Author: Trevor Todd

Lawyer Disqualified From Acting

Re Waigel Estate 2022 BCSC 2274 examined a lawyers role in acting for a client and found cause to disqualify the lawyer from continuing to act.

The leading decision is In Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39, the Supreme Court of Court considered whether a law firm could accept a retainer to act against a current client on an unrelated matter and bring a lawsuit against a current client on behalf of another client.

McKercher examined a lawyer’s duty of loyalty and found that it has three dimensions:

1) a duty to avoid conflicting interests,
2) a duty of commitment to the client’s cause,
3) and a duty of candour.

The duty of commitment entails that, subject to law society rules, a lawyer or law firm as a general rule should not summarily drop a client simply to avoid conflicts of interest. The duty of candour requires disclosure of any factors relevant to the ability to provide effective representation. A lawyer should advise an existing client before accepting a retainer that will require him or her to act against the client.

The Court examined the risk to effective representation that arises when a lawyer acts concurrently in different matters for clients whose immediate legal interests are directly adverse. The bright line rule against concurrent retainers applies to concurrent representation in both related and unrelated matters.

The duty of commitment to the client’s cause suggests that a law firm should not summarily and unexpectedly terminate a retainer as a means of circumventing conflict of interest rules.

The McKercher firm had committed itself to act loyally for CN on the personal injury, real estate and receivership matters. McKercher was bound to complete those retainers, unless the client discharged it or acted in a way that gave McKercher cause to terminate the retainers. McKercher breached its duty of commitment to CN’s causes when it terminated its retainer with CN on two of these files. It is clear that a law firm cannot terminate a client relationship purely in an attempt to circumvent its duty of loyalty to that client: De Beers Canada Inc. v. Shore Gold Inc., 2006 SKQB 101, 278 Sask. R. 171, at para. 17;

The court in McKercher at paras. 11, 63 and 65 wrote as follows:

[11] As regards the appropriate remedy to McKercher’s breaches, I conclude that the only concern that would warrant disqualification in this case is the protection of the repute of the administration of justice. A breach of the bright line rule normally attracts the remedy of disqualification. This remains true even if the lawyer-client relationship is terminated subsequent to the breach. However, certain factors may militate against disqualification, and they must be taken into consideration. As the motion judge did not have the benefit of these reasons, I would remit the matter to the Queen’s Bench for redetermination in accordance with them.

[63] The third purpose that may be served by disqualification is to protect the integrity and repute of the administration of justice. Disqualification may be required to send a message that the disloyal conduct involved in the law firm’s breach is not condoned by the courts, thereby protecting public confidence in lawyers and deterring other law firms from similar practices.
…
[65] … [C]ourts faced with a motion for disqualification on this third ground should consider certain factors that may point the other way. Such factors may include: (i) behaviour disentitling the complaining party from seeking the removal of counsel, such as delay in bringing the motion for disqualification; (ii) significant prejudice to the new client’s interest in retaining its counsel of choice, and that party’s ability to retain new counsel; and (iii) the fact that the law firm accepted the conflicting retainer in good faith, reasonably believing that the concurrent representation fell beyond the scope of the bright line rule and applicable law society restrictions.

BC Estate Lawyer-Removal of an Executor/Trustee 2023

Trevor Todd and Jackson Todd have over 60 years experience in handling contested estate matters including dealing with difficult executors and having them removed when appropriate..

It is difficult to remove and substitute an alternate executor/trustee as a will-maker has the right to choose their executor and trustee.

That choice is entitled to deference and will only be interfered with if there is clear and cogent evidence to do so. In Parker v. Thompson (Trustee), 2014 BCSC 1916, Hinkson, C.J.S.C. stated:

In Haines v. Haines, 2012 ONSC 1816 at para. 10 as equally applicable to the removal of the trustee:

In Johnson v. Lanka, 2010 ONSC 4124, (2010), 103 O.R. (3d) 258 at para. 15, Pattillo J. summarized the principles that should guide the court’s discretion in deciding whether to remove estate trustees:

(a) the court will not lightly interfere with the testator’s choice of estate trustee;
(b) clear evidence of necessity is required;
(c) the court’s main consideration is the welfare of the beneficiaries; and
(d) the estate trustee’s acts or omissions must be of such a nature as to endanger the administration of the trust.

