“Adopted Out” Child Cannot Contest Biological Parent’s Estate Under Wills Variation

"Adopted Out" Child Cannot Contest Biological Parent's Estate Under Wills Variation

Boer v Mikaloff Estate 2017 BCSC 21 confirmed that an “adopted out” child cannot contest the will of the biological parent’s estate under S.60 WESA (the wills variation provision) when it answered the following posed question negatively:

Does a child who is adopted by other parents after birth, but who is named as a beneficiary under his birth mother’s will, have standing to seek relief under section 60 of the Wills, Estate and Succession Act, S.B.C. 2009, c. 13?

4      For the reasons that follow, the answer to the question is no. The plaintiff’s claim will be dismissed.

RELEVANT STATUTORY PROVISIONS

6      The relevant statutory provisions are ss. 37(1) and (5) of the Adoption Act, R.S.B.C. 1996, c. 5, the definition of “enactment” in s. 1 of the Interpretation Act, R.S.B.C. 1996, c. 238 and s. 3 and s. 60 of WESA.

7      Subsections 37(1) and (5) of the Adoption Act read:

37 (1) When an adoption order is made,

(a) the child becomes the child of the adoptive parent,

(b) the adoptive parent becomes the parent of the child, and

(c) the parents cease to have any parental rights or obligations with respect to the child, except a parent who remains under subsection (2) a parent jointly with the adoptive parent.

. . .

(5) The family relationships of one person to another are to be determined in accordance with this section, unless this or another enactment specifically otherwise provides or distinguishes between persons related by birth and persons related by adoption.

8      Section 1 of the Interpretation Act defines “enactment”:

In this Act, or in an enactment: . . .

“enactment” means an Act or a regulation or a portion of an Act or regulation;

9      Sections 3 and 60 of WESA read:

3 (0.1) In this section, “pre-adoption parent” means a person who, before the adoption of a child, was the child’s parent.

(1) Subject to this section, if the relationship of parent and child arising from the adoption of a child must be established at any generation in order to determine succession under this Act, the relationship is to be determined in accordance with the Adoption Act respecting the effect of adoption.

(2) Subject to subsection (3), if a child is adopted,

(a) the child is not entitled to the estate of his or her pre-adoption parent except through the will of the pre-adoption parent, and

(b) a pre-adoption parent of the child is not entitled to the estate of the child except through the will of the child.

(3) Adoption of a child by the spouse of a pre-adoption parent does not terminate the relationship of parent and child between the child and the pre-adoption parent for purposes of succession under this Act.

ANALYSIS

17      Section 60 of WESA requires a will-maker to make adequate provision for the proper maintenance and support for the will-maker’s spouse and children that is adequate, just and equitable in the circumstances.

18      A “will-maker” is defined as “a person who makes a will”: s.1 of WESA.

19      A “spouse” is specifically defined for the purposes of WESA: ss. 1 and 2.

20      WESA does not define “child” or “children”.

21      Subsection 37(1) of the Adoption Act provides that when an adoption order is made, “the child becomes the child of the adoptive parent” and “the adoptive parent becomes the parent of the child”. Section 1 of the Adoption Act defines a “child” as “an unmarried person under 19 years of age”.

22      Our Court of Appeal in Clayton v. Markolefas, 2002 BCCA 435, addressed whether an adopted child was “issue” of her birth father enabling her to be entitled to a portion of her birth father’s intestate estate. The Court considered in detail, s. 37 of the Adoption Act as it then read. For the purpose of the case at bar, the changes to s. 37 of the Adoption Act at the time of Clayton and now are not significant.

23      Justice Esson (as he then was), stated:

[6] . . . — It will be seen that s. 37(1) [Adoption Act] retains the concept that upon the making of the adoption order the child becomes the child of the adoptive parent and the adoptive parent becomes the parent of that child. It goes on to provide, subject to an exception which has no application here, that the birth parents cease to have any parental rights or obligations with respect to the child.

[7] Section 37(1)(c) is, in my view, all-important in relation to the present issue. Because the birth parents cease to have any parental rights or obligations, it must follow that the child ceases to have any rights against the birth parents other than those defined in s. 37(6), i.e., rights which vested in the child before the date of the adoption order. The existence of s. 37(6) is inconsistent with a legislative intention to allow other rights of the child against the birth parent to survive the adoption order.

