Semchyshen Estate v. Semchyshen, 2016 SKCA 108

JudgeRichards, C.J.S., Lane and Ryan-Froslie, JJ.A.
CourtCourt of Appeal (Saskatchewan)
Case DateNovember 24, 2015
JurisdictionSaskatchewan
Citations2016 SKCA 108;(2016), 484 Sask.R. 303 (CA)

Semchyshen Estate v. Semchyshen (2016), 484 Sask.R. 303 (CA);

    674 W.A.C. 303

MLB headnote and full text

Temp. Cite: [2016] Sask.R. TBEd. SE.020

Bernadette Semchyshen and the Estate of Peter Semchyshen (appellants/respondents by cross-appeal) v. Raymond Victor Semchyshen and Gail Semchyshen (respondents/appellants by cross-appeal)

(CACV2433; 2016 SKCA 108)

Indexed As: Semchyshen Estate v. Semchyshen

Saskatchewan Court of Appeal

Richards, C.J.S., Lane and Ryan-Froslie, JJ.A.

August 23, 2016.

Summary:

Peter and Bernadette Semchyshen had four children and operated a farm. In 2004, Peter and his eldest son (Raymond) executed a rollover agreement which transferred several sections of land and other depreciable property to Raymond and his wife (defendants). Following Peter's death in 2009, Peter's estate and Bernadette (plaintiffs) claimed that the rollover agreement and land transfers had been made pursuant to an oral agreement between Peter and Raymond, the terms of which were so uncertain as to be unenforceable. The plaintiffs further submitted that the defendants held the land and depreciable property in trust for the plaintiffs pursuant to an express trust or, alternatively, a resulting or constructive trust. Alternatively, the plaintiffs submitted that any oral agreement for the sale of land was void pursuant to s. 4 of the Statute of Frauds.

The Saskatchewan Court of Queen's Bench, in a decision reported at 421 Sask.R. 271, dismissed the plaintiffs' claims respecting the land. The court found that the defendants had been unjustly enriched respecting the depreciable property and ordered the defendants to pay the plaintiffs $12,887. The defendants were also ordered to pay the plaintiffs' costs. The plaintiffs appealed. The defendants cross-appealed the cost award.

The Saskatchewan Court of Appeal dismissed the appeal and the cross-appeal.

Contracts - Topic 1104

Formation of contract - General principles - Oral contracts - Peter and Bernadette Semchyshen had four children and operated a farm - In early 2000, Peter asked his children for financial help and allegedly stated that anyone who helped would be given a deal on the farm in the future - Only the eldest son (Raymond) expressed an interest in farming - Raymond began to buy farm equipment, pay farm accounts and make other payments to Peter and Bernadette - In August 2000, Peter transferred some of his land to himself and Raymond as joint tenants - In 2004, Peter and Raymond executed a rollover agreement which transferred several sections of land to Raymond and his wife (defendants) - At the same time, Peter and Bernadette signed certificates of independent legal advice respecting the rollover agreement - The defendants moved onto the home quarter and Peter and Bernadette moved into a trailer that had been financed by Raymond - The defendants made improvements to the farm totalling $70,000 - In 2005, Raymond began reporting all of the farm income - Peter died in 2009 - Peter's estate and Bernadette (plaintiffs) claimed that the rollover agreement and land transfers had been made pursuant to an oral agreement between Peter and Raymond, the terms of which were so uncertain as to be unenforceable - They submitted that the defendants held the land in trust for the plaintiffs pursuant to a resulting trust - The trial judge held that the Saskatchewan's Torrens system of land registration meant that there could be no resulting trust once the transfer of titles took place and the land was registered in the defendants' names - In any event, the sale of land from Peter to Raymond was pursuant to an oral contract, the terms of which could be determined with sufficient particularity to rebut the presumption of a resulting trust - The Saskatchewan Court of Appeal affirmed the finding that there was a valid oral agreement for sale - Contrary to the plaintiffs' assertion, the judge did not shift the burden of proof to the plaintiffs - See paragraphs 37 to 40.