See also Burke v. Burke, 2019 BCSC 383 at para. 29.

In addition, “not every actual or perceived conflict should lead to disqualification of an executor”. Each case turns on its own facts: Burke at para. 43.
s. 30 of the Trustee Act, R.S.B.C. 1996, c. 464 [Trustee Act] . Section 30 states:

Removal of trustees on application

S.30 Trustee Act provides:

A trustee or receiver appointed by any court may be removed and a trustee, trustees or receiver substituted in place of him or her, at any time on application to the court by any trust who is not under legal disability, with the consent and approval or a majority in interest and number of the trust beneficiaries who are also not under legal disability.

s. 31 of the Trustee Act provides the authority needed to replace the executor. Section 31 provides:

Power of court to appoint new trustees

31 If it is expedient to appoint a new trustee and it is found inexpedient, difficult or impracticable to do so without the assistance of the court, it is lawful for the court to make an order appointing a new trustee or trustees, whether there is an existing trustee or not at the time of making the order, and either in substitution for or in addition to any existing trustees.

s. 158 and 159 of WESA also provides for the removal or passing over of a personal representative.

In Dahle Estate (Re), 2021 BCSC 718 at para. 20 there are four categories of conduct by an executor that will warrant their removal:

(1) endangerment of trust property;
(2) want of honesty;
(3) want of proper capacity to execute the duties; and
(4) want of reasonable fidelity.

Contractual Certainty

The issue of whether a valid contract has ben formed or not arises from time to time in estate litigation.

The area is very fact specific but there are certain guidelines the courts will exercise in their attempt to find a binding contract.

The law on the level of certainty required to establish the existence of a contract was recently summarized in Ai Kang Yi Yuan Enterprises Corp. v. 1098586 B.C. Ltd., 2022 BCSC 1416:

[205] The test that governs whether the parties have formed an enforceable contract essentially involves answering two questions: (1) whether the parties objectively intended to enter contractual relations; and (2) whether they had reached agreement on essential terms that are sufficiently certain to enforce…

[206] The court’s determination of contractual intention is rooted in the facts and requires it to consider whether a reasonable third-party observer would conclude from all the circumstances, including the document itself, the circumstances underlying execution, and the parties’ subsequent conduct, that the parties intended to enter into binding legal relations…

[207] The case law recognizes that the above determinations are fact-driven…

[208] Critical to a determination of the nature of the December 5 Document in this case is the distinction between non-binding preliminary agreements to agree, agreements to enter into further agreements without binding intent, and agreements with binding intent that anticipate further documentation. This continuum was described by the Ontario Court of Appeal in Bawitko Investments Ltd. v. Kernels Popcorn Ltd. (1991), 1991 CanLII 2734 (ON CA), 79 D.L.R. (4th) 97 (O.N.C.A.) at 103–104:

As a matter of normal business practice, parties planning to make a formal written document the expression of their agreement, necessarily discuss and negotiate the proposed terms of the agreement before they enter into it. They frequently agree upon all of the terms to be incorporated into the intended written document before it is prepared. Their agreement may be expressed orally or by way of memorandum, by exchange of correspondence, or other informal writings.

The parties may “contract to make a contract”, that is to say, they may bind themselves to execute at a future date a formal written agreement containing specific terms and conditions. When they agree on all of the essential provisions to be incorporated in a formal document with the intention that their agreement shall thereupon become binding, they will have fulfilled all the requisites for the formation of a contract. The fact that a formal written document to the same effect is to be thereafter prepared and signed does not alter the binding validity of the original contract.

However, when the original contract is incomplete because essential provisions intended to govern the contractual relationship have not been settled or agreed upon; or the contract is too general or uncertain to be valid in itself and is dependent on the making of a formal contract; or the understanding or intention of the parties, even if there is no uncertainty as to the terms of their agreement, is that their legal obligations are to be deferred until a formal contract has been approved and executed, the original or preliminary agreement cannot constitute an enforceable contract. . .

