Stecyk v. Smysniuk et al., 2015 SKCA 54

• Judge: Ottenbreit, Caldwell and Whitmore, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: September 16, 2014
• Jurisdiction: Saskatchewan
• Citations: 2015 SKCA 54;(2015), 460 Sask.R. 38 (CA)

Stecyk v. Smysniuk (2015), 460 Sask.R. 38 (CA);

    639 W.A.C. 38

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. MY.050

Stanley Roy Smysniuk and John Ivanechko (appellants/defendants) v. Alan Stecyk (respondent/plaintiff) and Roy Smysniuk, Alroy Oilfield Construction Incorporated, All-Roy Oilfield Contractors Corporation (cross-appellants/respondents/defendants)

(CACV2432; 2015 SKCA 54)

Indexed As: Stecyk v. Smysniuk et al.

Saskatchewan Court of Appeal

Ottenbreit, Caldwell and Whitmore, JJ.A.

May 19, 2015.

Summary:

The plaintiff and the defendant formed a partnership in 1994, which was incorporated in 1996. The defendant managed the corporation. In 2000, wanting to leave the corporation, the plaintiff asked the defendant to buy out his share. They could not agree on a value. The plaintiff left. The defendant immediately formed a new corporation and, with the assistance of two others who were co-defendants, transferred all of the old corporation's assets, both directly and indirectly, to the new corporation. The plaintiff sued.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2013), 422 Sask.R. 175, having determined that the transfers by the defendant in late 2000 and 2001 were fraudulent and the result of a conspiracy between the defendant and the two other co-defendants to deprive the plaintiff of his rightful share of the original corporation, awarded the plaintiff damages as follows: (1) against the defendant and the old and new corporations: $796,796, representing the plaintiff's share of the old corporation as of April 2000 ($360,000), a promissory note and damages in lieu of interest ($350,000); (2) against the first co-conspirator: $275,000, representing the value of the assets that he assisted in fraudulently conveying ($153,545) plus damages in lieu of interest ($121,455); and (3) against the second co-conspirator: $150,000, representing the value of the assets that he assisted in fraudulently conveying ($87,100) plus damages in lieu of interest ($62,900). The plaintiff was awarded solicitor and client costs including all disbursements. The court declared that each of the claims fell within ss. 178(1)(c) and 178(1)(e) of the Bankruptcy and Insolvency Act and were not to be released by any subsequent order of discharge from bankruptcy. The first co-conspirator and the second co-conspirator appealed. The defendant and the old and new corporations cross-appealed. Execution of the judgment was automatically stayed under rule 15(1) of the Court of Appeal Rules. The plaintiff applied to lift the stay and for orders (i) requiring the defendants to pay into court the amounts awarded by the trial judge; (ii) requiring the Registrar of Titles to remove a lock placed on the title to certain land owned by one of the defendant corporations; (iii) requiring the defendants to post security for the judgment amount and for costs of the appeal; and (iv) designating the appeal an "expedited appeal" under rule 43.

The Saskatchewan Court of Appeal, per Caldwell, J.A., in a decision reported at (2013), 423 Sask.R. 259; 588 W.A.C. 259, allowed the application in part. The stay of execution was lifted, subject to a number of conditions. The remainder of the application was dismissed.

The Saskatchewan Court of Appeal allowed the appeal in part and the cross-appeal in part. The judgment in favour of the plaintiff of $796,796 was replaced with a judgment of $402,530.04 as against all of the defendants on a joint and several basis with the first co-conspirator's maximum joint and several liability being fixed at $153,545 and the second co-conspirator's maximum joint and several liability being fixed at $87,100. The awards regarding the promissory note, damages in lieu of interest and solicitor and client costs were set aside. The plaintiff was awarded prejudgment interest reduced by 75% to account for delay in bringing the matter to trial and costs on a party and party basis. The defendant and the old and new corporations were awarded costs of the appeal of $2,500 as were the first and second co-conspirators.

