Sean Sinclair achieves landmark victory in case involving non-consensual distribution of intimate images and videos

Robertson Stromberg LLP lawyer, Sean Sinclair, successfully represented a client in a recent lawsuit dealing with the non-consensual distribution of intimate images and videos.  The case was a first of its kind in Saskatchewan and resulted in the largest damages award in Canadian history against a distributor of revenge porn. The matter was reported in the CBC. Read it here.

Related News and Articles

Sean Sinclair Fights to Open Court File

Sean Sinclair, representing the Canadian Broadcasting Corporation and the Globe & Mail, brought a successful court application to open up part of a court file about the residential school system settlement. Sean was quoted in the related news story saying, "I...

read more

Sinclair appointed to the Law Foundation of Saskatchewan

Sean Sinclair has been appointed to the board of directors of the Law Foundation of Saskatchewan.  The Law Foundation of Saskatchewan serves an important role in promoting access to justice by funding organizations involved with legal education, legal research, legal aid, law libraries and law reform. 

read more

Internet and Social Media Defamation

I commonly receive telephone calls related to internet and social media defamation. The internet and social media are ripe with slanderous statements posted by people who perceive they have absolute anonymity. These posts can impact people’s careers, their families,...

read more

Robertson Stromberg LLP listed as one of Canada’s Best Law Firms of 2023 by the Globe and Mail

Robertson Stromberg LLP has been listed as one of Canada’s Best Law Firms of 2023 by the Globe and Mail. The Globe and Mail partnered with Statista to determine which law firms in Canada are held in the highest esteem by their colleagues, and the results reflect the 200 firms that received the highest number of recommendations from others across 29 service areas.

Almost 25,000 lawyers, as well as in-house lawyers and legal executives working in legal departments of a company across Canada, were actively invited to take part in the survey, and Statista recorded more than 10,000 recommendations for law firms in the different fields of law.

Robertson Stromberg’s areas of distinction include corporate and commercial, and dispute resolution (litigation, arbitration and investigations).

To see the full listing of the Best Law Firms in Canada, click here.

Related News and Articles

Will Hampton Completes Bar Admissions Program

Congratulations to Will Hampton on completing the Bar Admissions Program and signing the roll at the Law Society of Saskatchewan. Will is now a member of the Law Society and is eligible to practice law in this province. For more information about the Law Society of...

read more

Jennifer Pereira, Q.C. presented Community Service Award

Congratulations to Jennifer Pereira, Q.C. on her recognition by The Canadian Bar Association (Saskatchewan Branch) with the Community Service Award. The Community Service Award recognizes lawyers for their outstanding dedication, service and commitment to the...

read more

Jennifer Pereira, K.C. presents at Arc Group Canada Insurance Trends 2023 Seminar

Join Jennifer Pereira, K.C., in Toronto on November 16 for a robust discussion on emerging risks and trends that will impact the insurance industry in the upcoming year. Hosted by the Arc Group Canada the insurance seminar will be followed by a cocktail reception with guest speaker Hayley Wickenheiser, an Olympic gold medalist, author, motivational speaker, former Canadian ice hockey player, resident physician and assistant general manager for the Toronto Maple Leafs.

Jennifer Huneault, LL.B. CRM of Alexander Holburn will be moderating an insightful discussion on how the insurance industry will be affected by arising risks and trends in 2023. The panel will address the impact that cyber breaches and inflation will have on the North American market, challenges facing the London market including insolvency-based claims and the impact of social inflation, and global trends in class action litigation.

Hollis BromleyDavid McKnight and Scott Harcus of Alexander Holburn will be speaking on the panel alongside their peers from Canada, the US and the UK, including Catherine Chaput (Quebec), Jennifer Pereira, K.C., (Saskatoon), Jennifer Stegmaier, (Chicago), and William Naylor (London, UK). For more information about the event and the speakers, please visit: http://ow.ly/tklI50LtV29

Related News and Articles

Saskatchewan Estate Litigation Update: Bell v Bell, 2022 SKQB 198

The recent Saskatchewan Queen’s Bench decision in Bell v Bell, 2022 SKQB 198 is an example of a Will challenge which did not succeed in raising a genuine issue for trial.

Bell reminds us that Courts will generally require firsthand evidence of incapacity or of coercion before the Court will subject a Will to the expense and delay of trial. If Courts consider the challenger’s evidence to be more circumstantial or unrelated in time to the specific signing of the Will, the Courts may find that there is no genuine issue.