[260] Where there is an intention to contract, the court will make a significant effort to give meaning to that agreement. However, there are limits to how far a court can go; a court cannot create an agreement on essential terms where none exists…

[261] In Concord Pacific BCSC, Voith J. (as he then was), whose analysis was generally affirmed in Concord Pacific BCCA, helpfully summarized the principles that have developed in Canada, and BC more specifically:

[331] . . . The fact that parties may wish to contract, or that they believe they have entered into a binding contract, does not make it so. That belief or wish will engage other principles. It will likely cause the court to strive to assist the parties and to find meaning in the substance of their agreement: Hoban at para. 4. In Marquest Industries Ltd. v. Willows Poultry Farms Ltd. (1968), 1968 CanLII 581 (BC CA), 1 D.L.R. (3d) 513 (B.C. C.A.), the Court, at 517 — 518, said:

[E]very effort should be made by a Court to find a meaning, looking at substance and not mere form, and the difficulties in interpretation do not make a clause bad as not being capable of interpretation, so long as a definite meaning can properly be extracted . . . [I]f the real intentions of the parties can be collected from the language within the four corners of the instrument, the Court must give effect to such intentions by supplying anything necessarily to be inferred and rejecting what is repugnant to such real intentions so ascertained.

…

What constitutes an “essential” term in an agreement will depend on both the nature of the agreement and the circumstances of the case: Concord Pacific BCSC at para. 341; United Gulf Developments Ltd. v. Iskandar, 2008 NSCA 71 at para. 14. The key question to answer in analysing certainty of terms is whether the parties have agreed on all matters that are “vital or fundamental” to the arrangement, or whether they intended to defer legal obligations until a final agreement has been reached. What constitutes an essential term is fact specific. Different types of contracts may have different essential terms, though price is generally considered essential in most contractual contexts.

The Admissibility of Hearsay Statements of a Deceased

It is a fact that estate litigation is rife with hearsay evidence, often “from” the deceased and if certain criteria are met, such evidence is admissible.

In Peterson v. Welwood, 2018 BCSC 1379 at paras. 69-8o the court considered the admissibility of statements of the deceased:

In Gutierrez v. Gutierrez, 2015 BCSC 185 at para. 34 the court summarized the factors that can be considered when assessing the threshold reliability of a hearsay statement:

1) the presence or absence of a motive to lie

2) independent corroborative evidence that “goes to the trustworthiness of the statement” (Blackman at para. 55; Khelawon at para. 67; R. v. Couture, 2007 SCC 28 (S.C.C.) at para. 83);

3) timing of the statement relevant to the event, contemporaneity (Khelawon at para. 67);

4) the declarant’s mental capacity at the time of making the statement (Khelawon at para. 107);

5) solemnity of the occasion and whether the declarant’s statement was made “in circumstances that could arguably be akin to the taking of an oath where the importance of telling the truth and the consequences of making a false statement were properly emphasized” (Couture at para. 89; Khelawon at para. 86).

It is important to recognize that, as a preliminary threshold issue, the court must first find on a balance of probabilities that the statement was in fact made by a deceased declarant before it goes on to determine the treatment and weight of such evidence: Creutz v. Estate of Kristian Winther, 2007 BCSC 1463 at para. 99.

This assessment turns on the credibility of the witnesses who relate to the court the hearsay statements attributed to the deceased declarant: Halfpenny v. Holien (1997), 37 B.C.L.R. (3d) 186 (S.C.).

Binding Oral Contracts

While it is obviously more advantageous for the enforceability of a contract to be in writing, an oral contract can be just as valid as written contract if the necessary criteria are met.

In Oswald v. Start Up SRL, 2021 BCCA 352 at para. 34 , the court set out the legal test for the formation of a binding and enforceable contract:

(a) there must be an intention to contract;

(b) the essential terms must be agreed to [by] the parties;

(d) whether the requirements of a binding contract are met must be determined from the perspective of an objective reasonable bystander, not the subjective intentions of the parties; and

(e) the determination is contextual and must take into account all material facts, including the communications between the parties and the conduct of the parties both before and after the agreement is made.

