Buye v Fisher, 2024 ABCA 294

Lead counsel responding to the appeal of an interim order which dismissed the appellant’s application to remove an acting attorney. The appeal was adjourned sine die until the pending trial decision was released on the basis that it was inappropriate to determine the appeal at the current time. The Court of Appeal directed that some aspects of the appeal would certainly be moot when the trial decision was released and the entire appeal might be moot. The Court also directed that any future application for relief be directed to the trial justice. Finally, the Court clarified that respondents may argue and the Court may determine mootness at any time and that a separate application to dismiss the appeal under the Court of Appeal Rules is not a requirement before arguing or determining mootness.

 Buye v Fisher, 2024 ABKB 223

Lead counsel successfully resisting an application to remove an attorney on the basis of allegations of: (a) conflict of interest; (b) incapacity; and (c) undue influence.  The Court found insufficient evidence to conclude that the donor lacked mental capacity or was subject to undue influence. The decision to not replace the attorney with a professional trustee was based, in part, on the practical consequences of doing so and the proximity to an upcoming trial.

Duhn Estate, 2022 ABCA 360

Lead counsel responding to the appeal of an order which dismissed the appellant’s application for pre-death financial disclosure of a testator’s estate. The Court of Appeal dismissed the appeal and concurred with the reasoning set out in Johnson v Johnson, emphasizing that the issue at this stage was not about proving the case but whether the claimant should be given tools ordinarily available before being required to present a comprehensive case. The Court determined that the appellant had not met the minimal evidentiary threshold necessary to justify additional disclosure. The Court found no errors in the lower court decision, affirming that the personal representatives acted within their authority from the will to distribute the estate's assets. The Court also agreed with the discretion exercised by the Chamber’s Justice regarding costs and saw no reason to alter the costs awarded.

Duhn Estate, 2021 ABQB 35

Lead counsel successfully resisting an application for pre-death financial disclosure from a testator’s estate. The Honourable Madam Justice K.M. Eidsvik ruled that while personal representatives owe a duty to account for the administration of a testator’s estate, this duty generally pertains to the period after the testator's death. The Court found no sufficient evidentiary basis to warrant an invasion of the testator's privacy rights to examine her pre-death financial affairs. The Court disagreed with the applicants' interpretation of the law regarding the necessity of accounting for pre-death financial transactions and found no evidence of incompetence, undue influence, or unauthorized transactions that would justify further investigation. The decision emphasized the testator's competence, her clear intentions regarding her estate, and her right to privacy. Costs were awarded against the applicants.

• Starratt v. Mamdani, 2017 ABCA 92
• Toyota Tsusho Wheatland Inc v. Encana Corporation, 2016 ABQB 209
• Bohn v. PG&E Corporation, 2013 ABQB 77
• 1164637 Alberta Ltd. v. Terrapin Mortgage Investment Corp., 2012 ABCA 334
• Nexxtep Resources Ltd. v. Talisman Energy Inc., 2012 ABQB 708
• Strategic Financial Corp. v. 1402801 Alberta Ltd., 2012 ABQB 292
• Terrapin Mortgage Investment Corp. v. Acera Developments Inc., 2011 CarswellAlta 2629