Reconsideration

Reconsidering a Previous Court Order

The law relating to the reopening of a trial and the reconsideration of a previous court order is well settled. The court has a wide discretion, which should be exercised judicially, with caution and sparingly. The leading case in British Columbia to reopen the trial… Read more

Document disclosure and production

Document Disclosure and Production

McLeod v Balakrishnan 2018 BCSC 908 reviews the law relating to document disclosure and production  in litigation. The case dealt with two applications, namely that the defendant provide a comprehensive list of documents, as well as an order that she produce documents requested of her… Read more

encroachment of a trust

Encroachment of a Spousal Trust

Toigo Estate 2018 BCSC 936 reviewed the law of the court’s jurisdiction to grant an order approving a resolution of the trustees discretionary power to encroach upon the capital of a spousal trust created by the deceased in favor of his wife. Pursuant to the… Read more

adjourn

Adjournment of Trials

The adjournment of a trial is a discretionary matter to the court, and the discretion must be exercised in accordance with the interests of justice, which in turn require a balancing of the interests of the parties. The facts of the application for an adjournment… Read more

Converting petition to action

Converting a Petition to an Action

Certain claims such as proving a will in solemn form must be brought by petition, and if the matter is to proceed, the petition must be converted to an action by way of a court order. In Kerfoot v Richter 2018 BCCA 238 the executor… Read more

sugar daddy

Deceit, Unjust Enrichment and the “Sugar Daddy”

Norkum v Fletcher 2018 BCSC 904 involved as a backdrop to the litigation sex for pay, opportunism, deceit and false expectations. The proceeding arose out of an 8 ½ year relationship between the parties with the plaintiff being a successful businessman looking for companionship, and… Read more

witness immunity

Witness Immunity and Republication of Judgements

I have on occasion received letters from parties involved in litigation that I have blogged about demanding that I remove the blog because of involving their name, however the law is clear that republication of a judgment without amendment or commentary that remains in force… Read more

Impeaching Witness Credibility

Impeaching Witness Credibility

The Supreme Court of Canada summarized the law relating to the impeachment of witness credibility in the rule in Browne v. Dunn in R.v Lyttle 2004 SCC 5 at paragraph 64: “The rule in Browne v Dunn requires counsel to give notice to those witnesses… Read more

Revoking a Grant of Probate

Revoking a Grant of Probate

Debsbiens v Smith Estate 2010 BCCA 392 discusses the concept of revoking a grant of probate, which typically involves one of two attacks, namely finding a defect in the process leading up to the grant of probate, such as failure to serve a beneficiary with… Read more

Striking Out Pleadings and Claims

Striking Out Pleadings and Claims

In Johnson v. Smith , 2018 BCSC 836, the entire plaintiff’s claim was struck out on the basis that it was confusing, difficult understand, unintelligible and failed to meet the requirements of Supreme Court Rule9-5(1) to inter alia disclose a reasonable claim. Rule 9-5(1) states:… Read more

Double Costs and Offers to Settle

Double Costs and Offers to Settle

Double costs and offers to settle were discussed in Lamperstorfer v Plett 2018 BCSC 607 Generally speaking costs of the proceeding must be awarded to the successful party unless the court otherwise orders. The word success is being equated to substantial success. As a general… Read more

Caregiver Services: Quantum Meruit

Caregiver Services: Quantum Meruit

A care giver was awarded $273,000 for care giving services provided to her mother for five years in Tarantino v Galvanometer 2017 3535 for quantum merit (fees for services). A claim for quantum meruit is simply one of the established categories of unjust enrichment. (Kerr… Read more

Trustees Breach of Duties Denied Fees

Trustees Breach of Duties Denied Fees

Zimmerman v McMichael Estate 2010 ONSC 2947 involved a passing of accounts hearing where a trustee was denied any compensation for his breach of duties as acting as trustee, denied fees, and ordered to re-pay $450,000  that he had pre-taken as compensation. The trustee was… Read more

Accessing Mental Capacity: MMSE Mental Capacity Tests

Assessing Mental Capacity: MMSE Mental Capacity Tests

MMSE mental capacity tests, also known as Mini Folstein tests are frequently used by the medical profession as a screening test in assessing mental capacity. Lawyers frequently attempt to tender the results of the MMSE results as evidence of lack of mental capacity. The courts… Read more

How to Defeat a Testamentary Gift: Beneficiary Fraud

How to Defeat a Testamentary Gift: Beneficiary Fraud

“Fraudulent beneficiaries”  has arisen in a claim that I am aware of currently before the courts, where it is alleged that the deceased was  fooled to leave his entire estate to someone who he believed was his natural son from a long-ago relationship, but the… Read more