Part (d) of the Oswald test summarizes “what has been called the objective principle of contract formation”: Summers v. Sawyer, 2005 CanLII 30880, 2005 CarswellOnt 4001 (S.C.) at para. 15 [Summers]. In Summers, the court adopted the following passage from S. M. Waddams, The Law of Contracts, 5th ed. (Toronto: Canada Law Book, 2005) at 103, which elaborates on this principle:

The principle function of the law of contracts is to protect reasonable expectations engendered by promises.
…
Every definition of contract, whether based on agreement or on promise, includes a consensual element. But the test of whether a promise is made, or of whether assent is manifested to a bargain, does not and should not depend on an inquiry into the actual state of mind of the promisor, but on how the promisor’s conduct would strike a reasonable person in the position of the promisee.

The Summers court also cited the following passage from Smith v. Hughes (1871), L.R. 6 Q.B. 597 at 607, which states the objective principle of contract formation another way:

If, whatever a man’s real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party upon that belief enters into a contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party’s terms.
See also Hucul v. GN Ventures Ltd., 2022 BCSC 144 at para. 136.

In Summers, the court concluded there was an oral agreement between the three shareholders of a trucking company that was unable to start a business due to a lack of financing. As a result, the shareholders were each responsible for one-third of the company’s start-up expenses.
Reeves v. Russell, 82 R.P.R. (4th) 137, 2009 CanLII 11437 (Ont. S.C.) Is a good example of a case where a court found an enforceable oral agreement had been formed in the context of the formation of a business.

Joint Tenancies – Who Gets What on Death?

The transfer of the legal interest in property into joint tenancy gives rise to three potential scenarios:

a) The creation of a true joint tenancy, in which each of the joint tenants is an owner of the whole, with each enjoying the full benefit of property ownership, and with the ultimate survivor enjoying the whole title;

b) The creation of a resulting trust, where only one joint tenant owns the beneficial interest and the other holding the title in trust for the other with no beneficial interest; and

c) A gift of the right of survivorship, where a joint tenant is gratuitously placed on title with no beneficial interest in the property until the death of the donor.

Pecore v. Pecore, 2007 SCC 17; Petrick (Trustee [of]) v. Petrick, 2019 BCSC 1319 at para. 40.

The right of survivorship (in other words, the right to “inherit” upon surviving the donor) is a necessary incident of a joint tenancy. When a joint tenant dies, his or her interest in the property is extinguished. The surviving joint tenants continue to hold the property as joint tenants. The last surviving joint tenant takes full ownership of the property: McKendry v. McKendry, 2017 BCCA 48 at para. 28.

So long as the requirements of a binding gift are met, the owner of property may, during his or her lifetime, make an immediate gift of a joint tenancy, including the right of survivorship. This is so regardless of whether the donee of the gift is to hold it for the benefit of the donor while the donor is alive. When gifted inter vivos, the right of survivorship is a form of expectancy regarding the future. It is a right to what is left of the jointly-held interest when the donor dies: Simcoff v. Simcoff, 2009 MBCA 80 at para. 64; Bergen v. Bergen, 2013 BCCA 492 at para. 37; Pecore at paras. 45–53.

Moreover, a donor may gift the right of survivorship but continue to deal freely with the property throughout his or her lifetime: McKendry at para. 30; Simcoff v. Simcoff, 2009 MBCA 80 at para. 64. Accordingly, the gift is the donee’s survivorship interest in the property, whatever it may be, at the time of the donor’s death: Pecore at para. 50.

Placing a party on title to property as a joint tenant constitutes a legal transfer of the property at law. The legal and equitable title (i.e., the right of survivorship) of a joint tenancy vest at the time the joint tenancy is created. An inter vivos gift of a joint tenancy is a gift that cannot be retracted by the donor and is therefore a “complete and perfect inter vivos gift”: Pecore at para. 49. See also: McKendry at para. 32. However, the gift is only perfected when the donor intends to transfer title in joint tenancy—and all the concomitant legal and equitable rights—to the donee: Bergen v. Bergen, 2013 BCCA 492 at paras. 37, 40, 42; Beams v. Mills Estate, 2015 BCSC 1269 at para. 147.