[8] Section 37(6) [should read 37(5)] of the new Act, which provides that the family relationships of one person to another are to be determined in accordance with s.37, also has a clear bearing on the present issue. The question whether a person is “issue” of another person is a matter of family relationships. The clear effect of s.37(1) is that the adoptive child becomes the child of the adoptive parent. From that it follows that all parental obligations fall upon the adoptive parents. It can therefore be said of the present provisions, as Seaton J.A. said of s. 11 of the former Act:

The thrust of these provisions is to move the child from one family to another family and make it a child of the new family and no longer a child of the old family.

Amending Court Pleadings

Amending Court Pleadings

Russell Estate v Larson 2017 BCSC 113 contains a good summary of the law relating to amending court pleadings.

Pleadings are very important in litigation so as to give a concise definition of the issues to be tried and to allow the opposing party to have fair notice of the case against them to be met.

29      The applicants referred to the decision of British Columbia (Director of Civil Forfeiture) v. Violette, 2015 BCSC 1372in support of the application. In that case, the court considered the principles to be considered on an application to amend pleadings and noted:

[39] In Mayer v. Mayer, 2012 BCCA 77 at para. 215, the Court of Appeal affirmed that the fundamental purpose of pleadings is to define the issues to be tried with clarity and precision, to give the opposing parties fair notice of the case to be met, and to enable all parties to take effective steps for pre-trial preparation.

[40] Applications for leave to amend pleadings are considered on the same basis as applications to strike pleadings with the question being whether it is plain and obvious that the proposed amendments are bound to fail. In assessing that question, it is not determinative that the law has not yet recognized a particular claim. In its analysis, the court must be generous and err on the side of permitting an arguable claim to proceed to trial. See: McMillan v. McMillan, 2014 BCSC 546 at paras. 13-14, and cases cited therein.

[41] In Peterson v. 446690 B.C. Ltd., 2014 BCSC 1531 at para.37, this Court summarized the general principles arising on an application to amend pleadings as follows:

[37] Finally, the general principles arising on an application to amend pleading can be summarized as follows:

(a) Amendment to pleadings ought to be allowed unless pleadings fail to disclose a cause of action or defence: McNaughton v. Baker, [1988] 24 B.C.L.R. (2nd) 17 [(C.A.)].

(b) Amendments are usually permitted to determine the issues between the parties and ought to be allowed unless it would cause prejudice to party’s ability to defend an action: Levi v. Petaquilla Minerals Ltd., 2012 BCSC 776).

(c) The party resisting an amendment must prove prejudice to preclude an amendment, and mere, potential prejudice is insufficient to preclude an amendment: Jones v. Lululemon Athletica Inc., 2008 BCSC 719.

(d) Costs are the general means of protecting against prejudice unless it would be a wholly inadequate remedy.

(e) Courts should only disallow an amendment as a last resort: Jones, McNaughton, Innoventure S& K Holdings Ltd. et al. v. Innoventure (Tri-Cities) Holdings Ltd. et al., 2006 BCSC 1567.

30      Here, in my view, the question turns on prejudice. The position of the plaintiff that the new pleadings will raise matters going back 30 years raises no new prejudice. The entire action stems from matters going back 30 years.

31      The other prejudice argued is the potential expiry of the limitation period, the proximity of the trial date and the potential that the trial date will be lost and the fact that document discovery and examinations for discovery have been conducted on the basis of the amended counterclaim.

Executor Can Waive Solicitor Client Privilege

Executor Can Waive Solicitor Client Privilege

Haas Estate v Jane Doe 2017 BCSC 12 confirmed that an executor( personal representative ) of an estate can waive any solicitor client privilege that existed prior to the deceased’s passing.

Mr. Haas died on February 15, 2016, leaving a will naming his only child, the plaintiff, Brigitte Marga Anne Stapleton, as his executor and sole beneficiary of his estate. 

