Reconsideration

Reconsidering a Previous Court Order

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

Document disclosure and production

Document Disclosure and Production

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

adjourn

Adjournment of Trials

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

Converting petition to action

Converting a Petition to an Action

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

Impeaching Witness Credibility

Impeaching Witness Credibility

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

Enforcing/Interpreting Settlements

Enforcing/Interpreting Settlements

Walsh v Walsh 2018 BCSC 199 deals with an application to interpret or give effect to a settlement agreement, that unfortunately the parties could not ultimately agree upon. While lawyers typically strive to settle court actions, as well as have an ethical duty to do… Read more

Contesting Estate Legal Fees

Contesting Estate Legal Fees

Beneficiaries of an estate ordinarily have standing to contest legal bills if an executor seeks to be indemnified for the lawyer’s bill from the estate. See Chute Estate 2014 BCSC 344. The decision Re Sangha 2018 BCSC 54 was such a situation, and the registrar… Read more

Enforcing Settlement Agreements

Probably most litigation lawyers have experienced the situation where a settlement is made on behalf of their client who then subsequently changes his or her mind. I have found this to have occurred on several occasions in recent years after a mediation of many hours… Read more

Jury Trials

Jury Trials

Rule 12 – 6 sets out nine types of court actions that cannot be heard by a jury. A few of them are the administration of the estate of a deceased person, the dissolution of a partnership, foreclosure actions ,partition of property, custody and guardianship… Read more

certificate of pending litigation cpl 2

Certificates of Pending Litigation (CPL) – Cancellation

Xie v Lai 2017 BCSC 2035 involved an application to cancel a certificate of pending litigation and the law re same was reviewed. The Legal Framework 31 The legal framework respecting the cancellation of CPLs was set out in Jacobs v. Yehia, 2015 BCSC 267…. Read more

DRAFTING ERRORS AND THE RULE IN SAUNDERS V. VAUTIER

DRAFTING ERRORS AND THE RULE IN SAUNDERS V. VAUTIER

Will and court order drafters should be aware of the rule in Saunders v. Vautier, (1841) 41 E.R. 482), a decision of the English courts of equity from 1841. The rule occasionally comes to my attention when a will attempts to make a bequest to… Read more

Rectification of a Document

Rectification of a Document

Re McDonald Bankruptcy 2017 BCSC 1957 deals with an attempt to rectify  the terms of a written agreement in a bankruptcy proceeding. The court refused to do so based on the following legal rationale. 103      In Snell’s Equity, (32nd ed., 2011) in the first supplement… Read more

Adjournment of a Trial

For a number of reasons it is sometimes necessary to seek an adjournment of a scheduled trial. 38      The adjournment of a trial is a discretionary matter. This discretion must be exercised in accordance with the interests of justice. There are a number of considerations… Read more

Partial Summary Trial Rebuked

Partial Summary Trial Rebuked

The Ontario Court of Appeal has issued a warning to lawyers that they should only bring partial summary judgment motions in the clearest of cases. In a recent judgment in Butera v. Chown, Cairns LLP,2017, the court allowed a $5-million negligence action brought against a… Read more

Summary Judgement Principles

Summary Judgement Principles

Summary Judgment Principles were discussed in Winter v Sherman 2017 ONSC 5492 [25]           Summary judgment is available where there is no genuine issue for trial: Hyrniak v. Mauldin, 2014 SCC 7 (CanLII), 366 D.L.R. (4th) 641, at para. 34. [26]        … Read more