Adding Defendants

Stewart v. Stewart  2016 BCSC 1576 was a contested application for adding defendants to a court action commenced by one of four children to wind up a trust.   The application to add the remaining three children as defendants was opposed on the basis that… Read more

Leave to Appeal

The legal test for leave to appeal was restated in Ho Estate v. Ho 2016 BCCA 253 , upheld at 2016 BCCA 378, where the decision of one appeal judge was upheld by a panel when he refused leave to appeal on the basis that… Read more

Mandatory Injunctions – Harm Must Probably Occur

McLean v. Law Society of British Columbia 2016 BCCA 368 reviewed the law on injunctions and held that the court should only grant a mandatory injunctions when the harm complained of would probably occur.   [17]        Both declarations and injunctions, speaking as they do… Read more

Gift or Loan?

It is often difficult for the court to determine if advancements of funds from one party to another done orally and without witnesses is a gift or loan. Rosas v. Toca 2016 BCSC 1754 dealt with such a situation. The plaintiff won over $4 million in… Read more

Judgement Does Not Sever Joint Tenancy

The registration of a judgement against one owner of a jointly owned property does not sever joint tenancy. If the only asset owned by the judgement debtor is the joint tenancy property, then registration of the judgment against the interest of the debtor will not… Read more

Deceased Assets Vest In Executor

A deceased person’s assets vest in his or her executor or administrator after death. If an executor is removed or renounces the new executor/trustee then holds the assets in trust as they now vest with the new executor/trustee. Browne v Browne Estate 2015 BCSC 28,… Read more

Pleadings

The Public Guardian and Tristee for BC v Johnston 2016 BCSC 1388 discusses the requirements of proper pleadings and when the Court may intervene to strike out , stay the proceedings, or amend the pleadings of a party. An application was brought under Rule 9-5… Read more

Adding a Party to an Action

Stewart v. Stewart 2016 BCSC 1576 dealt with an application to adding a party to an action under  Rule 6-2(7)(b) and (c) of the Supreme Court Civil Rules, B.C. Reg. 168/2009. The applicants were beneficiaries under two  trusts settled by the deceased. The total value of… Read more

What is a Discretionary Trust?

The BC Court of Appeal in Putzki v Saunders 2016 BCCA 344 examined the nature of a family property trust and discussed what is a discretionary trust. A discretionary trust is commonly used in estate planning often  when dealing with infants, disabled people on a government… Read more

What Is a Trust?

Society of Notaries Public Bc v The Law Society BC 2016 BCSC 1558 provides a definition of what is a trust that has been approved by innumerable courts. What Is a Trust? In Waters’ Law of Trusts in Canada (4th ed. Waters, Gillen and Smith,… Read more

A History of Constructive Trust

The BC Court of Appeal in BNSF Railway v Teck Metals Ltd 2016 BCSC 350 the court delivered the following brief summary of the history of constructive trust as an equitable remedy: Constructive trust. Academic writers seem to agree that this type of trust developed… Read more

Claim Dismissed For No Standing

Re Tomlinson Estate 2016 BCSC 1223 dealt with a nephew contesting his aunt’s will when he was neither a named beneficiary under the will or an intestate heir had his claim dismissed for lack of standing. Standing is a pre-requisite to advancing claims regarding a… Read more

Quantifying Special Costs and Contingency Fees

Norris v Burgess 2016 BCSC 1451 stated the law for quantifying special costs and then applied that amount towards the plaintiff’s contingency fees. Norris was an ICBC case where the judge in a Jury trial found fault on the insurer for the late production of… Read more

Settlement Offers and Court Costs

Norris v Burgess 2016 BCSC 1451 deals with settlement offers and court costs, that is how courts adjust cost upwards or downwards either in favour of one party or against the other party depending on the parties conduct and the terms of any formal offers… Read more

Severance of Court Actions

Severance of Court actions joined together may occur in civil litigation.   The Public Guardian and Trustee for BC v Johnston 2016 BCSC 1388 has an excellent review of the law as to when the courts will order that court actions be severed from the… Read more