2      Approximately four months before he died, Mr. Haas purchased an insurance contract for a premium of $100,000 and named the plaintiff as the beneficiary. However, approximately two months before his death, Mr. Haas changed the beneficiary designation on the insurance policy to a party or parties unknown  ( thus Jane Doe as a defendant). Around the same time, he consulted with a solicitor, Ms. Kirsten Okimaw, with regard to estate planning matters. No new will was prepared.

The application was whether the plaintiff was entitled to a copy of the solicitor’s file. The solicitor has thus far refused to turn over the file based upon advice she has received from a practise advisor with the Law Society of British Columbia that the file is or may be protected by solicitor-client privilege 

s. 142(1) of the Wills, Estates and Succession Act, which states :

142(1) A personal representative has the same authority over the estate in respect of which the personal representative is appointed as the deceased person would have if living, subject to

(a) a contrary intention appearing in the will of the deceased person, and

(b) this or any other enactment. 

15      The “wills exception” cases are those where the solicitor who took instructions and drafted the will was required to give evidence regarding communications and instructions between solicitor and client where the execution, contents or validity of the will were in issue, despite there being no waiver of privilege. The plaintiff refers to authorities where the wills exception has been expanded to include analogous transactions such as the creation of a trust (Geffen v. Goodman Estate, [1991] 2 S.C.R. 353), and production of an estate planning file where the deceased had transferred two pieces of property prior to his death (Kreeft v. Kreeft Estate, September 18, 2006, Kelowna Registry No. S64537). Courts have drawn a distinction between those cases where production of a solicitor’s file is sought to aid in the determination of the validity or interpretation of the will on one hand and an attempt to attack or vary the will where the intentions are clear and manifest on the face of the will on the other. 

24      One case which addressed the question directly was Hicks Estate v. Hicks, [1987] O.J. No. 1426. The parties to the action were relatives of the deceased, and at issue in the claim was whether certain transfers of property were valid. The plaintiff was the personal representative of the deceased who brought an application for production of the files of the deceased’s former solicitors. Stortini D.C.J. stated the issue succinctly at para. 12:

The privilege can be waived or lost by the client. In our case the client is dead. Who, therefore, is the repository of the privilege?

25      He then went on to answer his own question as follows at para. 15:

15. It is clear, therefore, that the privilege reposes in the personal representative of the deceased client who in this case is the plaintiff, the administrator of the estate of Mildred Hicks. The plaintiff can waive the privilege and call for disclosure of any material that the client, if living, would have been entitled to from the two solicitors.

26      A British Columbia case that addressed the rights of a personal representative to waive privilege is Romans Estate v. Tassone, 2009 BCSC 194, which involved the estate of an elderly man who shortly before his death transferred two assets to a friend and named his much younger caregiver as the executor and sole beneficiary in his will. The executor commenced an action against the deceased’s friend to set aside the conveyances and an applied for production of the conveyancing solicitor’s files. The named executor had not been granted probate as at the date of the application and her entitlement to probate was in dispute. The deceased’s former solicitor asserted privilege over the conveyance files. Savage J. held that the solicitor had properly refused to disclose the files and that it was appropriate that the executor prove her authority by producing letters of probate first. At para. 40, Savage J. held the following:

40. The authorities in my view make several matters clear: (1) an action can be commenced without obtaining probate, as an executor’s authority is based on the will, (2) before proceeding with an action already commenced, the parties to an action may require that the Plaintiff prove their authority by producing letters probate, (3) the court may require that a Plaintiff prove their authority, by producing letters probate, of its own motion, when appropriate and (4) the court may order a stay of proceedings any time after the commencement of an action where it is in the interests of justice to do so, pending the issuance of letters probate.