Barristers and Solicitors - Topic 852

Duty to court - Liability for costs - For causing delay or costs to be incurred without reasonable cause - Stecyk and Smysniuk formed a partnership in 1994, which was incorporated as "Alroy" in 1996 - Stecyk held 49% of Alroy and Smysniuk, who managed the corporation, held 51% - In 2000, Stecyk asked Smysniuk to buy out his share - They could not agree on a value - Stecyk left - Smysniuk immediately formed a new corporation "All-Roy" and, with the assistance of Smysniuk's brother Stanley and Ivanechko, who were co-defendants, transferred all of Alroy's assets to All-Roy - Acton, J., having determined that the transfers were fraudulent and the result of a conspiracy between Smysniuk, Stanley and Ivanechko to deprive Stecyk of his rightful share of Alroy, awarded Stecyk damages - On the defendants' appeal, Stecyk asked the court to award personal costs of the appeal against Gibbings, who was counsel for Smysniuk, Alroy and All-Roy due to the time that was required to prepare a response to their factum - The Saskatchewan Court of Appeal denied the request for personal costs against Gibbings - Where, as here, a judgment under appeal contained less detailed findings of fact or the findings were susceptible to challenge, an appellant generally sought to provide context and background - See paragraphs 165 to 169.

Company Law - Topic 9710

Actions against corporations and directors - General - Conspiracy - Stecyk and Smysniuk formed a partnership in 1994, which was incorporated as "Alroy" in 1996 - Stecyk held 49% of Alroy and Smysniuk, who managed the corporation, held 51% - In 2000, Stecyk asked Smysniuk to buy out his share - They could not agree on a value - Stecyk left - Smysniuk immediately formed a new corporation "All-Roy" and, with the assistance of Smysniuk's brother Stanley and Ivanechko, who were co-defendants, transferred all of Alroy's assets to All-Roy - Acton, J., having determined that the transfers were fraudulent and the result of a conspiracy between Smysniuk, Stanley and Ivanechko to deprive Stecyk of his rightful share of Alroy, awarded Stecyk damages - On appeal, Stanley and Ivanechko asserted that Acton, J., had erred in finding them liable under the tort of conspiracy - The Saskatchewan Court of Appeal rejected this ground of appeal - While Acton, J., had failed to fully state his obvious conclusion that Stanley and Ivanechko knew that their participation in the transactions would deprive Stecyk of his interest in Alroy, the flaw in the reasons was typographical or inadvertent and did not give the court a reason to intervene - There was a clear basis on the record for rendering judgment against Stanley and Ivanechko under the tort of conspiracy - Nor was there any palpable or overriding error in Acton, J.'s credibility assessment such as would permit appellate intervention - See paragraphs 57 to 65.

Courts - Topic 561

Judges - Powers - To make order not requested - [See Practice - Topic 5652 ].

Courts - Topic 562

Judges - Powers - To grant relief notwithstanding pleadings - [See first Practice - Topic 1458 ].

Courts - Topic 583

Judges - Duties - Re reasons for decisions - Stecyk and Smysniuk formed a partnership in 1994, which was incorporated as "Alroy" in 1996 - Stecyk held 49% of Alroy and Smysniuk, who managed the corporation, held 51% - In 2000, Stecyk asked Smysniuk to buy out his share - They could not agree on a value - Stecyk left - Smysniuk immediately formed a new corporation "All-Roy" and, with the assistance of Smysniuk's brother Stanley and Ivanechko, who were co-defendants, transferred all of Alroy's assets to All-Roy - Acton, J., having determined that the transfers were fraudulent and the result of a conspiracy between Smysniuk, Stanley and Ivanechko to deprive Stecyk of his rightful share of Alroy, awarded Stecyk damages - On appeal, Stanley and Ivanechko asserted that Acton, J., had erred by failing to state adequate reasons for his assessments of witness credibility - The Saskatchewan Court of Appeal rejected this ground of appeal, stating, "... on the record before the Court, I am not persuaded the judge's ultimate decision should be overturned merely because he failed to discuss some collateral aspects of the case. As can be seen, the judge had no positive duty to demonstrate in his reasons that he had completely appreciated each aspect of relevant evidence. And, in my view, the record, including the reasons for judgment, does not disclose a lack of appreciation of relevant evidence or a complete disregard of relevant evidence such that the matter calls out for appellate intervention on the basis that the ultimate decision is not one that he could reasonably have reached." - See paragraphs 75 to 81.

