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.

Gifts to Witnesses: S. 43 WESA

Gifts to Witnesses: S. 43 WESA

Witnesses of a will and declares that such gifts are void, unless the court is satisfied that the will maker intended to make the gift to the person even S. 43 of  WESA governs the issue of gifts to though the beneficiary or his or her spouse was a witness to the will.

43 (1) Unless a court otherwise declares under subsection (4), a gift in a will is void if it is to

(a) a witness to the will-maker’s signature or to the spouse of that witness,
(b) a person signing the will by the will-maker’s direction, or the spouse of the person signing, or
(c) a person claiming under a person, other than the will-maker, referred to in paragraph (a) or (b).
(2) For the purposes of subsection (1), the relevant time for determining whether one person is the spouse of another is the time when the will was made.
(3) If a gift is void under subsection (1), the remainder of the will is not affected.
(4) On application, the court may declare that a gift to a person referred to in subsection (1) is not void and is to take effect, if the court is satisfied that the will-maker intended to make the gift to the person even though the person or his or her spouse was a witness to the will.
(5) Extrinsic evidence is admissible for the purposes of establishing the will-maker’s intention under subsection (4).

An express gift to an adult child would not be invalidated if their parent is a witness. It is only a witness or spouse of a witness whose gift gets invalidated.

It is likely that a statement of such intention in the will itself would provide adequate evidence of that intention to satisfy a court to declare the gift valid.

Suspicious Circumstances

Suspicious Circumstances

Arauju v Neto 2001 BCSC 935 is an undue influence lack of capacity case that discusses suspicious circumstances.

The court found that due to suspicious circumstances the will maker was not allowed to rely upon the presumption that he was mentally capable when the will was executed.

Ordinarily where the propounder of a will shows that it was duly executed with the requisite formalities and after having been read over to a testator who appeared to understand it, it is presumed that the testator knew and approved of the contents and had the necessary testamentary capacity or disposing mind and memory.

[122] However, I do not think that the plaintiff is entitled to that presumption. Because of the evidence of suspicious circumstances, the plaintiff has the burden of establishing on the evidence that Mr. De Araujo knew and approved of the contents and had testamentary capacity with respect to both of the 1995 and 1996 wills.

[123] The suspicious circumstances in the case of the 1995 will include:

1.the poor health of the aged testator;

2. the removal of the testator from a home where he had lived for a lengthy period;

3. the fact that the testator was taken almost directly from his place of residence to a lawyer to give instructions;

4. the lengthy period of separation from Carlos;

5. the person directly benefiting from the will; the dramatic change from the previous will;

6. the fact that the testator had a substantial amount of cash on him;

7.and significantly the fact that his proposed beneficiary (a person from whom he was estranged for over five years) gave the relevant instructions to the lawyer.

Gift of House Upheld Trust

Gift of House Upheld Trust

Franklin v Cooper 2016 BCCA 447 upheld a decision of the Supreme Court that the presumption of resulting trust applied and that the defendant daughter who received gift of house by her mother in joint tenancy, instead held the house in trust for the estate of their mother.

The facts found by the court of appeal were:

In 1989, the deceased transferred title to her home to herself and Ms. Cooper as joint tenants. The deceased died on June 30, 2012, and Ms. Cooper took sole title to the property by survivorship. Ms. Cooper took the position that the 1989 transfer was under an agreement. She claimed that it was in consideration of expenses Ms. Cooper had paid for in the past, and also in consideration of a promise to pay for expenses in the future. Ms. Cooper says that she agreed to support her mother, and to ensure that she was never placed in a nursing home.

[3] Ms. Franklin denied the existence of any such agreement. She contended that her mother’s decision to place the property in joint title was primarily to prevent her mother from being defrauded into transferring title away to a third party. She gave evidence to the effect that she had been offered the opportunity to go on title, herself, but that the offer was contingent upon her dissolving her marriage, as her mother also wanted to ensure that Ms. Franklin’s husband would not gain any matrimonial interest in the property.

[4] There were a number of issues at trial. The trial judge ultimately found that the 1989 agreement contended for by Ms. Cooper did not exist. She found the transfer of the home into joint tenancy to be a gratuitous transfer, and applied Pecore v. Pecore, [2007] 1 S.C.R. 795, holding that there was a presumption that the transfer was not a gift, and that Ms. Cooper held her interest in trust for her mother during her mother’s life, and now holds it in trust for her mother’s estate.