27      While the question does not appear to have been a matter of dispute, Savage J. at para. 41, confirmed that the solicitor-client privilege vests in the personal representative

BC Wills Variation: Executor Added After Expiration of Limitation Date

Executor Added After Expiration of Wills Variation Limitation
 Under the provisions of section 60 WESA, an action under the wills variation provisions must be commenced within 180 days of the grant of probate or the action is statute barred.
In the 1987 decision Cowan v Cowan 17 BCLR ( 2d) 114, the plaintiff commenced an action (by an endorsed writ that existed then but no longer exists), under what was then known as the Wills Variation act, naming the defendant as a beneficiary but failing to name the executor as required by the rules of court.
The court ordered that the executor may be named as a party, despite the fact that the expiration of the limitation period under the wills variation act had expired, holding that the defect amounted only to an irregularity and not a nullity.
The court added the executor as a proper party to the action pursuant to what was then Rule 15(5) (A) (11) and section 4( (1) (A) of the Limitation act, which required that the new party be connected with the subject matter of the original action.
The court found that there was no prejudice to the executor, since he had in fact been served with the cause of action in his capacity as a beneficiary within the 180 day limitation, and the plaintiff had attempted to add the executor as a party in a timely fashion.
The court held that rule 8 (14) meant that all beneficiaries as well as the executor must be named as parties to the proceeding, and where such an individual as an executor is a party to an action in a representative capacity, that capacity should appear in the style of cause. If it is not, then the writ is a regular Raj Kour v Chan (1958) 27 WWR 191 AT 192.

The plaintiff must show that:

1) the person ought to of the named as a party, or b) the parties participation in the proceeding is necessary to ensure that all matters in the proceeding may be effectually adjudicated upon (Ent.. Realty v  Barnes Lake Cattle  Co. (1979) 13 BCLR 293 ( CA).
The court provided the following reasons for concluding that in these particular circumstances that the executor could be added as a party, despite the fact the   180 day limitation period ( then 6 months)  had expired:

20 (a) by R. 8(14) he must be a party;

21 (b) the Wills Variation Act claim was begun within the six-month period;

22 (c) the executor, while not named, was in fact served with the writ;

23 (d) it is clear from the endorsement that the claim is under the Wills Variation Act — not a personal claim against Mr. Cowan;

24 (e) there can be no prejudice to the defendant/beneficiary or executor in this case. There can be no more difficulty with old witnesses and poor memories than if the executor were named in the original writ;

25 (f) the purpose of limitation period under the Wills Variation Act is to enable the executor to distribute funds without fear of a claim being advanced after six months. In this case the beneficiary/executor was served with the writ within six months and there has been no prejudice in that regard;

26 (g) the position of executor, in a Wills Variation Act claim, is one of neutrality. He is to assist the court: Re McCarthy, [1919] N.Z.L.R. 807 (S.C.); Cookv. Webb, [1918] N.Z.L.R. 664. Thus his addition is not prejudicial;

27 (h) refusing to add the executor would not be in accordance with R. 2(1), which states that failure to comply with the rules (R. 8(14)) should be treated as an irregularity not a nullity.

Damage Assessments on Appeal

Damage Assessments on Appeal

“An appellate court will not interfere with a trial judge’s assessment of damages unless he or she erred in principle of law, misapprehended the evidence, failed to consider relevant factors or considered irrelevant factors, or there was no evidence on which the judge could have reached his or her conclusion: Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58 at para. 80.  

An award is inordinately low if it falls substantially below the range for damage awards in the same class of case, such that it demonstrates palpable and overriding error: Cory v. Marsh (1993), 77 B.C.L.R. (2d) 248 (C.A.); Le v. Luz, 2003 BCCA 640.”

As stated by the Supreme Court of Canada in the Naylor Group v Ellis-Don case stated:

It is common ground that the Court of Appeal was not entitled to substitute its own view of a proper award unless it could be shown that the trial judge had made an error of principle of law, or misapprehended the evidence (Lang v. Pollard, [1957] S.C.R. 858, at p. 862), or it could be shown there was no evidence on which the trial judge could have reached his or her conclusion (Woelk v. Halvorson, [1980] 2 S.C.R. 430, at p. 435), or the trial judge failed to consider relevant factors in the assessment of damages, or considered irrelevant factors, or otherwise, in the result, made “a palpably incorrect” or “wholly erroneous” assessment of the damages (Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, at p. 235; Laurentide Motels Ltd. v. Beauport (City), [1989] 1 S.C.R. 705, at p. 810; Widrig v. Strazer, [1964] S.C.R. 376, at pp. 388-89; Woelk, supra, at pp. 435-37; Waddams, supra, at para. 13.420; and H. D. Pitch and R. M. Snyder, Damages for Breach of Contract (2nd ed. 1989) 15§5).  Where one or more of these conditions are met, however, the appellate court is obliged to interfere. 

