The recent Saskatchewan Court of Appeal decision in Miller v Miller Estate, 2024 SKCA 70, confronted the issue of when a party, who seeks to appeal a decision made by a Chambers judge, first requires leave to appeal.

For context, in order to appeal certain decisions to the Court of Appeal, a party must first obtain leave to appeal. To obtain leave, this means that a party must first convince the Court of Appeal that a proposed appeal has enough potential merit, and importance, to justify consuming the resources of an appeal.

In Miller, a party wished to appeal an order which had held that a disputed will should be set down for trial. The Court of Appeal in Miller held that such an appeal first required leave to appeal. As the proposed appellant had not first obtained such leave to appeal, the Court of Appeal quashed the proposed appeal.

Background:

The background of Miller involved the below facts:

1. This dispute arose out of a will challenge, brought in relation to the Estate of Sharon Miller (“Estate”);
2. Sharon passed away in April of 2020. At the time of her death, she was divorced and had three adult sons, Darren, Troy, and Brad;
3. Sharon had a will, which had been executed in November of 2017 (“Will”). Prior to making her will, Sharon had experienced some health difficulties; she had been diagnosed with cancer in 2016, and she had suffered a stroke in July of 2017;
4. The Will appointed Troy and Brad as her executors. It also provided for Darren to receive an outsize portion of her Estate, as Darren would receive $120,000 and all of Sharon’s shares in a certain privately held corporation, while the residue of the Estate would be divided equally between Troy and Brad;
5. After Sharon’s passing, Troy and Brad renounced their executorship, and Darren applied to be appointed as administrator of the Estate;
6. Brad accepted the validity of the Will. Troy did not. Troy took the view that Sharon had lacked testamentary capacity at the time she executed the Will, due to the lingering effects of the stroke, and that she had been improperly influenced to leave Darren a disproportionately large share of her property. As such, Troy alleged that the Will was invalid;
7. Accordingly, Troy filed an application, seeking an order directing that the Will be proven in solemn form;
8. Solemn form refers to a more onerous process for determining if a Will is valid. The process of solemn form is used in cases of disputed wills, where the Court finds that there exists a genuine issue, of capacity or coercion, which requires a trial to resolve. A trial will permit each side to cross-examine each other, and test the evidence. For the vast majority of wills, which are not disputed, they are validated by unopposed probate applications, filed with the Court;
9. 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. If a Court finds that the challenger has raised a genuine issue (stage 1), the Court will order (for stage 2) that a trial be held to actually determine credibility and make final rulings on whether the specific will is valid;
10. Thus, at the first stage, Troy had to prove that there existed a genuine issue to be tried in relation to the Will. A Court of King’s Bench (“Chambers judge”) granted Troy’s application and directed that the Will be set down for trial, to determine if the Will was valid (“Chambers Decision”). The questions to be determined at trial, were the below:

1. Whether, at the time of the execution of the Will, Sharon had testamentary capacity; and
2. Whether, at the time of the execution of the Will, Sharon was subject to undue influence;

11. Darren, in his capacity as administrator ad litem for the Estate, appealed from the Decision.
12. The Estate (i.e. Darren) did not first seek leave to appeal from the Court of Appeal;
13. As a result, Troy later applied to quash the appeal, taking the position that:

1. The Estate first needed to obtain leave from the Court of Appeal, in order to appeal the decision of the Chambers judge; and
2. The Estate had not first obtained leave, and thus the appeal should be quashed.

Issue:

There were two issues before the Court of Appeal:

1. Issue 1: Was the Chambers Decision interlocutory and, as such, the Estate required leave in order to appeal it?
2. Issue 2: If the Estate did need leave, should the Court of Appeal grant leave to the Estate retroactively?

Decision of the Court of Appeal:

Issue 1: Had the Estate been required to first obtain leave to appeal?

Appeals are creatures of statute. The right to appeal exists only where it is expressly provided by the governing statutory regime. The law provides that if a decision of the Court of King’s Bench decision is interlocutory, and not final, then an appellant needs to first obtain leave in order to appeal it.

This raises the question – how do you identify whether a decision is interlocutory, as compared to final? The Court of Appeal referred to prior decisions, and held that an “interlocutory” decision is one that does not decide the central issue in the proceeding, or finally determine the substantive merits of the dispute. In contrast, a “final” decision is one that does determine the rights of the parties in a final and binding way.

The Court held that the Chambers Decision was interlocutory, because it did not determine the substantive merits of the central matter at issue in the proceeding – the validity of the Will.

Rather, the Chambers Decision made a determination that merely set the stage for the future resolution of that issue.

Thus, as the Chambers Decision was interlocutory, that meant that the Estate should have first obtained leave to appeal.

Issue 2: Should leave to appeal be granted retroactively?

The Court next turned to determine if it should grant leave to appeal retroactively, or, as it is called, nunc pro tunc.

The Court determined that, to exercise this power, the Court must determine if the proposed appeal met the below two considerations:

1. First: Was the proposed appeal of sufficient merit to warrant the attention of the Court of Appeal?
2. Second: Was the proposed appeal of sufficient importance to the proceedings before the court, or to the field of practice or the state of the law, or to the administration of justice generally, to warrant determination by the Court of Appeal?

The Court in Miller held that the proposed appeal did not meet the test for a grant of leave, under the applicable test. The Court held that the proposed appeal had cleared the “merit” factor of the above test. The proposed appeal was not frivolous or vexatious.

However, on the second factor, the Court held that the matter at hand raised no new, controversial, or unusual issue of practice. The law concerning the test to order that a will be proven in solemn form was already well-settled, and the proposed appeal raised nothing new or uncertain in that regard. The Court further held that this proposed appeal did not have broader implications that transcended its particular circumstances.

Conclusion:

As a result, the Court of Appeal quashed the appeal brought by the Estate, on the basis that the Estate had failed to first obtain leave to appeal. Troy was awarded $2,000 in legal costs, payable by the Estate. As a result, the Estate was unable to pursue its appeal of the Chambers Decision.

The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations.