asserted undue influence over their mother, aged 77. The action further alleged that the plaintiffs' mother lacked legal capacity to enter into the 2010 lease. Three applications ensued. The plaintiffs applied for summary judgment declaring the lease void. The defendant applied to strike expert affidavit evidence filed by the plaintiffs and sought summary judgment on the basis the action was statute-barred. The chambers judge refused to strike the expert opinions. The judge found that the limitation period and unconscionability issues were suitable for summary determination. The judge concluded that the limitation period had not expired, and that the 2010 lease was void for unconscionability. Summary judgment was granted in favour of the plaintiffs. The defendant appealed.

HELD: Appeal allowed. The chambers judge did not err in declining to strike the expert evidence on farm leases, as the witness was a properly qualified expert. However, the chambers judge erred in failing to assess the risks and benefits of admitting the expert opinion regarding the deceased's capacity given its unreliability and lack of probative value. Regardless of the admissibility of that opinion, it was a palpable and overriding error to conclude that the deceased's capacity to commence the proceeding was not a genuine issue for trial. The plaintiffs' capacity evidence was summary and lacked particulars regarding the deceased's symptoms prior to execution of the lease, whereas the defendant's evidence supported his position. In addition, the chambers judge erroneously conflated the issue of capacity to contract with capacity to commence the proceeding for the purpose of assessing suspension of the limitation period. Just as the chambers judge could not have the confidence to make the necessary findings of fact and apply the law in relation to the capacity to commence proceedings, he could not have that confidence in relation to inequality, and thus, in relation to unconscionability. The summary judgment order was set aside.

Thomas Estate v. Hess, [2019] S.J. No. 99, Saskatchewan Court of Appeal, R.G. Richards C.J.S., N.W. Caldwell and B. Barrington-Foote JJ.A., March 22, 2019. Digest No. TLD-April152019003