Does the doctrine of unconscionable procurement apply in Saskatchewan?

The doctrine of unconscionable procurement was recently considered by the Court of King’s Bench for Saskatchewan in Ruszkowski v Concentra Trust, 2025 SKKB 164 [Ruszkowski]. While unconscionable procurement had been considered by courts in other provinces prior to Ruszkowski, Ruszkowski appears to be the first time a Saskatchewan court has considered the doctrine in a published decision.

The Court in Ruszkowski applied the doctrine of unconscionable procurement as an alternative basis for refusing to enforce contacts entered into by a now deceased individual for the sale of farmland at a fraction of its market value. The Court’s willingness to recognize and apply the doctrine of unconscionable procurement could be of significance for litigants seeking to either impugn or defend inter vivos gifts or other wealth transfers. This blog post discusses, at a high level, the doctrine of unconscionable procurement.

What is the doctrine of unconscionable procurement?

The doctrine of “unconscionable procurement is an additional equitable doctrine available to challenge the validity of an inter vivos gift” (Buffa v Giacomelli, 2025 ONSC 4024 [Buffa] at para 21). Inter vivos gifts are transfers of property made between living people. Inter vivos gifts may be contrasted with gifts that take effect after a person dies.

Unconscionable procurement has been described as “an old and quite obscure doctrine” (Barnes-Morrison v Kolias, 2025 BCSC 715 [Barnes-Morrison] at para 86). The cornerstone of the doctrine “is that it is unconscionable for someone to be instrumental in procuring a gift to themselves from a donor who does not fully appreciate his or her actions even in the absence of undue influence” (Barnes-Morrison at para 86).

To invoke the doctrine of unconscionable procurement, the party attacking the inter vivos transfer bears the onus of demonstrating that the party that transferred the property “did not have a conscionable understanding of the transaction” (Buffa at para 33). To establish the presumption of a lack of understanding on the part of the transferor, the applicant must demonstrate two things:

1. That the party that received the property “obtained a significant benefit from another [by] gift or other voluntary inter vivos wealth transfer”; and
2. The recipient of the property “was actively involved in procuring or arranging the transfer from the maker” (Buffa at para 33).

If these two criteria are satisfied, there is a presumption that the transferor “did not truly understand the actions they were taking in completing these transfers” (Buffa at para 33). The party seeking to uphold the transaction (typically the party that received the property in question) then bears the onus of proving that the transferor “made the gift voluntarily and deliberately” (Buffa at para 33). Failure to discharge this onus will result in the transaction at issue being set aside.

Treatment of the doctrine of unconscionable procurement by courts in Ontario and British Columbia

While the requirements for demonstrating unconscionable procurement appear relatively straightforward, the existence of the doctrine has been questioned by courts in Ontario and British Columbia.

Treatment of the doctrine of unconscionable procurement in Ontario

In Buffa, the Ontario Superior Court of Justice noted—while referencing Gefen Estate v Gefen, 2022 ONCA 174, 161 OR (3d) 267 [Gefen Estate] and The Estate of William Robert Waters v Gillian Henry et al., 2024 ONSC 4190, 95 ETR (4th) 161 [Waters Estate]—that “[t]here is much debate as to whether the doctrine of unconscionable procurement is a valid equitable doctrine to challenge the validity of an inter vivos gift” (Buffa at para 31). The Court went on to observe that “[d]espite its unstable status, the doctrine of unconscionable procurement is nonetheless available to the parties” (Buffa at para 32).

In Gefen Estate, a case from the Ontario Court of Appeal, the Court declined to consider the merits of the doctrine of unconscionable procurement “[i]n the absence of full legal argument on the existence and desirability” of the doctrine: Gefen Estate at para 61. The Court indicated that it should not be taken as having approved of or rejected the existence of unconscionable procurement in Ontario: Gefen Estate at para 61.

In Waters Estate, the Court found the doctrine of unconscionable procurement inapplicable to the circumstances before it: see Waters Estate at para 360. The Court expressed no comment on “whether the doctrine ought to be part of the law of Ontario, or whether it conflicts with or adds anything to the other legal doctrines in this case, such as the law of resulting trusts and the law of gifts” (Waters Estate at para 359).

Buffa, Waters Estate, and Gefen Estate make clear that the status of the doctrine of unconscionable procurement in Ontario remains unsettled. However, in Anroop et al. v Naqvi et al., 2025 ONSC 160 [Anroop], the Court considered the doctrine, without commenting on its uncertain status. However, like in Buffa, Waters Estate, and Gefen Estate, the Court in Anroop found the doctrine inapplicable to the circumstances at hand: see Anroop at paras 225–29.

Treatment of the doctrine of unconscionable procurement in British Columbia

Case law from British Columbia discloses the doctrine of unconscionable procurement’s similarly uncertain status in that province.