Financial Abuse of the Elderly

Financial Abuse of the Elderly

 

Elderly people are more susceptible to financial abuse and  fraudulent schemes such as telemarketers  and contest frauds .

Due to medical, technological and public health advances, the life span of a typical North American male or female has increased from age 68 in 1950 to approximately 80++ today and growing.

By sheer numbers alone our aging population has a greater percentage of the populace than ever.

Seniors also have an enormous amount of accumulated wealth and purchasing power that is much greater than  ever before. Nielsen rating stated  that 100 million consumers over age 50 spent $230 billion on packaged goods last year.

Con artists, scammers and other perpetrators of fraud well know this current state of affairs and are increasingly persistent and creative in the manner in which they target the “elderly”.

In 2010 20% of Americans over aged 65 admitted to having been subjected to a form of financial fraud or abuse, sometimes from their own family members.

I suspect that many others are too embarrassed to report their victimization.

Apparently one of the reasons the elderly are such targets is that they are simply more trusting than younger people despite their life experiences which one would suspect ought to lead to the opposite.

Psychologists state that this has to do with actual changes to the brain that don’t allow the elderly persons to detect the ” untrustworthy face” nearly as well as y0unger people. There is a decline in their ” gut feeling” about potential financial risks or dangers. they have a tendency to devote more of their memory and awareness to “positive” matters in general.

Seniors similarly have an increased capacity for becoming a victim of fraud due to a decline in their ability to comprehend financial decision making to the extent that one study suggests the decline is %1 for each year after age 60, despite the fact that they are seemingly not aware of any such decline.

A senior is thus more likely to become a target of  a telemarketer for example due to this deceased ability to comprehend their financial decline  when in fact it is present, perhaps even obvious   and increasing with one’s age.

There is a great need for family members to work with financial advisors to protect the interests of their aging family members.

Long time spouses who are suddenly widowed or divorced  are very vulnerable and obituaries are reviewed  by the scammers, and family members need to be aware of this.

On the other hand, much of the business conducted at disinherited.com is as a direct result of financial abuse by a family member or members.

Discretionary Trusts

Discretionary Trusts

A (S) v Metro Vancouver Housing Corp. 2017 BCCA 2 was a case involving how much information was required to be provided by the recipient of discretionary trusts in order to qualify for subsidized housing.

The case included an excellent discussion of what a discretionary trust is and how they are extensively used amongst various disabled persons in such matters as government involvement in their finances and expenses  re housing, medical and the like.

The BC Appeal Court in Purtzki v. Saunders, 2016 BCCA 344described discretionary trusts as follows:

[64] Strictly speaking, the object of a discretionary trust may lack a “proprietary” or “possessory” interest in the property of a trust. In M. (H.R.), the court referred to the decision of the House of Lords in Gartside v. I.R.C., [1968] 1 All E.R. 121. Gartside concerned the meaning of the term “interest in possession” under the Finance Act. Lord Wilberforce said this of a beneficiary’s interest in a discretionary trust (at 134):

No doubt in a certain sense a beneficiary under a discretionary trust has an “interest”: the nature of it may, sufficiently for the purpose, be spelt out by saying that he has a right to be considered as a potential recipient of benefit by the trustees and a right to have his interest protected by a court of equity. … But that does not mean that he has an interest which is capable of being taxed by reference to its extent in the trust fund’s income: it may be a right with some degree of concreteness or solidity, one which attracts the protection of the court of equity, yet it may still lack the necessary equality of definable extent which must exist before it can be taxed.

[65] Similarly, the authors of Underhill and Hayton: Law of Trusts and Trustees, 18th ed. (London: LexisNexis, 2010) at 98, describe the nature of a discretionary trust as follows:

Where a beneficiary has no such absolute current right to direct the trustees to pay him an ascertainable part of the net income or capital he has ‘no interest in possession’, only being interested under a discretionary trust. Typically, this is the case where a beneficiary will receive income only if the trustees positively decide to carry out their duty to distribute income by favouring him rather than another member of the class of potential beneficiaries. There is also the atypical case where a beneficiary must receive the income unless the trustees exercise distributive (or dispositive) powers to divert the income elsewhere … or to withhold it …: the discretion-conferring distributive powers prevent an interest in possession arising (eg where B is a life tenant subject to dispositive powers).