Damages - Topic 510

Limits of compensatory damages - General - Prohibition against double recovery - Stecyk and Smysniuk formed a partnership in 1994, which was incorporated as "Alroy" in 1996 - Stecyk held 49% of Alroy and Smysniuk, who managed the corporation, held 51% - In 2000, Stecyk asked Smysniuk to buy out his share - They could not agree on a value - Stecyk left - Smysniuk immediately formed a new corporation "All-Roy" and, with the assistance of Smysniuk's brother Stanley and Ivanechko, who were co-defendants, transferred all of Alroy's assets to All-Roy - Acton, J., having determined that the transfers were fraudulent and the result of a conspiracy between Smysniuk, Stanley and Ivanechko to deprive Stecyk of his rightful share of Alroy, awarded Stecyk damages - On appeal, Stanley and Ivanechko asserted that Acton, J., had erred by making separate awards of damages against them regarding assets that had been assets of Alroy and for which damages had been awarded against Smysniuk - The Saskatchewan Court of Appeal agreed that Smysniuk had been "double compensated" regarding some of the equipment that had been transferred to All-Roy - The global damages award was "borne of an error in principle and palpably incorrect" - This compelled a reassessment of damages - Stanley and Ivanechko's several liability to Stecyk was capped at the value of the equipment each had wrongfully diverted from Alroy - In this way, Stecyk would be entitled to receive the whole of, but no more than, that to which he was entitled, but the liability was shared by each responsible person in rough proportion to their respective fault - See paragraphs 38 to 46.

Evidence - Topic 102

Degree, standard or burden of proof - Standard or degree of proof - Proof in civil cases - Stecyk and Smysniuk formed a partnership in 1994, which was incorporated as "Alroy" in 1996 - Stecyk held 49% of Alroy and Smysniuk, who managed the corporation, held 51% - In 2000, Stecyk asked Smysniuk to buy out his share - They could not agree on a value - Stecyk left - Smysniuk immediately formed a new corporation "All-Roy" and, with the assistance of Smysniuk's brother Stanley and Ivanechko, who were co-defendants, transferred all of Alroy's assets to All-Roy - Acton, J., having determined that the transfers were fraudulent and the result of a conspiracy between Smysniuk, Stanley and Ivanechko to deprive Stecyk of his rightful share of Alroy, awarded Stecyk damages - On appeal, Smysniuk, Alroy and All-Roy asserted that Acton, J., had erred by failing to hold Stecyk to the appropriate standard of proof and in finding that he had met the burden of proof - The Saskatchewan Court of Appeal rejected this ground of appeal - Nothing on the record demonstrated that Acton, J., held Stecyk to a lesser standard than proof on a balance of probabilities - The standard was met when a preponderance of evidence supported the factual conclusion proposed by the person who bore the burden of proof - Acton, J., was obviously satisfied that the evidence before him was sufficiently clear, convincing and cogent to satisfy the balance of probabilities test - See paragraphs 98 to 103.

Evidence - Topic 128

Degree, standard or burden of proof - Burden of proof - Balance of probabilities - [See Evidence - Topic 102 ].

Evidence - Topic 465

Functions of counsel, judge and jury - Acceptance of opinion evidence - [See Evidence - Topic 7000.4 ].

Evidence - Topic 466

Functions of counsel, judge and jury - Acceptance of evidence - Stecyk and Smysniuk formed a partnership in 1994, which was incorporated as "Alroy" in 1996 - Stecyk held 49% of Alroy and Smysniuk, who managed the corporation, held 51% - In 2000, Stecyk asked Smysniuk to buy out his share - They could not agree on a value - Stecyk left - Smysniuk immediately formed a new corporation "All-Roy" and, with the assistance of Smysniuk's brother Stanley and Ivanechko, who were co-defendants, transferred all of Alroy's assets to All-Roy - Acton, J., having determined that the transfers were fraudulent and the result of a conspiracy between Smysniuk, Stanley and Ivanechko to deprive Stecyk of his rightful share of Alroy, awarded Stecyk damages - On appeal, Smysniuk, Alroy and All-Roy asserted that Acton, J., had erred by accepting Stecyk's lay opinion and internet and hearsay evidence (consisting of "drive by" appraisals) as to valuations - The Saskatchewan Court of Appeal rejected this ground of appeal - Acton, J.'s finding that Smysniuk's evidence was wholly unreliable entitled him to prefer Stecyk's evidence of values over Smysniuk's - The drive by appraisals were part of an agreed book of documents - A litigant could not be permitted on appeal to resile from an agreement at trial as to the admissibility of evidence - There was no reversible error in Acton, J.'s conclusion that the appraisals were the most reliable evidence available as to the value of Alroy's real property - Finally, the trustworthiness of the internet evidence fell to be determined by Acton, J. - There was no reversible error in his conclusions - See paragraphs 153 to 163.