Factual background:

The factual background in Bell can be summarized as follows:

  1. This will challenge was in relation to the Estate of Laurette Josephine Bell;
  2. On January 8, 2020, at the age of 86, Laurette executed a will (“Will”). After her death, one of her sons, Wayne, wished to have the Will proven in solemn form. Solemn form refers to the process of proving the validity of a Will through actual firsthand evidence in a trial process;
  3. In the Will, Laurette named two of her sons, Donald Bell and Grant Bell, as joint executors. The Will made two specific bequests and then proceeds to instruct that the rest of Laurette’s estate was to be divided equally among her children for their own use absolutely;
  4. Immediately following that bequest, however, the Will provided that Laurette’s son, Wayne, the applicant, was “not to receive anything from my estate nor any of his issue”;
  5. Laurette subsequently died on August 18, 2021, at the age of 88;
  6. Wayne sought to challenge the validity of Laurette’s Will and alleged that Laurette had been subjected to undue influence and/or had lacked capacity at the time the Will was executed;
  7. In Saskatchewan law, a will challenge requires a two-stage process. In the first stage, the challenger must first show that there “is a genuine issue to be tried.” That is, the applicant must generally offer evidence that, if accepted at trial, would tend to negate testamentary capacity or establish undue influence. Only if this genuine issue is raised at the first stage will a trial process (second stage) be legally required to actually determine credibility and make final rulings on whether the specific will is valid.
  8. In relation to testamentary capacity, Wayne suggested that a genuine issue was raised by the cumulative effect of the below factors:
  1. Laurette was elderly (87 years old at the time the Will was executed);
  2. Laurette had been forgetful and confused, as allegedly evidenced by her erroneous insistence that a historical loan to Dawn (the daughter of Wayne) remained outstanding (when Wayne alleged, and it did appear on the available evidence, that said the loan had been paid already years earlier); and
  3. That Laurette was forgetting names and had gotten lost in the mall on one occasion.
  1. In relation to the issue of alleged undue influence exercised on Laurette, Wayne alleged that Grant, Don and Garth (other sons of Laurette) were communicating disparaging and false statements to Laurette about Wayne and Dawn. Wayne essentially suggested that such poisoning had caused Laurette’s free will to be overburdened to the point that cutting Wayne out of the Will was not Laurette’s own voluntary act.
Issue:

The issue, as in most will challenges, was whether or not the challenger had raised a genuine issue requiring a trial (in relation to either capacity or coercion).

Court ruling in Bell:

The Court ultimately held that Wayne had not raised a genuine issue.

First, on the issue of capacity, the Court held:

  1. The fact that Laurette was 87 years of age was not enough to raise a genuine issue. The Court held that some 87‑year‑olds do lack testamentary capacity, others do not. Age does not negate testamentary capacity;
  2. Second, the Court did not find that a genuine issue of capacity was raised merely by the fact that Laurette may have mistakenly thought that a 20 year old loan to Dawn, remained unpaid.   The Court held that the issue was not material. If the loan had been repaid in full and if Laurette was mistaken in the belief that the loan was still outstanding, did not itself lead to the conclusion that Laurette was not competent to execute the Will on January 8, 2020. The Court held:
  1. 52 …Although Laurette may very well have been wrong about the repayment of the loan, this circumstance does not compel the inference that she was incompetent or lacked testamentary capacity. Many people forget details of the past and the fact that one may have been mistaken does not mean that she was incompetent or was not capable of executing a valid will. Even assuming for the moment that a trial of an issue was ordered and the applicant was able to establish this point, it does not amount to “some evidence which if accepted at trial would tend to negative testamentary capacity”. See Dieno at para 32 and Kapacila at para 22.
  1. Similarly, the fact that Laurette may have forgotten some names and may have gone in the wrong direction after leaving a certain business on one or more occasions does not constitute evidence that would negate testamentary capacity.