Contracts - Topic 8163

Statute of Frauds - Contracts within statute - Agreement not to be performed within a year - Requirement of writing - Peter and Bernadette Semchyshen had four children and operated a farm - In early 2000, Peter asked his children for financial help and allegedly stated that anyone who helped would be given a deal on the farm in the future - Only the eldest son (Raymond) expressed an interest in farming - Raymond began to buy farm equipment, pay farm accounts and make other payments to Peter and Bernadette - In August 2000, Peter transferred some of his land to himself and Raymond as joint tenants - In 2004, Peter and Raymond executed a rollover agreement which transferred several sections of land to Raymond and his wife (defendants) - At the same time, Peter and Bernadette signed certificates of independent legal advice respecting the rollover agreement - The defendants moved onto the home quarter and Peter and Bernadette moved into a trailer that had been financed by Raymond - The defendants made improvements to the farm totalling $70,000 - In 2005, Raymond began reporting all of the farm income - Peter died in 2009 - Peter's estate and Bernadette (plaintiffs) claimed that the rollover agreement and land transfers had been made pursuant to an oral agreement between Peter and Raymond, the terms of which were so uncertain as to be unenforceable - They submitted that the defendants held the land in trust for the plaintiffs as a result of an express trust or, alternatively, a resulting trust - The trial judge held that no express trust existed and, even if one existed, s. 7 of the Statute of Frauds would have rendered it void because it was not in writing - The Saskatchewan's Torrens system of land registration meant that there could be no resulting trust once the transfer of titles took place and the land was registered in the defendants' names - In any event, the sale of land from Peter to Raymond was pursuant to an oral contract, the terms of which could be determined with sufficient particularity to rebut the presumption of a resulting trust - The plaintiffs appealed, asserting that the judge erred by imposing the burden of establish a trust on them - They asserted that the defendants bore the burden of establishing that the presumption of resulting trust had been rebutted by an agreement for sale - The Saskatchewan Court of Appeal affirmed the trial judge's decision - See paragraphs 41 to 61.

Courts - Topic 83

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Court of Appeal - The plaintiffs obtained judgment against the defendants for a portion of their claim - The defendants were ordered to pay the plaintiffs' taxable costs - The plaintiffs appealed - The defendants cross-appealed the cost award - The plaintiffs raised a preliminary objection to the cross-appeal, namely, that the defendants had not obtained leave to appeal as required by s. 38 of the Queen's Bench Act - The Saskatchewan Court of Appeal noted a number of decisions of the court in which it was held that where a judge's order for costs was based on a wrong principle, it was unnecessary to obtain leave to appeal - While the court had concerns with that historical approach, it felt bound by it - Therefore, as the trial judge erred in principle in making the costs award, leave to appeal was not required - See paragraphs 73 to 75.

Practice - Topic 7021

Costs - Party and party costs - Entitlement to - Successful party - Exceptions - Conduct - Peter and Bernadette Semchyshen had four children and operated a farm - In 2004, Peter and his eldest son (Raymond) executed a rollover agreement which transferred several sections of land and other depreciable property to Raymond and his wife (defendants) - Following Peter's death in 2009, Peter's estate and Bernadette (plaintiffs) claimed that the rollover agreement and land transfers had been made pursuant to an oral agreement between Peter and Raymond, the terms of which were so uncertain as to be unenforceable - The plaintiffs further submitted that the defendants held the land and depreciable property in trust for the plaintiffs pursuant to a resulting or constructive trust - The trial judge dismissed the plaintiffs' claims respecting the land - However, the judge held that the defendants had been unjustly enriched respecting the depreciable property and ordered the defendants to pay the plaintiffs a monetary award - He also ordered the defendants to pay the plaintiffs' taxable costs of the action - Although the plaintiffs had been only partially successful, Raymond could have taken actions that would have avoided the need for a trial - When the rollover agreement was executed, legal counsel had advised Raymond to have an accountant provide advice and instructions - He was also advised to sign a promissory note to Peter respecting the amount owing and that the note be forgiven in Peter's will - If Raymond had exercised either of those options, the agreement between Peter and Raymond would have been fully documented and Bernadette would not have had any doubts as to what had been agreed to or whether the agreement had been complied with - The Saskatchewan Court of Appeal held that the judge, in awarding costs against the defendants, overlooked the fact that Peter could have taken the same steps - Raymond had no control over Peter's will and could not carry out the lawyer's suggestion respecting a promissory note without Peter's agreement and acquiescence - Further, if blame was to be cast on Raymond for failing to act, it also had to be cast on Bernadette for commencing the action - Litigation was often grounded in poor choices by one or both parties, though such conduct did not usually ground an award for costs - Generally, costs followed the cause - The plaintiffs were successful at trial, though that success was relatively minor in the context of their overall claim - There was no reason not to award the plaintiffs their costs - Even though the judge erred in principle, the error did not affect the correctness of his ultimate cost award - See paragraphs 66 to 78.