In a case involving, as here, a gratuitous transfer of an interest in land to an independent adult child, it does not follow as a matter of law that an immediate irrevocable gift was made. Rather, the donee must rebut the legal presumption of a resulting trust: Schouten Estate v. Swagerman-Schouten, 2014 BCSC 2320 at paras. 2–3; Pecore at paras. 24–26; Bergen at para. 5. If, on a balance of probabilities, the donee establishes that the donor’s intention was to make an irrevocable gift, a resulting trust will not be found: Pecore at paras. 43–44, 55; Schouten Estate at para. 7.

The actual intention of the donor at the time of the transfer is the governing consideration in the assessment of whether the presumption of resulting trust has been rebutted: McKendry at para. 31. Evidence that the donor may have had second thoughts afterwards but took no steps to revoke the gift does not assist in rebutting the presumption, as the analysis is focused on the transferor’s intention at the time the transfer was made: Bakken Estate v. Bakken, 2014 BCSC 1540 at para. 74.

Generally speaking, evidence of the donor’s intention ought to be contemporaneous with the transfer, or nearly so: Pecore at para. 56. Post-transfer conduct must be approached with caution: Schouten Estate at para. 6; Bakken Estate at para. 74. Where the donor’s intention is clear, the presumption of resulting trust is not engaged: Petrick at para. 47.

The mere fact that the donor has maintained control of and management over the property after the transfer does not mean that he or she did not intend to gift the joint interest. Such evidence is not necessarily inconsistent with an intention to gift and, without more, is not determinative: Pecore at para. 66; Madsen Estate v. Saylor, 2007 SCC 18 at para. 19; McKendry at paras 29–30.

Committeeship Criteria ( Patients Property Act)

Mok v Wom 2022 BCCA 418 confirmed the criteria for appointing a committee of a mentally infirmed patient’s estate and/or person.

An application for appointment of committee of the person invokes the parens patriae jurisdiction of the court. It is an inherently discretionary and fact specific assessment, governed by the overriding concern of who will serve the patient’s best interests.

Section 18(1) of the Patients Property Act ( PPA) states:

A committee must exercise the committee’s powers for the benefit of the patient and the patient’s family, having regard to the nature and value of the property of the patient and the circumstances and needs of the patient and the patient’s family.

Though the PPA does not provide a specific test to be used in determining who should be a committee, the courts have developed criteria to guide the exercise of discretion in making such an appointment. The court in Stewart (Re) summarized some of these considerations as follows at para. 29:

[29] … However, cases have identified various considerations; see for example: Vranic (Re), 2007 BCSC 1949; Bowman (Re), 2009 BCSC 523; Palamarek (Re), 2011 BCSC 563; Re Matthews, 2013 BCSC 1045; and Sangha (Re), 2013 BCSC 1965. They include:

(a) whether the appointment reflects the patient’s wishes, obviously when he or she was capable of forming such a wish;

(b) whether immediate family members are in agreement with the appointment;

(c) whether there is any conflict between family members or between the family and the patient, and whether the proposed committee would be likely to consult with immediate family members about the appropriate care of the patient;

(d) the level of previous involvement of the proposed committee with the patient, usually family members are preferred;

(e) the level of understanding of the proposed committee with the patient’s current situation, and will that person be able to cope with future changes of the patient;

(f) whether the proposed committee will provide love and support to the patient;

(g) whether the proposed committee is the best person to deal with the financial affairs and ensure the income and estate are used for the patient’s benefit;

(h) whether a proposed committee has breached a fiduciary duty owed to the patient, or engaged in activity which diminishes confidence in that person’s abilities to properly handle the patient’s affairs;

(i) who is best to advocate for the patient’s medical needs;

(j) whether the proposed committee has an appropriate plan of care and management for the patient and his or her affairs and is best able to carry it out; and

(k) whether a division of responsibilities such as between the patient’s estate and the patient’s person to different persons would serve the best interests of the patient, or would such a division be less than optimal for the patient.

