Raymond v. Raymond Estate, 2010 SKCA 86

• Judge: Ottenbreit, J.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: June 23, 2010
• Jurisdiction: Saskatchewan
• Citations: 2010 SKCA 86;(2010), 359 Sask.R. 123 (CA)

Raymond v. Raymond Estate (2010), 359 Sask.R. 123 (CA);

    494 W.A.C. 123

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. JL.061

Barry Alfred Raymond (appellant) v. Beverley Barbara Anderson, as Executrix for the Estate of Helen Barbara Raymond and Beverley Barbara Anderson, as Executrix for the Estate of George Alfred Raymond (respondent)

(No. 1668; 2010 SKCA 86)

Indexed As: Raymond v. Raymond Estate

Saskatchewan Court of Appeal

Ottenbreit, J.A.

July 14, 2010.

Summary:

A father and mother and their two sons, "Barry" and "Alan", were registered owners of a half-section of farming land as tenants in common, each holding a one quarter undivided interest. In May 2002, the father and mother executed an agreement for sale of their interests in favour of Barry. The transfer of land was not completed. The father died in 2006 and the mother died in 2008. Barry brought an action against their estates to enforce the agreement for sale, seeking specific performance or damages in lieu.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2008), 318 Sask.R. 65, allowed the action. Barry was entitled to judgment against the estates for damages in lieu of specific performance, fixed at $70,500. Barry appealed, seeking specific performance. The executrix of the estates applied for an extension of time for cross-appealing.

The Saskatchewan Court of Appeal, per Ottenbreit, J.A., dismissed the application.

Practice - Topic 9165

Appeals - Cross-appeals, notices of contention and notices to vary - Filing of - Extension of time - A father and mother and their two sons, "Barry" and "Alan", were registered owners of a half-section of farming land as tenants in common, each holding a one quarter undivided interest - In May 2002, the father and mother executed an agreement for sale of their interests in favour of Barry - The transfer of land was not completed - The father died in 2006 and the mother died in 2008 - Barry brought an action to enforce the agreement for sale, seeking specific performance or damages in lieu - The trial court allowed the action, awarding damages in lieu - Barry appealed, seeking specific performance - The executrix of the estates applied for an extension of time for cross-appealing - The Saskatchewan Court of Appeal, per Ottenbreit, J.A., dismissed the application - The court rejected the executrix's argument that the test for enlargement of time on a cross-appeal was not as stringent as the test for an extension of time for other filings - The executrix's case was not one of varying an existing claim or appeal, but sought to challenge the original judgment and broaden the appeal beyond the narrow point of whether specific performance should be awarded - The test for an extension of time had not been met - The delay of 16 months was substantial and without a reasonable explanation - There was no bona fide intention to appeal within the appeal period - The trial judge found as a fact that the parents intended to gift the land to Barry - To upset that finding, the executrix would have to argue palpable and overriding error - The case was a weak one and likely destined to fail.

Cases Noticed:

Kodellas and Tripolis Foods Ltd. v. Human Rights Commission (Sask.), Wahn and Glute, [1987] 3 W.W.R. 558; 56 Sask.R. 149 (C.A.), refd to. [para. 6].

Darichuk Estate, Re (1988), 70 Sask.R. 215 (C.A.), refd to. [para. 7].

Dutchak v. Dutchak (2009), 337 Sask.R. 46; 464 W.A.C. 46; 2009 SKCA 89, refd to. [para. 10].

Royal Bank of Canada v. G.M. Homes Inc. et al. (1982), 25 Sask.R. 6 (C.A.), refd to. [para. 11].

Treeland Motor Inn Ltd. v. Western Assurance Co. et al. (1983), 30 Sask.R. 154; 4 D.L.R.(4th) 370 (C.A.), refd to. [para. 19].

Counsel:

Karl P. Bazin, Q.C., for the respondent/appellant;

William J. Herle, for the applicant/respondent.

This application was heard in Chambers on June 23, 2010, by Ottenbreit, J.A., of the Saskatchewan Court of Appeal, who delivered the following judgment on July 14, 2010.