Evidence - Topic 508

Presentation of evidence - Consent to admission of - Effect of - [See Evidence - Topic 466 ].

Evidence - Topic 7000.4

Opinion evidence - Expert evidence - General - Admissibility - General - Stecyk and Smysniuk formed a partnership in 1994, which was incorporated as "Alroy" in 1996 - Stecyk held 49% of Alroy and Smysniuk, who managed the corporation, held 51% - In 2000, Stecyk asked Smysniuk to buy out his share - They could not agree on a value - Stecyk left - Smysniuk immediately formed a new corporation "All-Roy" and, with the assistance of Smysniuk's brother Stanley and Ivanechko, who were co-defendants, transferred all of Alroy's assets to All-Roy - Acton, J., having determined that the transfers were fraudulent and the result of a conspiracy between Smysniuk, Stanley and Ivanechko to deprive Stecyk of his rightful share of Alroy, awarded Stecyk damages - On appeal, Smysniuk, Alroy and All-Roy asserted that Acton, J., had erred by accepting Stecyk's expert's valuation of Alroy without a proper foundation being laid for it, particularly regarding normalisations - The Saskatchewan Court of Appeal rejected this ground of appeal - Some of the information on which the expert relied came from Stecyk and was inherently suspect - There was significant documentary evidence and there was also hearsay evidence - The expert directly referred to some of that - Therefore, the opinion was based on some suspect information, some hearsay and other admissible evidence - This did not mean it was inadmissible, but rather went to weight - It was up to Acton, J., to determine the weight of the evidence - Nothing on the record indicated a palpable and overriding error in Acton, J.'s admission of the valuation or in giving some weight to it - See paragraphs 113 to 152.

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - [See Evidence - Topic 7000.4 ].

Fraud and Misrepresentation - Topic 1275

Fraudulent conveyances and preferences - Conveyances and preferences impeachable by creditors or others - Fraudulent intent - [See Fraud and Misrepresentation - Topic 1290 ].

Fraud and Misrepresentation - Topic 1290

Fraudulent conveyances and preferences - Conveyances and preferences impeachable by creditors - Evidence and proof - Stecyk and Smysniuk formed a partnership in 1994, which was incorporated as "Alroy" in 1996 - Stecyk held 49% of Alroy and Smysniuk, who managed the corporation, held 51% - In 2000, Stecyk asked Smysniuk to buy out his share - They could not agree on a value - Stecyk left - Smysniuk immediately formed a new corporation "All-Roy" and, with the assistance of Smysniuk's brother Stanley and Ivanechko, who were co-defendants, transferred all of Alroy's assets to All-Roy - Acton, J., having determined that the transfers were fraudulent and the result of a conspiracy between Smysniuk, Stanley and Ivanechko to deprive Stecyk of his rightful share of Alroy, awarded Stecyk damages - On appeal, Stanley and Ivanechko asserted that Acton, J., had erred by finding them liable to pay damages for fraud - The Saskatchewan Court of Appeal rejected this ground of appeal - Given the circumstances of the transactions in question, the relationships between the parties to them and the "badges of fraud" referred to by Acton, J., there was a prima facie case sufficient for a finding of fraudulent intent to convey assets in the absence of credible evidence to the contrary - While Acton, J., could have been tidier in his reasoning, he was entitled not to believe the evidence of Stanley and Ivanechko to the effect that they were unaware of the troubles between Stecyk and Smysniuk or the evidence that they had given good consideration for the conveyances to them - See paragraphs 66 to 74.

Interest - Topic 5008

Interest as damages (prejudgment interest) - General principles - Prejudgment interest - Entitlement - Stecyk and Smysniuk formed a partnership in 1994, which was incorporated as "Alroy" in 1996 - Stecyk held 49% of Alroy and Smysniuk, who managed the corporation, held 51% - In 2000, Stecyk asked Smysniuk to buy out his share - They could not agree on a value - Stecyk left - Smysniuk immediately formed a new corporation "All-Roy" and, with the assistance of Smysniuk's brother Stanley and Ivanechko, who were co-defendants, transferred all of Alroy's assets to All-Roy - Acton, J., having determined that the transfers were fraudulent and the result of a conspiracy between Smysniuk, Stanley and Ivanechko to deprive Stecyk of his rightful share of Alroy, awarded Stecyk damages - On appeal, Stanley and Ivanechko asserted that Acton, J., had erred by failing to take into account Stecyk's significant delay in bringing the matter to trial when assessing damages in lieu of interest - The Saskatchewan Court of Appeal agreed that there was no adequate explanation for why the matter was not brought to trial in two or three years rather than the 12 years that it actually took - This gave rise to a concern that Stecyk might unduly benefit through an award of prejudgment interest - While Stecyk was entitled to prejudgment interest on his general damages award, the overall award of prejudgment interest was reduced by 75% on account of the delay - See paragraphs 84 to 86.

