Estate of William Anthony Gordon (the “Gordon Estate”): The Alberta Court of Appeal affirmed the decision of the Alberta Court of King's Bench (the “Court”) which struck an Expert Report due to late filing and failure to file any interlocutory applications to allow for its filing

By Paul LeClair and Patricia Agoncillo

Importance of the case

The law firms of MerGen Law LLP and Carscallen LLP successfully defended their clients in an interesting case at the Court of Appeal: Gordon v Cote, 2023 ABCA 22. This case illustrates the importance of complying with filing deadlines set out in procedural consent orders.

Facts

The Testator had signed a Will dated January 25, 2019 (the Will). He passed away February 2, 2019. He was survived by his granddaughter, Amanda Gordon (Amanda), and two siblings, Kenneth Thomas Gordon (the Respondent) and Janet Lynn Cote (the Appellant).  The Will left the residue of the estate to Amanda and approximately $400,000.00 to the Respondent. The Appellant was not named as a beneficiary. The Appellant alleged the Will was made when the testator was heavily medicated and cognitively impaired.

The Appellant filed a Notice of Objection to Informal Grant and an Application challenging validity of the Will. A one-day special hearing was scheduled for January 17, 2023, and a procedural consent order was granted March 9, 2022 (C.P.O.). The C.P.O. sets out the terms and deadlines for the special hearing. The C.P.O. required all interlocutory applications be filed and served no later than June 10, 2022.

The Appellant filed an expert report by Dr. Pachet, a neuropsychologist, on November 4, 2022 (the Expert Report) without notice to Amanda or the Respondent.

Issue

The Court was called to determine whether to allow the Expert Report to be entered as evidence at the Application for a Summary Judgment.

The chambers judge struck the Expert Report, commenting the Court can proceed with the materials they had. Further, the chambers judge noted the Appellant had not made any interlocutory application to enter the Expert Report as evidence before the deadline set out in the C.P.O.

Analysis and Decision

The Court of Appeal reviewed Rule 4 of the Surrogate Rules, Alta Reg 130/1995 (Surrogate Rules), which sets out the court's discretion when providing directions:

Application for directions

4(1)  A personal representative or a person interested in an estate may apply in Form C 1 to the court for directions at any time.

(2)  On an application for directions, the court may consider

(a)    practice, procedural or other issues or questions and ways to resolve them, and

(b)    any other matter that may aid in the resolution or facilitate the resolution of a claim, application or proceeding or otherwise fairly or justly resolve the matter for which direction is sought. [emphasis added]

In addressing the Court's discretion, the Court of Appeal cited Decock v Alberta, 2000 ABCA 122 at para 13, which states that absent an error of law, such discretionary decisions are not set aside unless the discretion is exercised unreasonably.

Additionally, the Court of Appeal looked to the standard of review for discretionary decisions set out in paragraph 10 of Kachur Estate v Kachur, 2021 ABCA 343:

[10]           The applications before the court on February 18, 2021 were brought pursuant to the Surrogate Rules, AR 130/95, r 4, Application for Directions, which gives the court discretion when providing directions. The standard of review of discretionary decisions is palpable and overriding error unless there is an error in principle, consideration of irrelevant factors, overemphasis of relevant factors, failure to consider or provide sufficient weight to a relevant factor, or where the decision is clearly wrong [emphasis added]: Koma v Tomich Estate, 2011 ABCA 186, para 10, 338 DLR (4th) 741; PricewaterhouseCoopers Inc v 1905393 Alberta Ltd, 2019 ABCA 433, para 9, 98 Alta LR (6th) 1.

Upon consideration of both parties' arguments, the Court of Appeal concluded the chambers judge did not err in striking out the Expert Report. The chambers judge had considered all relevant facts based on a review of the transcripts at the chambers hearing.

The chambers judge was also concerned about the late filing of the Expert Report. Among the appellant's explanations for the delay in seeking an Expert Report was her counsel's illness and the length of the materials. However, the record showed the appellant was in possession of medical records and affidavits by December 2020, approximately 14 months before the C.P.O.

Finally, the Appellant had no explanation for not communicating her intention to obtain an Expert Report prior to filing it. Ultimately, it was seen by the chambers judge as an attempt to circumvent the terms of the C.P.O.