Second, the Court held that Wayne had no firsthand evidence of undue influence in relation to this Will:

  1. The Court held that the theory of Wayne was that Grant, Don and Garth somehow fed Laurette misinformation about the misappropriation of funds which caused Laurette to wrongfully view Wayne in a negative light. However, the Court held that “even if Laurette was wrong about her presumptions and perceptions, there is no evidence that there was influence that would have overburdened her will.” (para 56)
  2. The Court also noted that there was a crucial difference between:
  1. Merely alleging that there was undue influence or circumstantially that there must have been an undue influence because of what Laurette did; and
  2. Offering actual firsthand evidence which is potentially capable of establishing undue influence in relation to a Will.
Conclusion:

Ultimately, the Court in Bell held that no genuine issue had been raised on Wayne’s evidence.

Rather, the uncontradicted evidence before the Court was that Laurette went to her lawyer and provided the lawyer with precise, cogent, clear instructions to remove Wayne as a beneficiary. The lawyer who drew the will was a very experienced lawyer in estates, took Laurette’s instructions and found no cause for suspecting undue influence or a lack of testamentary capacity.

Bell is an example of a case where the challenger no doubt had genuine concerns about what caused his mother to remove him from the Will. Such is a natural emotional reaction. That said, Bell reminds us that circumstantial concerns about unexplained actions by a testator (even if the testator’s actions are hurtful and shocking to a disinherited family member) are not the same as first-hand evidence, actually capable of establishing incapacity or actual coercion on the date of the signing of the Will.

Contacting a Lawyer on this Subject

James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or [email protected]. The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations.

Read more on our blog.

The Saskatchewan Estate Law blog is dedicated to providing practical, real-world information on Estate Law issues that affect Saskatchewan residents. The blog is written by RS lawyer, James Steele, whose practice focuses on estate litigation.

Related News and Articles

Estate Litigation Update: Poole v Dailey, 2020 SKQB 226

I practise in the area of estate litigation and am often reminded of the importance of having a clearly drafted Will. A good recent example comes from the decision in Poole v Dailey, 2020 SKQB 226. The deceased had left his estate between his two children, Brian and...

read more

James Steele featured in Winter 2021 Edition of Bar Notes

James’ most recent article relating to Professional Regulation and the Duty of Fairness in Investigations is featured in the Winter 2021 edition of Bar Notes, the magazine of the Canadian Bar Association Saskatchewan Branch. In it, James canvasses recent case law and...

read more

James Steele presents at STLA Fall Conference

STLA Fall Conference Challenging Wealth Transfers: Themes, Trends & ToolsJames Steele will be presenting at the STLA’s fall conference: Challenging Wealth Transfers: Themes, Trends and Tools on October 22, 2021. James’ presentation is entitled “Steps in a Will...

read more

Funeral expenses: Why executors should pay them promptly

This article discusses the payment of funeral expenses out of an estate, and why executors should pay them promptly. The first reason is practical. After death, the funeral home is often the first to provide a service to the estate. It disposes of the body in a safe...

read more

Enforcement of Cross-Default Clauses

It is common in Saskatchewan that a farmer will go to the same financer for more than one loan facility. In many cases, the typical situation plays out as follows:

The farmer, getting started or acquiring land from a parent, requires a mortgage to purchase the land. Then, as spring approaches each year, the farmer requires an input loan to purchase seed, fertilizer, fuel etc. Each year the farmer may consider purchasing new equipment, and each time he or she does, they likely ask for additional financing to purchase that equipment.

Typically included in the financing agreement is what is called a cross-default clause. Typically, only the land purchase is secured by a mortgage, and the lending agreements will often state that, while the input loan is not secured against the land, a default on the input loan is also a default on the mortgage and equipment loans, allowing the bank to call on all its security. From there, the bank may decide to enforce on all of the equipment and land and collect on all of its debts, even though the other loans are current.

Recently, the Honourable Madam Justice Richmond called into question whether this is permissible. In the unpublished decision of Farm Credit Canada and Bodnar (QB 167 of 2021 – JC of Yorkton), the Bodnars ran into financial difficulty and defaulted on their input loan with FCC. They also had mortgages with FCC, which remained current. FCC sought to enforce on the land and the mortgage under a cross-default clause in the input loan.

After attending Court mandated mediation, FCC sought leave to foreclose. The Court concluded that not only could the Bodnars meet their obligations under the mortgage (being the monthly payments), they were actually doing so. Given the remedial nature of The Saskatchewan Farm Security Act, as codified by section 4 of the same, the Court concluded that it was not just and equitable to grant FCC leave and dismissed the application. FCC was not permitted to realize on the land.

