May 12, 2016
Court of Appeal set aside the decision of the Chambers Judge to proceed by summary judgment since the was based on subjective beliefs of parties and was contentious.
Viczko v. Choquette
2016 CarswellSask 212; 2016 SKCA 52
Saskatchewan Court of Appeal
After testator's death, both plaintiff daughter and son expressed interest in purchasing father's farmland — Executrix daughter prepared agreement to sell farmland to son for appraised value, conditional upon approval of beneficiaries including plaintiff — On son's request and relaying of legal advice from his lawyer wife, new agreement was prepared dropping approval clause — Sale closed, transferring land to son and wife — Plaintiff's application for declaration that transfer was invalid was granted — Chambers judge determined case was appropriate for summary judgment and found lack of good faith on part of son and wife, concluding that transfer from executrix to son and wife was invalid as against plaintiff — Son and wife appealed — Appeal allowed — Chambers judge's decision was set aside in its entirety — Chambers judge erred in proceeding on summary basis using only affidavit evidence, given his reliance on finding of willful blindness and importance of credibility in relation to evidence on that point — Case was based on subjective beliefs of parties and was contentious — Chambers judge's finding of willful blindness on part of son and wife was controversial and evidence to support that finding was inconclusive, at best — Chambers judge committed palpable and overriding error by failing to hear oral evidence or by way of trial, and should have known that without fuller consideration of facts and circumstances he would be unable to come to fair and just determination on merits — Oral testimony and cross-examination would provide proportionate, timely and cost effective approach to enable judge to make findings of good faith and credibility necessary to resolve summary judgment application or trial.
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