In Barnes-Morrison, Hardwick J. of the Supreme Court of British Columbia drew from the Court’s earlier decision in Sandwell v Sayers, 2022 BCSC 605 [Sandwell SC], where the Court questioned the existence of the doctrine of unconscionable procurement in British Columbia before determining that the doctrine (if it did apply) could not be applied to the circumstances at hand: see Sandwell SC at paras 50–61. See also Fleischer v Zoltan Elemer Fleischer Alter Ego Trust, 2024 BCSC 2162 at paras 130–31.

In Sandwell v Sayers, 2023 BCCA 147, leave to appeal to the SCC refused, 2023 CanLII 100621 [Sandwell CA], an appeal from the decision in Sandwell SC, the Court determined that the status of the doctrine of unconscionable procurement in British Columbia did not need determination in that case: Sandwell CA at paras 67–78. Sandwell CA is the only published British Columbian appellate decision in which the doctrine is mentioned.

In Barnes-Morrison, the most recent published decision from British Columbia to consider the doctrine of unconscionable procurement, the Court determined that if the doctrine did apply in British Columbia, the test to invoke the doctrine could not be met in the circumstances: Barnes-Morrison at para 94. The Court observed that “the question of whether [the] doctrine of unconscionable procurement applies in British Columbia remains unresolved” (Barnes-Morrison at para 106).

Conclusion on the treatment of the doctrine of unconscionable procurement by courts in other Canadian provinces

The preceding discussion demonstrates that the status of the doctrine of unconscionable procurement remains unclear in both Ontario and British Columbia.

Ruszkowski and the application of the doctrine of unconscionable procurement in Saskatchewan

Despite the uncertainty surrounding the application of unconscionable procurement in other provinces, the Court in Ruszkowski determined that “the doctrine of unconscionable procurement remains valid and is not displaced by other equitable doctrines” (Ruszkowski at para 307).

The Court in Ruszkowski reviewed Waters Estate and Buffa, two cases questioning the application of the doctrine of unconscionable procurement in Ontario, before determining that the doctrine could be applied in the circumstances before the Court in Ruszkowski. The Court described the operation of the doctrine in the following terms in Ruszkowski at para 307:

[307]    … It applies where a party obtains a significant benefit from a gift or inter vivos wealth transfer which was actively procured or arranged by the recipient. However, simply because such an action took place does not mean it is invalid. Rather, once this is proven, the recipient must then demonstrate the gift or transfer was made voluntarily or deliberately.

In Ruszkowski, an elderly widow entered two agreements to sell farmland to the plaintiff, her neighbour, for a fraction of its value. The widow’s litigation guardian advised the neighbour that it would not proceed with the sale, because the agreements appeared to be unconscionable. The neighbour, a farmer who had rented the land for many years, then sought specific performance of the agreements against the widow’s litigation guardian. The widow passed away several years prior to the commencement of trial, but was alive when the plaintiff commenced the action.

The Court determined that the purported sale of the farmland “cannot be seen in any other way” than an inter vivos wealth transfer: Ruszkowski at para 308. It also determined that the “improvident sale was actively procured and arranged by the recipient”, the plaintiff: Ruszkowski at para 308. The agreements purported to sell the farmland to the plaintiff for approximately 14 percent of its actual value: Ruszkowski at para 309.

The plaintiff failed to prove that the transferor had entered into the agreements at issue “voluntarily or deliberately” (Ruszkowski at para 310). The Court indicated that it had “a litany of concerns”, including issues with respect to the transferor’s capacity and her ability to understand the nature and consequences of the transaction at issue: Ruszkowski at para 310. The Court also noted “concerns of unconscionability”, the plaintiff’s lack of transparency, and potential contradiction between the terms of the two agreements: Ruszkowski at para 310.

The Court held that the plaintiff had “not demonstrated the inter vivos transfer of wealth was made voluntarily or deliberately”, and was “satisfied that the doctrine of unconscionable procurement applies” (Ruszkowski at para 311).

In addition to applying the doctrine of unconscionable procurement, the Court in Ruszkowski found that the transferor lacked capacity to enter into the agreements, held that the agreements were unconscionable, could be voided under the defence of non est factum, and were unenforceable for lack of certainty of terms. Accordingly the application of the doctrine of unconscionable procurement was only one of several bases on which the Court refused to give effect to the agreements that the plaintiff sought to enforce. The existence of these alternative bases, and the Court’s limited engagement with the doctrine of unconscionable procurement, may limit the weight of the Court’s willingness to apply the doctrine.

Conclusion

Following Ruszkowski, the doctrine of unconscionable procurement may present an additional basis on which a litigant in Saskatchewan can seek to set aside an inter vivos transfer. It remains to be seen how much traction the doctrine will receive given the existence of other, well-established bases on which inter vivos transfers are commonly impugned.

McDougall Gauley LLP has extensive experience acting in litigation matters, including estate litigation matters. To learn more, please contact a member of our Litigation, Dispute Resolution & Appeals team.