[66] A discretionary trust is distinct from a fixed trust. The authors of Underhill and Hayton at 98, describe a fixed trust as follows:

Where a beneficiary has a current fixed entitlement to an ascertainable part of the net income or net capital, if any, of the trust fund after deduction of sums paid by the trustees in the exercise of their administrative powers of management, the beneficiary has a fixed interest which ranks as ‘an interest in possession’ under the trust.

[67] Unlike a fixed trust, the beneficiaries of a fully discretionary trust and their entitlements (distinct from the potential beneficiaries and their potential entitlements) cannot be ascertained at the time of settlement. A discretionary trust may also come in a variety of forms. Under an “exhaustive” discretionary trust, the trustee must distribute the whole of the income or capital, or both, but retains the power to choose who among the potential beneficiaries should receive distributions, and in what amount. Under a “non-exhaustive” discretionary trust, the trustee has the added power to choose whether or not to make any distribution at all.

Joint Bank Holder Not Liable For Breach of Fiduciary Duty

Joint Bank Holder Not Liable For Breach of Fiduciary Duty

No specific terms of payment were ever agreed between the parties and the defendant was paid the sum of $37,850 over approximately 5 years.

No evidence of mental incapacity was led at trial, although the deceased estate did become incompetent at some point during those years.
The court dismissed the claim as it found there was a loose family agreement that monies  charged to manage to account and that the payments were reasonable under the circumstances.

The Court Reviewed the Law of Fiduciary Duty

[29] . Fiduciary duties can arise without formal appointment as attorney, executor or trustee.[1]

[30]  Fiduciary relationships may arise depending on the nature and evolution of the relationship and the tasks undertaken in furtherance of that relationship.[2] As noted by Justice Wilson of the Supreme Court of Canada in Frame v. Smith (1987) 2 SCR 99 at 136, the following indicia has been accepted as a “rough and ready” guide to assist with the determination of whether a fiduciary relationship exists:

i.           The fiduciary has scope for the exercise of some discretion or power;

ii.         The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests;

iii.        The beneficiary is vulnerable to or at the mercy of the fiduciary holding the discretion or power.

[29]  Fiduciaries are burdened with responsibilities including the duty to act in the best interests of the person to whom they are bound to protect. Fiduciaries are required to vigilantly avoid any conflict between their own personal interests and their duties as fiduciaries.

[30]  At common law and in equity the general rule is that fiduciaries are not entitled to benefit from their appointment. ( Waters on Trusts)

However, this rule is not an absolute prohibition on activities that present a conflict of interest and duty. In the present case Annie had the right to request that Dawn provide care and companionship to her in exchange for compensation. Annie was entitled to organize her finances and personal services as she saw fit. The application of the rule of equity arises as follows: once the court has found a conflict between personal interest and duty the question arises as to whether there was consent to the activity. In this case the question is whether Annie or her attorney provided consent to the payments for personal services.

The Court’s Power to Conrol Itself (Vexatious Litigants)

Vexatious LitigantsSemenoff Estate v Semenoff 2017 BCCA 17 involved the Appeal Court reviewing the power of the court to control it’s own conduct and that of  vexatious litigants appearing in court.

The case arose from an appeal of 30 issues from a summary judgement hearing  and it was argued that the appellant should be declared a vexatious litigant.

 

The Court stated:

The summary trial judge had the power to make the vexatious litigant order pursuant to s. 18 of the Supreme Court Act, R.S.B.C. 1996, c. 443, which provides:

If, on application by any person, the court is satisfied that a person has habitually, persistently and without reasonable grounds, instituted vexatious legal proceedings in the Supreme Court or in the Provincial Court against the same or different persons, the court may, after hearing that person or giving him or her an opportunity to be heard, order that a legal proceeding must not, without leave of the court, be instituted by that person in any court.