While each application before the Court is fact specific, and in no way should this be seen as preventing leave in every application relying on a cross-default provision, it does provide hope to the farmer who is trying their best and keeps their mortgage current. Provided the mortgaged lands are not at risk of loss, which in most cases they are not, the Court may not permit realizing on land where the mortgage is current, even where one, or perhaps more, of the other loans, are not current.

It should be noted, however, that if an input loan remains unpaid and judgment is obtained, the lender may eventually be able to enforce the judgment against the land. While this process is significantly lengthier, the decision in Bodnar should be considered a temporary reprieve and not a fulsome solution.

This article is intended to provide legal information only, not legal advice. For more information about debt enforcement issues in Saskatchewan, contact:

Travis K. Kusch
Direct: 306-933-1373
Email: [email protected]

Related News and Articles

The Deadbeat Debtor – Is it Worth it?

All too often, creditors are forced to face the realization that their debtor cannot, or simply will not, pay. Whether it be because of a tenant, purchase of goods or contractor, the creditor is faced with very few avenues to recover the debt. The creditor is forced...

read more

Protecting Farmer’s Equipment: A Bushel of Rights

Perhaps more than any other profession, farmers on the Prairies are susceptible to financial pressures. Whether it be due to a late winter, a lack or precipitation, family pressures or the present Covid-19 pandemic, the agricultural business carries many risks. To...

read more

Commercial Leases and the Impact of COVID-19

The novel coronavirus (COVID-19) continues to affect the day-to-day lives of millions of Canadians. As a result, businesses continue to face issues regarding cash flow, which in turn forces those businesses into difficult decisions as to which obligations they will...

read more

Kusch and Clavelle Contribute to CBA BarNotes

The most recent issue of the Canadian Bar Associations's BarNotes contains articles by two RS lawyers. Travis Kusch's article “Closely Held Corporations: Avoiding the Messy Break-up”  offers practical advice to families who enter into business together. Curtis...

read more

Tiffany Paulsen, K.C. to Participate in Family Law Panel

willemien-kruger-lawyer-robertson-stromberg

Join Tiffany Paulsen, K.C., at the University of Saskatchewan’s College of Law on October 25, 2022, where she will participate in a panel discussion entitled Using Data and Design for Action: Next Steps For Family Justice in Saskatchewan. The discussion will include perspectives on how leaders of the justice sector are using data and design methods to foster a collaborative and coordinated approach to improving family justice in Saskatchewan. The event is open to the public and available for CPD credit. For more information, click here.

Related News and Articles

Can I quit my job to avoid paying my ex child support?

The answer is no, probably not. If a payor is seeking to quit their job simply to avoid paying child support, this is likely a non-starter. However, if a payor’s reduction in income falls within one of the reasonable exceptions, and evidence supporting this is...

read more

What You Need to Know About New Assisted Reproduction Laws

The Children’s Law Act, 2020 has recently come into place in Saskatchewan. This has updated the laws relating to decision-making and parenting time of children.  However, this article focuses on the changes made to assisted reproduction in Saskatchewan. The new...

read more

Tiffany M Paulsen receives Q.Arb designation

Congratulations to Tiffany M. Paulsen, Q.C., on achieving Q.Arb designation from the ADR Institute of Canada (ADRIC). ADRIC is Canada's preeminent self-regulatory professional Dispute Resolution organization. It provides education and certification, promotes ethical...

read more

Binding Pre-trial Conferences in Family Law Proceedings

In October, 2020 the Queen’s Bench Rules were amended to enable parties in Family law proceedings to participate in “Binding Pre-trial Conferences.” For background, a typical Pre-trial Conference is intended to facilitate the resolution of a family law matter, or if...

read more

Can my child choose where they want to live?

The short answer is no. However, the wishes of children can be considered in determining parenting arrangements. As the Court does not want children to participate in family law disputes, this article briefly touches on how to put the wishes of a child before the...

read more

Retroactive Child Support: Should you be Worried?

The recent Supreme Court of Canada decision, Michel v Graydon, 2020 SCC 24  is likely going to cause late night anxiety for some parents as the Court determined that, no matter how old the “children” are, parents may still collect unpaid child support from the other...

read more

Whether it’s personal or business, we handle cases ranging from wills to overseeing complex business deals, and everything in between. Our success comes as a result of our collective effort. Combining the experience of your lawyer together with the resources of our team, you can put your trust in us to handle your case with confidence.

Area of Expertise