Interest - Topic 5525

Interest as damages (prejudgment interest) - Bars - Delay - [See Interest - Topic 5008 ].

Practice - Topic 1458

Pleadings - Statement of claim - General - Necessity of claiming damages or relief - Stecyk and Smysniuk formed a partnership in 1994, which was incorporated as "Alroy" in 1996 - Stecyk held 49% of Alroy and Smysniuk, who managed the corporation, held 51% - In 2000, Stecyk asked Smysniuk to buy out his share - They could not agree on a value - Stecyk left - Smysniuk immediately formed a new corporation "All-Roy" and, with the assistance of Smysniuk's brother Stanley and Ivanechko, who were co-defendants, transferred all of Alroy's assets to All-Roy - Acton, J., having determined that the transfers were fraudulent and the result of a conspiracy between Smysniuk, Stanley and Ivanechko to deprive Stecyk of his rightful share of Alroy, awarded Stecyk damages - On appeal, Stanley and Ivanechko asserted that Acton, J., had erred in awarding compensatory damages against them where there had been no claim for compensatory damages - The Saskatchewan Court of Appeal rejected this ground of appeal - Stecyk's pleadings were broad enough to contemplate such an award as against Stanley and Ivanechko, Stecyk had adduced evidence of his damages and the award was not inconsistent with the relief actually claimed - Further, under ss. 29(1) and 66(1)(a) of the Queen's Bench Act, the award was within the court's authority - See paragraphs 28 to 37.

Practice - Topic 1458

Pleadings - Statement of claim - General - Necessity of claiming damages or relief - [See Practice - Topic 5652 ].

Practice - Topic 5652

Judgments and orders - Declaratory judgments - When available - General - Stecyk and Smysniuk formed a partnership in 1994, which was incorporated as "Alroy" in 1996 - Stecyk held 49% of Alroy and Smysniuk, who managed the corporation, held 51% - In 2000, Stecyk asked Smysniuk to buy out his share - They could not agree on a value - Stecyk left - Smysniuk immediately formed a new corporation "All-Roy" and, with the assistance of Smysniuk's brother Stanley and Ivanechko, who were co-defendants, transferred all of Alroy's assets to All-Roy - Acton, J., having determined that the transfers were fraudulent and the result of a conspiracy between Smysniuk, Stanley and Ivanechko to deprive Stecyk of his rightful share of Alroy, awarded Stecyk damages - On appeal, Stanley and Ivanechko asserted that Acton, J., had erred by declaring that Stecyk's claims fell within ss. 178(1)(c) and 178(1)(e) of the Bankruptcy and Insolvency Act and were not to be released by any subsequent order of discharge from bankruptcy - The Saskatchewan Court of Appeal agreed - Stecyk had not claimed such declaratory relief and the issue was not canvassed in argument - The declaration was "easily set aside" - Further, while s. 178(1)(e) might arguably arise at some point, such declaratory relief was premature - The proper course of action, if and when the time came, would be for Stecyk to make an application in any resulting bankruptcy proceedings to have his judgment debt survive the bankruptcy - See paragraphs 87 to 92.

Practice - Topic 6924

Costs - General principles - Duty to provide reasons for cost award - Stecyk and Smysniuk formed a partnership in 1994, which was incorporated as "Alroy" in 1996 - Stecyk held 49% of Alroy and Smysniuk, who managed the corporation, held 51% - In 2000, Stecyk asked Smysniuk to buy out his share - They could not agree on a value - Stecyk left - Smysniuk immediately formed a new corporation "All-Roy" and, with the assistance of Smysniuk's brother Stanley and Ivanechko, who were co-defendants, transferred all of Alroy's assets to All-Roy - Acton, J., having determined that the transfers were fraudulent and the result of a conspiracy between Smysniuk, Stanley and Ivanechko to deprive Stecyk of his rightful share of Alroy, awarded Stecyk damages and solicitor and client costs - On appeal, Stanley and Ivanechko asserted that Acton, J., had erred by awarding Stecyk solicitor and client costs - The Saskatchewan Court of Appeal agreed - While Stecyk had not claimed solicitor and client costs, such an award was within the trial judge's discretion - However, here, Acton, J., had made no mention whatsoever of the defendants' conduct in the litigation - Nor did he say whether or why this was an exceptional case that justified Stecyk's complete indemnification - In the absence of a satisfactory explanation, the award had to be set aside and replaced with an award of party and party costs - See paragraphs 93 to 96.

