Stay of Proceedings

    Gerritse v Hospital For Sick Children 2017 ONSC 1859 dealt with an application for a  stay of  proceedings in one court case until the paternity issue in another case was firstly decided. The Court refused the application and cited the law as previously set… Read more

Shutting Down the Frivolous Vexatious Litigant

  Canada v. Olumide 2017 FCA 42 set out a road map on how to rid the court’s back log of the frivolous and vexatious litigant, albeit with ” dignity and respect.”. The Federal Court relied upon s 40 of the Federal Court act but… Read more

Court May Hear Additional Evidence Before Entry of Order

Clayton v British American Securities Ltd ( 1934) 3 WWR 257 ( BCCA) upheld  the discretionary  power of a trial judge to hear additional evidence after judgement was pronounced but before the order was entered .   At the close of a trial judgment was reserved and after… Read more

Parens Patriae Jurisdiction of the Courts

  Re Senini 2016 BCSC 2299 invoked the  the parens patriae  jurisdiction of the courts to declare an adult no  longer incapable of handling her affairs. The parens patriae jurisdiction is  founded on necessity, namely the need for the courts to act for the protection… Read more

Pleading Particulars of Undue Influence

Harder v Harder Estate 2017 BCSC 425 discusses the necessity of pleading sufficient particulars of allegations of undue influence  so that the defendant can meet the claim and not be taken by surprise at trial.   Particulars of Undue Influence   [15]        SCCR 3-7 (18)… Read more

Change of Venue of Trial

      Harder v Harder estate 2017 BCSC 425 discussed the law relating to changing the venue of trial or interlocutory proceedings from where the action was originally commenced to another city.   The defendants in Harder sought an order transferring the proceedings  from Victoria to… Read more

Conflict of Law- “Ordinarily Resident”

  Cresswell v Cresswell Estate 2017 BCSC 178 dealt with a conflict of law situation and held that the jurisdiction of the BC court should be denied for a wills variation action and held that it should properly be filed under Alberta court jurisdiction as… Read more

Passing Over an Executor

Passing over an executor utilizes essentially the same legal criteria as removing an executor except it occurs before the named executor starts to act in the representative capacity.   Re Thommasson Estate 2011 BCSC 481 removed a named  executor who was not a beneficiary but his… Read more

Res Judicata, Cause of Action Estopppel and Merger in Judgement

Wolverton Securities Ltd v Schemel 2009 BCSC 1048 discusses the concepts of res judicata, cause of action estoppel and merger in judgement and states that the concepts are often used interchangeably in various judgments.   The concepts essentially bar a litigant from suing a second… Read more

Civil Fraud

The tort of civil fraud ( as opposed to criminal fraud)  was reviewed by the Supreme Court of Canada in Bruno Appliance and Furniture Inc. v Hyrniak 2014 SCC 8  and concluded there are four elements .   18      The classic statement of the elements… Read more

Prohibiting Lawyers From Acting

  Rubin Estate v Rubin Estate 2017 ONSC 1404  dealt with an application to prohibit a  lawyer from acting for her siblings and mother who were being sued by one daughter.   The lawyer in question had previously given US tax advise on a ” no… Read more

Pleading the Tort of Conspiracy

It occasionally occurs in estate litigation that parties conspire with others to defeat the claims of a party that give rise to a court  pleading of the tort of conspiracy.   For example, I recently had a situation where the executor attempted to sell the… Read more

“Good Conscience” Constructive Trusts

The Ontario Court of Appeal in Moore v Sweet 2017 ONCA 182 discussed the concept of ” good conscience” trusts that had been pronounced by the Supreme Court of Canada in the decision Soulos v. Korkontzillas 1997 2 SCR 217 in rejecting the claim of… Read more

Unjust Enrichment in Common Law Relationships

The Ontario Court of Appeal in Reiter v Hollub 2017 ONCA 186 reviewed the law of unjust enrichment and dismissed a 6 year common law spouse’s claim that she should share in the increase in the property value of the matrimonial home owned by her… Read more

Trusts – The Certainty of Intention

In order to create a valid trust the  “three certainties” must be present- the certainty of the intention to  impose enforceable trust obligations on the trustee, the certainty of the subject matter to be included in the trust and the certainty of objects, a clearly… Read more