[5] The judge recognized that the issues before her turned largely on findings of credibility:

[6] The evidence of Ms. Franklin and Ms. Cooper is conflicting in virtually every aspect. Both present diametrically opposing pictures of their mother’s life, her needs and wants, and their relationships with their mother and each other. Accordingly, the resolution of this case will depend largely on findings of credibility.

Funeral Service

Funeral Service

It is surprisingly common for loved ones of a deceased person to argue or even litigate over the funeral service and disposition of the remains of a deceased person.

One of the leading cases in BC is Kartsonas v Kartsonas Estate 2010 BCCA 336 where the children of the deceased and a niece had joint custody of the deceased’s funeral.

The children wanted a religious service and the niece disagreed arguing the deceased was an atheist at the time of his death.

The children succeeded at both the Supreme Court and the Curt of Appeal whom ordered that the children have responsibility for the funeral and disposition of his remains. 

Section 5(1) of the Cremation, Interment and Funeral Services Act, S.B.C. 2004, c. 35, sets out the order of priority of persons to control the disposition of the remains of a deceased person.

The first priority is given to the personal representative named in the will of the deceased.

The next following priorities are given to the spouse of the deceased and the adult children of the deceased.

Section 5(4) of the Act authorizes an application to be made by a person claiming that he or she should be given the sole right to control the disposition of the remains of a deceased person, a s. 5(6) provides that if such an applicant is successful, he or she is deemed to be at the top of the order of priority

Section 5(5) of the Act provides direction to the court in hearing an application under s 5(4). It reads as follows:

(5) When hearing an application under subsection (4), the Supreme Court must have regard to the rights of all persons having an interest and, without limitation, give consideration to

(a) the feelings of those related to, or associated with, the deceased, giving particular regard to the spouse of the deceased,

(b) the rules, practice and beliefs respecting disposition of human remains and cremated remains followed or held by people of the religious faith of the deceased,

(c) any reasonable directions given by the deceased respecting the disposition of his or her human remains or cremated remains, and

(d) whether the dispute that is the subject of the application involves family hostility or a capricious change of mind respecting the disposition of the human remains or cremated remains.

11      Clause (c) of s. 5(5) provides that reasonable directions given by the deceased person are to be taken into account on an application under s. 5(4). However, I note that the deceased’s wishes are not determinative and are only one factor to be taken into account by the court.

The wishes of a deceased person as to the nature of his or her burial can be made binding on the person with conduct of the disposition of the deceased’s remains if they are expressed in his or her will or other document that complies with the requirements of s. 6 of the Act. In the present case, Mr. Kartsonas expressed a preference in his will and his representation agreement as to who should have conduct of the disposition of his remains but his preference for a non-religious funeral was not contained in a document complying with s. 6.

Dementia disease

Dementia disease

An epidemic of dementia disease is predicted to occur within the next 15-20 years.

The most common types of dementia disease such as Alzheimers, frontotemporal dementia, vascular dementia, and Lewy Bodies are expected to dramatically increase by %50  over the next 15 -20 years as our population ages. Dementia is often present in various estate disputes such as lack of mental capacity when signing a will or power of attorney.

The implications of a dementia are substantial for the patient and extremely far-reaching, not only for the patient, but also for the family.
Family members often assume the role of caregivers or guardians, which can be a complete role reversal from previous years.
It is important to remember that patients with dementia usually do not fully understand their diagnosis, prognosis, and treatment options. The family members must be trained regarding the patient’s safe housing and  care.
Because of the lack of personal insight, the demented person may not fully understand that certain activities will no longer be safe for them to do, such as driving or using power tools.
Behavioral problems such as agitation or aggression are often common in patients with dementia, and  can  cause burnout amongst family members who are burdened with their care.

Alzheimers is perhaps the most well known type of dementia but several types of dementia exist.

By definition a dementia constitutes impairment of at least one dominant domain of cognitive function ( such as abstract thought, executive functioning, language, or visual/spatial skills) that results in daily activity  impairment. The diagnosis of dementia requires the exclusion of other cognitive impairments such as delirium and depression.

Many seniors are affected by depression and the cognitive effects of depression can vary in scope and severity and may ultimately result in dementia, but its effects can often be reversed. Dementia and depression often frequently co -concur in seniors.