Practice - Topic 7407

Costs - Solicitor and client costs - General principles - Power to award solicitor and client costs - [See Practice - Topic 6924 ].

Practice - Topic 7451

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - General - [See Practice - Topic 6924 ].

Practice - Topic 8301

Costs - Appeals - Appeals from order granting or denying costs - Variation of order of trial court - [See Practice - Topic 6924 ].

Practice - Topic 8800

Appeals - General principles - Duty of appeal court regarding fact findings by trial judge - Stecyk and Smysniuk formed a partnership in 1994, which was incorporated as "Alroy" in 1996 - Stecyk held 49% of Alroy and Smysniuk, who managed the corporation, held 51% - In 2000, Stecyk asked Smysniuk to buy out his share - They could not agree on a value - Stecyk left - Smysniuk immediately formed a new corporation "All-Roy" and, with the assistance of Smysniuk's brother Stanley and Ivanechko, who were co-defendants, transferred all of Alroy's assets to All-Roy - Acton, J., having determined that the transfers were fraudulent and the result of a conspiracy between Smysniuk, Stanley and Ivanechko to deprive Stecyk of his rightful share of Alroy, awarded Stecyk damages - On appeal, Smysniuk, Alroy and All-Roy asserted that Acton, J., had erred by misapprehending the evidence, particularly the documentary evidence and books and records of Alroy - The Saskatchewan Court of Appeal rejected this ground of appeal - An appellate court was only permitted to interfere with factual findings when the record demonstrated a palpable and overriding error or findings of fact that were clearly wrong, unreasonable or unsupported by the evidence - Given Acton, J.'s adverse findings on Smysniuk's credibility, the record disclosed sufficient evidence to support the findings in question - While certain findings or inferences might seem wrong to the appellants, where there was some evidence to support a finding or inference drawn by a trial judge, the appellate court, as here, had to accept that finding or inference - See paragraphs 104 to 112.

Practice - Topic 8802

Appeals - General principles - Duty of appellate court regarding damage awards by a trial judge - [See Damages - Topic 510 ].

Practice - Topic 8803

Appeals - General principles - Whether trial judge must give reasons for rejecting evidence or for credibility findings - [See Courts - Topic 583 ].

Practice - Topic 8804

Appeals - General principles - Duty of appellate court regarding discretionary orders - [See Practice - Topic 6924 ].

Practice - Topic 8817

Appeals - General principles - Duty of appellate court where trial judge fails to give or gives inadequate reasons for judgment - [See Company Law - Topic 9710 ].

Torts - Topic 5706

Conspiracy - What constitutes - [See Company Law - Topic 9710 ].

Torts - Topic 7280

Joint and concurrent tortfeasors - Consequences of joint liability - Joint and several liability - General - [See Damages - Topic 510 ].

Cases Noticed:

Goldex Mines Ltd. v. Revill (1974), 7 O.R.(2d) 216; 54 D.L.R.(3d) 672 (C.A.), refd to. [para. 23].

Bell and Stewart v. Source Data Control Ltd. (1988), 29 O.A.C. 134; 53 D.L.R.(4th) 580 (C.A.), refd to. [para. 23].

Dome Construction Ltd. v. Solarsystems Industries Ltd. (1987), 56 Sask.R. 319 (C.A.), refd to. [para. 30].

Campbell v. Fleming and Timaeus (1956), 18 W.W.R.(N.S.) 475 (B.C.S.C.), refd to. [para. 30].

Hamilton v. Macdonell (1910), 13 W.L.R. 495 (Man. C.A.), refd to. [para. 30].

Holman v. Knox (1912), 3 D.L.R. 207 (Ont. Div. Ct.), refd to. [para. 30].