Practice - Topic 8298

Costs - Appeals - Appeals from order granting or denying costs - Requirement of leave to appeal - [See Courts - Topic 83 ].

Practice - Topic 7030

Costs - Party and party costs - Entitlement to - Where success or fault divided - [See Practice - Topic 7021 ].

Real Property - Topic 8024

Title - Registration of instruments, etc. - Land titles system - Certificate of title - Reliance on issue of - [See Contracts - Topic 8163 ].

Restitution - Topic 62

Unjust enrichment - General - What constitutes - Peter and Bernadette Semchyshen had four children and operated a farm - In 2004, Peter and his eldest son (Raymond) executed a rollover agreement which transferred several sections of land and other depreciable property (farm equipment and buildings) to Raymond and his wife (defendants) - Peter died in 2009 - Peter's estate and Bernadette (plaintiffs) claimed that the defendants held the land pursuant to a constructive trust based on the doctrine of unjust enrichment - The trial judge concluded that the doctrine of unjust enrichment did not apply because the agreement for sale provided a juristic reason for any enrichment of the defendants with respect to the land - The plaintiffs appealed, asserting that the trial judge erred in concluding that the doctrine of unjust enrichment did not apply - The Saskatchewan Court of Appeal dismissed the appeal - See paragraphs 62 to 64.

Restitution - Topic 64

Unjust enrichment - General - Juristic reason for enrichment - [See Restitution - Topic 62 ].

Sale of Land - Topic 805

The contract - General - Agreement for sale - What constitutes - [See Contracts - Topic 1104 ].

Trusts - Topic 1907

Resulting trusts - General principles - Circumstances when not imposed - [See Contracts - Topic 8163 ].

Trusts - Topic 2310

Constructive trusts - General principles - Circumstances when not imposed - [See Restitution - Topic 62 ].

Trusts - Topic 2346

Constructive trusts - Basis for imposition - Unjust enrichment - [See Restitution - Topic 62 ].

Counsel:

Angela Eagle, for the appellants;

Nolan Dooley, for the respondents.

This appeal and cross-appeal were heard on November 24, 2015, by Richards, C.J.S., Lane and Ryan-Froslie, JJ.A., of the Saskatchewan Court of Appeal. Ryan-Froslie, J.A., delivered the following judgment for the court on August 23, 2016.