There is both cortical and sub cortical dementia. Cortical dementias are typically progressive and degenerative and ten to be associated with impaired language skills ( aphasia), perception, reasoning, problem solving, and recall.

By contrast sub cortical dementias  may be  progressive, static or reversible and are associated with cognitive slowing, emotionality, such as apathy or depression, and deficits in attention, arousal, and processing speed.

Alzheimers

Alzheimer disease is the most common type of dementia that affects approximately 1/3 of persons aged 85 years or older in the United States.
One of its telltale characteristics a short term memory loss, coupled with impaired judgment, confused or vague speech, and poor insight.
The aspect of poor insight commonly causes patients to think there is not much  wrong with their memory or health as their social skills are often preserved with patients often being described as “pleasantly confused”.
As the disease progresses, however the patient often exhibits changes in personality, agitated behavior or both.
The typical disease course from symptom onset to death is 6 to 9 years.

Dementia with Lewy Bodies

The disease typically occurs between the ages of 50 and 60 years and is slightly more common in men.
The disease presents with a cognitive profile marked by prominent impairment of attention, Visuospatial functioning and executive function.
The patient typically is more demented in his or her attention spatial ability rather than the prominent short-term memory loss of Alzheimer’s disease.
Visual hallucinations may also occur.

Frontotemporal Dementia

This is the third most common form of dementia, whose onset most commonly occurs between ages 50 and 60 years, but can be 15 years earlier or 15 years later.
The most striking feature that brings the patient to clinical attention is a notable personality change with poor insight.
The behavior is typically impaired social conduct, poor impulse control, sexually inappropriate comments or behaviors, in violation of interpersonal space.
Depending on where the disease occurs in the frontal lobes, the behavior can also manifest itself as passivity, poor personal hygiene and mimicking behaviors.
This type of dementia rapidly progresses over a 5 to 10 year course.

Vascular Dementia Disease

After Alzheimer’s, vascular dementia is the second most common type of dementia, accounting for 10 to 50% of all cases of dementia among adults 65 years or older. It is often referred to as cognitive impairment caused by strokes or mini strokes.
Impairment in vascular dementia ranges in its severity and type depending on the degree of tissue damage to the small blood vessels.
Hypertension and diabetes are significant risk factors that can lead to vascular dementia.

Dementia Due to Parkinson Disease

 Patients with Parkinson disease can develop slowly progressing dementia that usually occurs in the latter stages of the disease, typically about 10 years after its onset.
For patients with dementia due to Parkinson disease, the incidence of dementia it will increase with the greater physical impairment, and the dementia is more pronounced when rigidity is the most prominent  symptom and less pronounced when tremor is the most prominent symptom.
The cognitive profile is notable for predominant executive dysfunction as well as impairment in them in attention and memory.
Approximately 1/3 of Parkinson patients will develop this dementia, which will increase to almost 50% after 15 years from the initial onset of Parkinson disease.

The Law of Mistake

The Defence of Mistake

Teather v Kawashima 2016  BCSC  2231 involved litigation where the defence of mistake was argued and the Court reviewed the law.

When parties are negotiating a contract it may occur that  one party is thinking of one thing while the other party is thinking of another. This will result in a mistake and when that occurs, one of the parties may  attempt to vitiate the contract.

I have seen this occur when negotiating a settlement at a mediation- the parties were mistaken as to the terms of what was intended to be contained in the settlement, and one party sued to vitiate the settlement. There are three types of mistake in law, common, mutual and unilateral

THE  LAW  OF MISTAKE

As to the distinction between the types of mistake giving rise to vitiation of the underlying contract, in whole or in part, Prowse, J.A. adopted the following summary from Ron Ghitter Property Consultants Ltd. v. Beaver Lumber Co. (2003), 17 Alta. L.R. (4th) 243 (C.A.) at paras. 12 — 13:

12. There are three types of mistake: common, mutual and unilateral: see Cheshire, Fifoot & Furmston, Law of Contract, [14th ed. (London: Butterworths, 2001)], supra, at 252-53 for a summary of each.

Common mistake occurs when the parties make the same mistake. For example, one party contracts to sell a vase to another when unbeknown to both, the vase was destroyed and no longer exists. 

Mutual mistake occurs when both parties are mistaken, but their mistakes are different. In this event, the parties misunderstand each other and are, to use the vernacular, “not on the same page”.  

