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

Highest Court Encourages Alternatives to Trial

Highest Court Encourages Alternatives to Trial

The Supreme Court of Canada released its decision in Hryniak v. Mauldin (2014 S.C.C. 7, [2014] 1 S.C.R. 87) and encouraged alternative solutions to a trial. In her decision, Karakatsanis, J. called for “a shift in culture” (para. 20). She recognized that the adjudication of… Read more

Adding, Substituting and Removing Parties to an Action

Adding, Substituting and Removing Parties to an Action

Stewart v Stewart 2017 BCSC 1532 also dealt with Rule 6-2 (7) that deals with adding, substituting or removing parties to a court action. Rule 6-2(7)(a) provides: (7) At any stage of a proceeding, the court, on application by any person, may, subject to subrules… Read more

Reasonable Cause of Action Must Be Claimed

Reasonable Cause of Action Must Be Claimed

Stewart v Stewart 2017 BCSC 1532 discussed the law relating to the failure to disclose a reasonable cause of action in the notice of claim, which if upheld by the court  can lead to the dismissal of the claim. 52 The legal framework is well… Read more

Rambling Journal Upheld As NOT a Valid Will

Rambling Journal Upheld As NOT a Valid Will

Re Hadley Estate 2017 BCCA 311 was upheld by the Court of appeal in finding that a rambling journal was not a will that could be “cured” by S 58 WESA. This was the first appeal court decision on Section 58 WESA. Section 58 of… Read more

Independent Legal Advice Necessary

Independent Legal Advice Necessary

Bertolo v Bank of Montreal 1986 CarswellOnt 801, a decision of the Ontario Court of Appeal was one the earlier cases in Canada to support the legal proposition that independent legal advice(ILA) must be present, if in this situation, a bank is to rely upon… Read more

The Proportionality Principle

The Proportionality Principle

Campoli Electric Ltd v Georgian Clairlea Inc 2017 ONSC 4898 commented on the proportionality principle that is emerging in litigation- the quest for a cultural change to best promote the most expeditious and least expensive determination of every proceeding on its merits. Disinherited.com attempts to… Read more

Amending Pleadings

Amending Pleadings

The Law regarding Amending pleadings was discussed in Director of Civil Forfeiture v Sanghera 2017 BCSC 863 where the director applied to amend the notice of claim which was opposed by the defendant. [18]         Mr. Justice Davies clearly set out the law regarding amendments and… Read more

Converting a Petition to an Action

Converting a Petition to an Action

Kent v Kent 2017 BCSC 1392 discussed converting a Petition to an Action when a court action has been commenced by a Petition and becomes mired in the litigation process, usually due to disputed facts, and requires the petition process to be converted to an… Read more

Domicile

Domicile

Sato v Sato 2017 BCSC 1394 discusses in detail the legal issue of domicile. The issue was whether the deceased was domiciled in British Columbia at the time of his marriage to the plaintiff. If so his  2011 Will was revoked by operation of law…. Read more