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26 practice notes
  • Digest: Gordon v Nielson, 2018 SKQB 207
    • Canada
    • Saskatchewan Law Society Case Digests
    • July 18, 2019
    ...v Gowling (2003), 2002 CanLII 45128, 223 DLR (4th) 210 Sagl v Sagl (1997), 1997 CanLII 12248, 31 RFL (4th) 405 Semchyshen v Semchyshen, 2016 SKCA 108, 484 Sask R 303 Stein v Stein, 2008 SCC 35, [2008] 2 SCR 263, 294 DLR (4th) 251, [2008] 7 WWR 385, 57 RFL (6th) 241, 79 BCLR (4th) 1 Tauber v......
  • Peterson v Peterson, 2019 SKCA 76
    • Canada
    • Court of Appeal (Saskatchewan)
    • August 7, 2019
    ...and the error would have affected the result: Housen v Nikolaisen, 2002 SCC 33 at para 107, [2002] 2 SCR 235; Semchyshen v Semchyshen, 2016 SKCA 108 at paras 29–30, 402 DLR (4th) [29] In my view, the trial judge’s comments about Lucas’s evidence at paragraph 71 of the Trial Decision are sup......
  • HEEBNER v. HEEBNER, 2017 SKQB 343
    • Canada
    • Court of Queen's Bench of Saskatchewan (Canada)
    • November 16, 2017
    ...Trucking Ltd., 2013 SCC 33, [2013] 2 SCR 438, and the subsequent decision of the Saskatchewan Court of Appeal in Semchyshen v Semchyshen, 2016 SKCA 108, 484 Sask R 303, the applicants herein maintain, in the first instance, that the circumstances give rise to the presumption that the respon......
  • Digest: Munday v Deshwar, 2018 SKQB 208
    • Canada
    • Saskatchewan Law Society Case Digests
    • July 18, 2018
    ...[1992] 1 WWR 673 Picavet v Clute, 2012 ONSC 2221, 22 RPR (5th) 72 Sadaka v Saleh, 2011 SKQB 416, 386 Sask R 128 Semchyshen v Semchyshen, 2016 SKCA 108, 484 Sask R 303 Suffern v Winterhalt Farms Ltd., 2001 SKQB 305, 107 ACWS (3d) 910 Tether v Tether, 2008 SKCA 126, 314 Sask R 121 Von Hatzfel......
  • Request a trial to view additional results
20 cases
  • Peterson v Peterson, 2019 SKCA 76
    • Canada
    • Court of Appeal (Saskatchewan)
    • August 7, 2019
    ...and the error would have affected the result: Housen v Nikolaisen, 2002 SCC 33 at para 107, [2002] 2 SCR 235; Semchyshen v Semchyshen, 2016 SKCA 108 at paras 29–30, 402 DLR (4th) [29] In my view, the trial judge’s comments about Lucas’s evidence at paragraph 71 of the Trial Decision are sup......
  • HEEBNER v. HEEBNER, 2017 SKQB 343
    • Canada
    • Court of Queen's Bench of Saskatchewan (Canada)
    • November 16, 2017
    ...Trucking Ltd., 2013 SCC 33, [2013] 2 SCR 438, and the subsequent decision of the Saskatchewan Court of Appeal in Semchyshen v Semchyshen, 2016 SKCA 108, 484 Sask R 303, the applicants herein maintain, in the first instance, that the circumstances give rise to the presumption that the respon......
  • Mitchell v Pytel,
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • May 21, 2021
    ...and the essential terms of that contract can be determined with a reasonable degree of certainty:” Semchyshen v Semchyshen, 2016 SKCA 108, Ryan-Froslie JA at para 37. [250]     I have taken into account Lord Wright’s opinion in Hillas & Co Ltd v Arcos (......
  • Patel v Saskatchewan Health Authority,
    • Canada
    • Court of Appeal (Saskatchewan)
    • August 31, 2021
    ...in principle (see: Holmes v Jastek Master Builder 2004 Inc., 2017 SKCA 50 at para 9, 11 CPC (8th) 293; Semchyshen v Semchyshen, 2016 SKCA 108, 402 DLR (4th) 623 [Semchyshen]; University of Saskatchewan v Fireman’s Fund Insurance Co. of Canada (1998), 172 Sask R 305 (CA) at ......
  • Request a trial to view additional results
2 books & journal articles
  • Digest: Gordon v Nielson, 2018 SKQB 207
    • Canada
    • Saskatchewan Law Society Case Digests
    • July 18, 2019
    ...v Gowling (2003), 2002 CanLII 45128, 223 DLR (4th) 210 Sagl v Sagl (1997), 1997 CanLII 12248, 31 RFL (4th) 405 Semchyshen v Semchyshen, 2016 SKCA 108, 484 Sask R 303 Stein v Stein, 2008 SCC 35, [2008] 2 SCR 263, 294 DLR (4th) 251, [2008] 7 WWR 385, 57 RFL (6th) 241, 79 BCLR (4th) 1 Tauber v......
  • Digest: Munday v Deshwar, 2018 SKQB 208
    • Canada
    • Saskatchewan Law Society Case Digests
    • July 18, 2018
    ...[1992] 1 WWR 673 Picavet v Clute, 2012 ONSC 2221, 22 RPR (5th) 72 Sadaka v Saleh, 2011 SKQB 416, 386 Sask R 128 Semchyshen v Semchyshen, 2016 SKCA 108, 484 Sask R 303 Suffern v Winterhalt Farms Ltd., 2001 SKQB 305, 107 ACWS (3d) 910 Tether v Tether, 2008 SKCA 126, 314 Sask R 121 Von Hatzfel......

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