Unilateral mistake involves only one of the parties operating under a mistake. If the other party is not aware of the one party’s erroneous belief, then the case is one of mutual mistake but if the other party knows of it, of unilateral mistake. What adds to the confusion is that the distinction between mutual and common mistake is sometimes blurred when courts use the two terms interchangeably. 

13. The presence or absence of an agreement is one of the foundational differences amongst the three types of mistake. With common mistake, the agreement is acknowledged. What remains to be determined is whether the mistake was so fundamental as to render the agreement void or unenforceable on some basis.

But in the case of a mutual or unilateral mistake, the existence of an agreement is rejected. As explained in Cheshire, Fifoot & Furmston, supra at 253: 

Where common mistake is pleaded, the presence of agreement is admitted. The rules of offer and acceptance are satisfied and the parties are of one mind. What is urged is that, owing to a common error as to some fundamental fact, the agreement is robbed of all efficacy. Where either mutual or unilateral mistake is pleaded, the very existence of the agreement is denied. The argument is that, despite appearances, there is no real correspondence of offer and acceptance and that therefore the transaction must necessarily be void.

“Survive By Five Days”

"Survive By Five Days"

S  10 of WESA provides for when a person does not survive a deceased person by five (5) days or longer when provided for in an instrument(  ie a will) is conclusively deemed to have died before the deceased persona for all purposes and thus will not inherit.

Todoruk v BC Land Title and Survey Authority 2016 BCSC 2241 when a married couple of 67 years died when one died on January 12 and the other died on January 17.

The issue before the court was the interpretation of the words ” survive by five days.”

[2]          The calculation of time is addressed in the Interpretation Act, R.S.B.C. 1996 c. 238 [Acf. Sections 25(1), (4) and (5) say as follows:

(1) This section applies to an enactment and to a deed, conveyance or other legal instrument unless specifically provided otherwise in the deed,  conveyance or other legal instrument.

(4)           In the calculation of time expressed as clear days, weeks, months or years, or as “at least” or “not less than” a number of days, weeks, months or years, the first and last days must be excluded.

(5)           In the calculation of time not referred to in subsection (4), the first day must be excluded and the last day included.

IF the court found that the second spouse survived the first spouse to die then her share passed to the husband. If it was found that she did not survive the husband by five days then her estate would be considered as tenants in common with his estate.

The court held that the second to die did in fact survive the first to die by five days, and that s 10 WESA  does not state clear days

Therefor the first and last days are included and amount to five days.

The reasoning followed a previous case interpreting survive by thirty days Re Day Estate 1982 BCJ 1288 which also said that part days are not to be counted.

Wills Variation-Abuse and Neglect

Abuse, Neglect and Wills Variation

In my four decades of experience most wills variation claims  bring with them an individual or even sibling collective  story of abuse, neglect, and  other dysfunctions that result in a disinheritance to top it all off.

It is settled law that the wills variation act ( now s. 60 WESA) was not intended to award damages for abuse, neglect or other bad behavior on the part of the deceased.

The evidence of such is admissible in evidence and the judge has a broad discretion to make an appropriate award. A sympathetic judge can increase the award of the wills variation while at the same time stating damages cannot be awarded for bad behavior. (It is called doing indirectly what one cannot do directly and occurs all the time in legal judgements but that is a secret)

The case of Persall v Stromberg 2015 BCSC 1826 reviewed the law re mistreated disinherited adult children.

77      Further, even if proven, the law would not support an award to the plaintiffs in their circumstances. If a judge does find a link between a deceased parent’s neglect or mistreatment of a disinherited child and the child’s lack of progress in life and their current diminished financial circumstances, it may make an award if a judicious parent, after objective reflection, would recognize a moral obligation to make amends for neglect or mistreatment through the provisions of their will: Doucette v. Doucette Estate, 2009 BCCA 393 (B.C. C.A.) [Doucette].

78      Generally, where an adult child complains of an unhappy relationship with or neglect of the parent, the summary of the cases between p. 19-50 and 19-51 of the Practice Manual, indicate a range of responses determined by the circumstances in the case. In Gray v. Gray Estate, 2002 BCCA 94 (B.C. C.A.) [Gray], the court found that the will-maker’s neglect of a child may be relevant in determining whether a moral duty is owed to the child.