Gaughan v. Sharpe (1881), 6 O.A.R. 417 (C.A.), refd to. [para. 30].

Donison v. Donison and Uncle Bill Foundation Inc. (1983), 27 Sask.R. 121 (Q.B.), affd. (1984), 35 Sask.R. 183 (C.A.), refd to. [para. 31].

Woelk v. Halvorson, [1980] 2 S.C.R. 430; 33 N.R. 232; 24 A.R. 620, refd to. [para. 43].

Naylor Group Inc. v. Ellis-Don Construction Ltd., [2001] 2 S.C.R. 943; 277 N.R. 1; 153 O.A.C. 341; 2001 SCC 58, refd to. [para. 43].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 57].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 57].

Hamm v. Metz et al. (2002), 217 Sask.R. 1; 265 W.A.C. 1; 2002 SKCA 11, refd to. [para. 72].

Freeman v. Pope (1870), 5 Ch. App. 538 (C.A.), refd to. [para. 72].

Sun Life Assurance of Canada v. Elliott (1900), 31 S.C.R. 91, refd to. [para. 72].

R. v. A.G., [2000] 1 S.C.R. 439; 252 N.R. 272; 132 O.A.C. 1; 2000 SCC 17, refd to. [para. 76].

R. v. R.P., [2012] 1 S.C.R. 746; 429 N.R. 361; 2012 SCC 22, refd to. [para. 76].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 76].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 77].

Petwa Canada Ltd. v. Logan Stevens Construction (1981) Ltd., [1993] 4 W.W.R. 418; 113 Sask.R. 32; 52 W.A.C. 32 (C.A.), refd to. [para. 84].

Coppola v. Capital Pontiac Buick Cadillac GMC Ltd. (2013), 417 Sask.R. 213; 580 W.A.C. 213; 364 D.L.R.(4th) 351; 2013 SKCA 80, refd to. [para. 84].

B2B Bank v. Batson, 2014 ONSC 6105, refd to. [para. 90].

Hope v. Gourlay (2015), 457 Sask.R. 43; 2015 SKCA 27, refd to. [para. 93].

Siemens et al. v. Bawolin et al., [2002] 11 W.W.R. 246; 219 Sask.R. 282; 272 W.A.C. 282; 2002 SKCA 84, refd to. [para. 94].

Moore v. Moore (2004), 188 Man.R.(2d) 292; 2004 MBQB 202 (Master), refd to. [para. 115].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1, refd to. [para. 147].

Kozak v. Funk, [1996] 1 W.W.R. 107; 136 Sask.R. 12 (Q.B.), refd to. [para. 150].

Abbott and Haliburton Co. Ltd. et al. v. WBLI Chartered Accountants (2015), 470 N.R. 324; 360 N.S.R.(2d) 1; 1135 A.P.R. 1; 2015 SCC 23, refd to. [para. 150].

Saint John (City) v. Irving Oil Co., [1966] S.C.R. 581, refd to. [para. 160].

R. v. Wilband, [1967] S.C.R. 14, refd to. [para. 160].

National Life Assurance Co. v. McCoubrey, [1926] S.C.R. 277, refd to. [para. 168].

Ezrin v. Becker, [1975] 1 S.C.R. 508; 2 N.R. 236, refd to. [para. 168].

Toronto Dominion Bank v. Burgon (1993), 109 Sask.R. 122; 42 W.A.C. 122 (C.A.), refd to. [para. 168].

586903 Saskatchewan Ltd. v. Dube Investments Ltd. (1994), 123 Sask.R. 315; 74 W.A.C. 315 (C.A.), refd to. [para. 168].

Statutes Noticed:

Queen's Bench Act, S.S. 1998, c. Q-1.01, sect. 29(1), sect. 66(1)(a) [para. 34].

Authors and Works Noticed:

Lederman, Sidney N., Bryant, Alan W. and Fuerst, Michelle K., The Law of Evidence in Canada (4th Ed. 2014), §12.202 [para. 160].

Counsel:

Jessie C. Buydens, for the appellants;

R. Ivan Holloway and Patrick Whitehill, for the respondent;

Robert J. Gibbings, Q.C., for the cross-appellants/respondents.

These appeals were heard on September 16, 2014, by Ottenbreit, Caldwell and Whitmore, JJ.A., of the Saskatchewan Court of Appeal. On May 19, 2015, Caldwell, J.A., delivered the following written reasons for judgment for the court.