A judge’s discretion in this assessment is broad; there is no formula that must be rigidly applied. A judge’s decision will often be exercised against a complex set of facts, and will typically have to weigh and balance multiple considerations, some of which may be in tension, and may support, standing alone, different outcomes. Moreover, these kinds of decisions often have to respond to exigent circumstances. Courts need to be able to act decisively to protect the interests of patients. There is a powerful imperative to achieve certainty and finality.

Examination For Discovery Limited to 7 Hours

Pacific Granite v Jacob Construction 2022 BCSC 2141 refused an application for 4 additional hours of time to examine the opposing party for further examination for discovery.

An examination for discovery is in the nature of a cross-examination, where the examiner is in control of the questions.

It is not the duty of the court to micro-manage how counsel conducts a discovery (Kendall v. Sun Life Assurance Co. of Canada, 2010 BCSC 1556 at para. 52).

Rule 7-2(2) limits an examination for discovery to 7 hours, or any greater period to which the person to be examined consents. Mr. Nilson’s discovery comprised two full days and is acknowledged to have taken well over 7 hours. A review of the transcripts shows that Mr. Nilson has now been discovered for over 9 hours. The plaintiff seeks an additional 4 hours.
The considerations of the court on such an application are set out in Rule 7-2(3):

Considerations of the court

(3) In an application under subrule (2) to extend the examination for discovery period, the court must consider the following:

(a) the conduct of a person who has been or is to be examined, including
(i)the person’s unresponsiveness in any examination for discovery held in the action,
(ii)the person’s failure to provide complete answers to questions, or
(iii)the person’s provision of answers that are evasive, irrelevant, unresponsive or unduly lengthy;
(b) any denial or refusal to admit, by a person who has been or is to be examined, anything that should have been admitted;
(c) the conduct of the examining party;
(d) whether or not it is or was reasonably practicable to complete the examinations for discovery within the period provided under subrule (2);
(e) the number of parties and examinations for discovery and the proximity of the various interests of those parties.

In Kendall v. Sun Life, the court said at para. 14 “The newly imposed time limit on discovery makes it all the more important that the courts enforce the principle that counsel for the examined party must not unduly interfere or intervene during the examination for discovery. The time limit imposes a self-policing incentive on the examining counsel to be focused and to not waste time on questions that will not advance the purpose of investigating the case or obtaining admissions for use at trial. “

In More Marine Ltd. v. Shearwater Marine, 2011 BCSC 166, Justice N. Smith said (at para. 12) “Although the test for relevance of a particular question or group of questions remains very broad, examining parties who ask too many questions about marginally relevant matters, who spend too much time pursuing unproductive trains of inquiry or who elicit too much evidence that will not be admissible at trial risk leaving themselves with insufficient time for obtaining more important evidence and admissions.”

Having asked too many questions about marginally relevant matters, there was insufficient time remaining to address the balance of the questions that counsel wished to ask. An examination for discovery is not an opportunity for limitless questioning, even on relevant matters. There is a reason for the time limit set out in the Rules.

BC Lawyer- Loan or Gift From Mom/ Dad To Newly Weds

Trevor Todd and Jackson Todd have over sixty years combined experience in handling contested estates including whether monies advanced from parents to a child and his/her spouse is a gift or a loan

I previously wrote on the “bank of mom and dad” and how they had an almost %100 failed collection rate when the wedding “gift” suddenly turns into a loan after the marriage fails.

Whether the advancement of funds from one party to another is a loan or a gift is a common theme in estate litigation and more so when it involves families and money.

The courts have more frequently than not found that the out of luck parents intended a gift when the monies were advanced and not a loan.

Typically since it is family, the details are not documented and signed . The parents attitude is often that it is a gift so long s the marriage holds and if not, we want our money back.

In Zucker v Zucker 2022 BCSC 2025 the parents did the usual thing of advancing monies to a child and his spouse for them to buy a home. There was a mortgage and a signed promissory note.

The child of the parents agreed with them at trial that the monies were advanced as a loan but the spouse argued that it was a gift.

Based on some unique evidence the court held that the parents intended a loan.