79      In Brauer v. Hilton, [1979] B.C.J. No. 2128 (B.C. C.A.), the Court of Appeal held that testator’s treatment of the children while in the home was not a proper basis for exercising the discretion granted to the court by the statute.

80      In Gray, the will-maker’s neglect was financial and emotional. The appellant, the disinherited child, testified at para. 11:

I did not go out of my way to establish a relationship with the Deceased because I could not see that he was interested in one. He had shown no interest in me while I was a child. When we finally did establish contact, he tried to take advantage of me financially. I feel the Deceased made no effort to have a relationship with me, to provide for me, to act as a father should act towards his child.

81      Further in Gray at para. 17, Justice Donald stated:

[17] I cannot accept that a child so neglected for his first 18 years and then treated shabbily during a brief reconciliation can be said to forfeit the moral claim to a share in his father’s estate by abandoning any further effort to establish a relationship. The fault in this sad story lies with the father and, in my opinion, the onus to seek further reconciliation was on his shoulders. The testator gave the appellant virtually nothing in an emotional or material way; the will was his last opportunity to do right by his son.

82      In Doucette at para. 71, Madam Justice Ryan noted:

[71] It is common ground that the Wills Variation Act is not intended as a means of awarding compensation for family abuse, but as recognized in Sawchuk v. MacKenzie Estate, 2000 BCCA 10, 72 B.C.L.R. (3d) 333 at para. 16, where a parent has treated a child unfairly, a judicious parent, after objective reflection, would recognize a moral obligation to make amends for it through the provisions of his or her will. In my view that is all that the trial judge was doing in this case.

83      In Scott-Polson v. Lupkoski Estate, 2013 BCSC 247 (B.C. S.C.), aff’d 2013 BCCA 428 (B.C. C.A.), Justice Sewell of this court concluded that a child’s allegation of sexual and verbal abuse by a stepparent is not a proper ground to vary the parent’s will. At paras. 85 – 86, he explained:

[85] I have also concluded that the abuse testified to by the plaintiffs is not a proper ground to vary the Will. This is made clear in the decision of Boyd J. of this court in W.G. Estate v. T.G., [1998] B.C.J. No. 2369 at para. 79 as follows:

79 I have made no special additional awards to any of the children on the basis of any moral obligations. By virtue of the testator’s difficult personality, all of the testator’s children experienced relatively dysfunctional childhoods. The first family essentially complain they were financially, if not emotionally deprived and abandoned, following their parents’ divorce. S.G. maintains that he was both physically and sexually abused. While his evidence was extremely disturbing I make no finding concerning his credibility. Even assuming the truth of his allegations, the result remains unaffected. A wills variation action is not a vehicle to redress any past wrongs nor to notionally award damages to an aggrieved claimant who suffered ill treatment at the hands of the testator (Brauer v. Hilton, (1979) 15 B.C.L.R. 116 (B.C.C.A.)

[86] The WVA should not be used as a vehicle to award damages for past bad behaviour on the part of the testator, although it is of course quite legitimate to take the circumstances of a child or spouse into account and in so doing consider whether those circumstances arose as a result of some behaviour of the testator that might give rise to a moral claim. In this case I can find no sufficient evidence of a link between Rosemary’s treatment of her children and any adverse circumstances in which they find themselves. 

Chain of Executorship When Executor Dies

Chain of Executorship When Executor Dies

The chain of executorship when the executor dies before finishing his or her  duties  refers to where probate has been taken by an executor who survives the original testator, the right of such executor to a grant of probate does not cease and the representation to and the administration of the testator’s estate devolves to his executor. Re Aikins Estate (1963) 41 W.W.R. 226, at 227

4      Re Aikins Estate (1963) 41 W.W.R. 226, a decision of Friesen, Surr. Ct. J., where that learned judge gave a careful decision in a similar matter and refused the order. In his reasons, Friesen, Surr. Ct. J., at p. 227, quoted from Macdonell & Sheard’s Probate Practice at p. 113 as follows:

‘… if a sole executor, or the survivor of several executors, having proved the will, dies without having completed the administration of the estate, his executor when he proves the will becomes the executor of the original testator. It is only an executor who has proved the will who can transmit the executorship, and, therefore, if the executor named predeceases the testator or dies without having taken probate there must be an administration.’

One of the leading cases on the topic in British Columbia is O’Gorman Estates (1965)  51 WWR 762