 

31      Section 18 confers a broad jurisdiction on the court to control its own process. This Court described the purpose of the provision as follows in S.(M.) v. S.(P.I.) (1998), 60 B.C.L.R. (3d) 232 (B.C.C.A.) at para. 13:

Section 18 of the Supreme Court Act has been in the Act for a great many years. The section gives the court the needed ability to control its own process. It enables the court to put in place an order to prevent a citizen or citizens from being subjected to an endless blizzard of litigation. . . . It is obviously of the utmost importance that there be unfettered access to the courts by citizens but I should think that a corollary of that is that continuing abuse of this most valuable and deeply enshrined democratic right should be dealt with decisively to preserve the rights of all. There is a right to invoke the jurisdiction of the Supreme Court but it is not a right that is without limit. In my opinion, s. 18 of the Supreme Court Act affords to judges of the Supreme Court the authority to order in proper cases that a persistent litigant must seek leave before being able to launch court proceedings. It is a necessary power to ensure the proper administration of justice.

Judicial Bias

Judicial Bias

Allegations of judicial bias occasionally make the news when a litigant asserts that the proposed  Judge is so biased that a fair trial cannot be obtained, and the Judge is asked to recuse him or herself.

Bias is very different from a court finding a witness not credible, loathsome or some other unworthy adjective- those comments might appear  after hearing the evidence and  then such conclusions might be made by the court.

 

Judicial bias is often asserted prior to a trial such as when President Trump asserted he could not get a fair trial in front of an American born Latino judge due to Trump’s  “Build a Wall” comments.

 

Suh applications rarely succeed as they generally have no probative value, similar to Trump’s.

 

Everyone has some biases including Judges, but Judicial bias is something far more serious to the point that it requires cogent evidence in addition to the reasonable expectation that bias might exist and a fair trial not be posible.

 

The Legal Test for Judicial Bias    (from 4361814 Canada Inc.v Daicor Inc. 2015 BCSC 1481):

 

 22.  The principles are set out succinctly by Justice Laskin, writing for the Court of Appeal in Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham8, beginning at paragraph 131:

 

133…. These principles, now well established, have recently been summarized by the Supreme Court of Canada in R. v. S. (R.D.), [1997] 3 S.C.R. 484 (S.C.C.). They are as follows:

1. All adjudicative tribunals owe a duty of fairness to the parties who appear before them. The scope of the duty and the rigour with which the duty is applied vary with the nature of the tribunal. Courts, however, should be held to the highest standards of impartiality.

2. Impartiality reflects a state of mind in which the judge is disinterested in the outcome and is open to persuasion by the evidence and submissions. In contrast, bias reflects a state of mind that is closed or predisposed to a particular result on material issues.

3. “Fairness and impartiality must be both subjectively present and objectively demonstrated to the informed and reasonable observer. If the words or actions of the presiding judge give rise to a reasonable apprehension of bias to the informed and reasonable observer, this will render the trial unfair.” (R. v S. (R.D.) at para. 94)

4. The test for bias contains a twofold objective standard: the person considering the alleged bias must be reasonable and informed; and the apprehension of bias must itself be reasonable. In the words of de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at 394, approved of by the Supreme Court of Canada in R.D.S., supra:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. [The] test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude ….”

5. The party alleging bias has the onus of proving it on the balance of probabilities.

6. Prejudgment of the merits, prejudgment of credibility, excessive and one-sided interventions with counsel or in the examination of witnesses and the reasons themselves may show bias. The court must decide whether the relevant considerations taken together give rise to a reasonable apprehension of bias.

7. The threshold for a finding of actual or apprehended bias is high. Courts presume that judges will carry out their oath of office. Thus, to make out an allegation of judicial bias, requires cogent evidence. Suspicion is not enough. The threshold is high because a finding of bias calls into question not just the personal integrity of the judge but the integrity of the entire administration of justice.

8. Nonetheless, if the judge’s words or conduct give rise to a reasonable apprehension of bias, it colours the entire trial and cannot be cured by the correctness of the subsequent decision.

23      From these principles it is clear that the test for judicial bias is an objective one: what would the informed person reasonably conclude from the facts. Unimac disagrees.