In her presentation yesterday at the Canadian Lawyer Webinar: 2024 Key Decisions in Estate Litigation (jointly presented by our firm and WEL Partners), my partner Suzana Popovic-Montag spoke on an interesting case out of Saskatchewan: Levesque v. Klarenbach 2024 SKKB 130.
The case considered a situation in which one daughter of the deceased (“Levesque”) sought source documents related to an accounting from the other daughter (“Klarenbach”) who was appointed under the deceased’s power of attorney. Notably, the deceased, presumably anticipating that Levesque might make things difficult for her sister, stated in the POA that: “in the event of incapacity, no one could request an accounting from his Personal and Property Attorneys.”
As the Court noted: “When Ms. Levesque contacted Ms. Klarenbach on November 9, 2017, demanding an accounting, Ms. Klarenbach refused as she had not been authorized to do so by the Deceased, and as the Deceased was not incapacitated.“
In evaluating whether Levesque had any remedy, the Court considered the principle submission of Levesque that she was entitled to all source documents related to an accounting as of right in accordance with the inherent jurisdiction of the Court to so order.
The Court immediately telegraphed its opinion of this submission: Too often, parties rely on “inherent jurisdiction” to support arguments they cannot otherwise articulate. The inherent jurisdiction of the court is not a panacea. Counsel cannot rely on it to request any remedy not specifically set out in a statute. It primarily relates to procedural matters and can be relied upon when it is required to administer justice.
The Court went on to note:
In Gillespie v Manitoba (Attorney General) (2000), 2000 CanLII 26952 (MB CA), 185 DLR (4th) 214 (Man CA), Twaddle J.A. stated in part at paragraphs 17‑25:
Although many instances can be found in which the inherent jurisdiction of the Queen’s Bench (or equivalent court in other jurisdictions) has been invoked to justify an order, no satisfactory definition of inherent jurisdiction has been enunciated. That is perhaps because inherent jurisdiction has never been conferred on a court expressly, but exists as an auxiliary power to be invoked when necessary for the court “to fulfil itself as a court of law” (to use the words of Master I.H. Jacob, in his article “The Inherent Jurisdiction of the Court” (1970), 23 Curr. Legal Probs. 23 at p. 27)…The inherent jurisdiction of the court is to be used sparingly (Rankin v Rankin,2022 SKCA 32, [2022] 6 WWR 19).
An accounting by a power of attorney is an accounting for the actions of the attorney, not the actions of the grantee. Simply because Ms. Klarenbach was granted power of attorney during the lifetime of the Deceased does not require her to provide extensive disclosure of corporate documents under the control of the Deceased or explanations of business decisions made by the Deceased during his lifetime.…Having reviewed the accounting provided, Ms. Levesque points to no evidence of malfeasance or misappropriation of funds. This request appears to be a fishing expedition based on vague assertions and many assumptions.
As Suzana noted, the takeaway is that counsel must be sure that they have legal support for their position and not see the inherent jurisdiction of the Court as some sort of “catch all” to encompass legal authority for a proposition when none in fact exists.
Thanks for reading,