At para. 43, the court noted that in Kuo v. Chu, 2009 BCCA 405 (B.C. C.A.) at para. 9, the Court of Appeal adopted the following factors from Locke v. Locke, 2000 BCSC 1300 (B.C. S.C.), as applicable to the question of whether a loan or a gift was intended:

(a) Whether there were any contemporaneous documents evidencing a loan;

(b) Whether the manner for repayment is specified;

(d) Whether there are advances to one child and not others, or advances of unequal amounts to various children;

(e) Whether there has been any demand for payment before the separation of the parties;

(f) Whether there has been any partial repayment; and,

(g) Whether there was any expectation, or likelihood, of repayment.

The court firstly attempted to determine the actual intention of the transferors on the balance of probabilities.

The court starts with the presumption of a resulting trust, and weighs the evidence in an attempt to ascertain the transferors actual intention .

The presumption of resulting trust only applies where there is insufficient evidence to rebut it on a balance of probabilities ( Pecore v Pecore 2007 SCC 44.

Since the inquiry focuses on the intention of the transferors the state of knowledge of the opposing spouse about the transaction is not determinative ( Tobias v Tobias 2016 BCSC 125 at 42)

The court seized on the unusual fact that the defendants at one point transferred the title to one of the parents finding that such an act was persuasive reliable circumstantial evidence that the plaintiffs did not intend the monies to be a gift.

The defendants also partially repaid the monies and a partial repayment can be evidence that a loan was intended. Kuo v Cho 2009 BCCA 405 at para.9

The court found that the defendants were liable to the plaintiffs on the basis of a resulting trust.

Court Inherent Jurisdiction to Prevent Miscarriage of Justice

In Zant v Zant 2022 BCSC 2023 the Court exercised it’s inherent jurisdiction to prevent an abuse of court and miscarriage of justice.

During temporary covid court rules, an imposter posed as a wife and signed and spoke to a consent order over telephone that settled the wife’s interests for very little.

Evidence came forward one year later that the “wife’ was an imposter”, the real wife brought court proceedings to set aside the consent court order, and the court did so

INHERENT JURISDICTION

The court has inherent jurisdiction to set aside a consent order where there are grounds that would invalidate a contract.

The British Columbia Court of Appeal in Racz v. Mission (District), [1988] B.C.J. No. 19 (C.A.) endorsed the law relating to setting aside a consent order summarized by Fraser and Horn, Conduct of Civil Litigation in British Columbia, Vol. 2 as follows:

[8] The law relating to the setting aside of a consent order is summarized by the editors of Fraser and Horn, Conduct of Civil Litigation in British Columbia, vol. 2 at p. 1064 (January 1985):

27.11 Order Obtained by Consent.

An order entered by consent is in effect an agreement of compromise and such an order may be set aside on any ground which would invalidate a contract. In all other respects the judgment has full force and validity. A separate action must be brought to set aside a final order. Where the order is interlocutory however, a motion may be made to set it aside.
Grounds upon which a consent order may be set aside include lack of authority of counsel, common mistake, fraud, collusion, duress and illegality.

Nichol v. Nichol, 2015 BCCA 278 summarized the inherent jurisdiction of the court in more general terms at para. 28:

[28] Further, the Supreme Court has inherent jurisdiction to prevent miscarriages of justice. As this Court stated in R & J Siever Holdings Ltd. v. Moldenhauer, 2008 BCCA 59, at para. 14:

[14] … In addition to the powers conferred by the Rules of Court, the Supreme Court of British Columbia, as a superior court of record, has inherent jurisdiction to regulate its practice and procedures so as to prevent abuses of process and miscarriages of justice: see I.H. Jacob, “The Inherent Jurisdiction of the Court” (1970) 23 Current Leg. Prob 23 at 23-25. As the author said, at 25,

The inherent jurisdiction of the court may be exercised in any given case, notwithstanding that there are Rules of Court governing the circumstances of such case. The powers conferred by the Rules of Court are, generally speaking, additional to, and not in substitution of, powers arising out of the inherent jurisdiction of the court. The two heads of powers are generally cumulative, and not mutually exclusive, so that in any given case, the court is able to proceed under either or both heads of jurisdiction.

The Annulment Order was also set aside on the basis that it constitutes an abuse of process. There should be no question that it is an abuse of process for a party to secure an order of the court with the assistance of an imposter.