Shutting Down the Frivolous Vexatious Litigant

Shutting Down the Frivolous Vexatious Litigant

Canada v. Olumide 2017 FCA 42 set out a road map on how to rid the court’s back log of the frivolous and vexatious litigant, albeit with ” dignity and respect.” The Federal Court relied upon s 40 of the Federal Court act but most… Read more

Court May Hear Additional Evidence Before Entry of Order

Court May Hear Additional Evidence Before Entry of Order

Clayton v British American Securities Ltd ( 1934) 3 WWR 257 ( BCCA) upheld  the discretionary  power of a trial judge to hear additional evidence after judgement was pronounced but before the order was entered . At the close of a trial judgment was reserved and after the… Read more

Parens Patriae Jurisdiction of the Courts

Parens Patriae Jurisdiction of the Courts

Re Senini 2016 BCSC 2299 invoked the  the parens patriae  jurisdiction of the courts to declare an adult no  longer incapable of handling her affairs. The parens patriae jurisdiction is  founded on necessity, namely the need for the courts to act for the protection of… Read more

Pleading Particulars of Undue Influence

Pleading Particulars of Undue Influence

Harder v Harder Estate 2017 BCSC 425 discusses the necessity of pleading particulars of allegations of undue influence  so that the defendant can meet the claim and not be taken by surprise at trial. Particulars of Undue Influence [15]        SCCR 3-7 (18) requires that full… Read more

Change of Venue of Trial

Change of Venue of Trial

Harder v Harder estate 2017 BCSC 425 discussed the law relating to changing the venue of trial or interlocutory proceedings from where the action was originally commenced to another city. The defendants in Harder sought an order transferring the proceedings  from Victoria to the Vancouver… Read more

Conflict of Law: "Ordinarily Resident"

Conflict of Law: “Ordinarily Resident”

Cresswell v Cresswell Estate 2017 BCSC 178 dealt with a conflict of law situation and held that the jurisdiction of the BC court should be denied for a wills variation action and held that it should properly be filed under Alberta court jurisdiction as the… Read more

Res Judicata, Cause of Action Estopppel and Merger in Judgement

Res Judicata, Cause of Action Estopppel and Merger in Judgement

Wolverton Securities Ltd v Schemel 2009 BCSC 1048 discusses the concepts of res judicata, cause of action estoppel and merger in judgement and states that the concepts are often used interchangeably in various judgments. The concepts essentially bar a litigant from suing a second time… Read more

Civil Fraud

Civil Fraud

The tort of civil fraud (as opposed to criminal fraud)  was reviewed by the Supreme Court of Canada in Bruno Appliance and Furniture Inc. v Hyrniak 2014 SCC 8  and concluded there are four elements . 18      The classic statement of the elements of civil… Read more

Prohibiting Lawyer From Acting

Prohibiting Lawyer From Acting

Rubin Estate v Rubin Estate 2017 ONSC 1404  dealt with an application of prohibiting Lawyer from acting for her siblings and mother who were being sued by one daughter. The lawyer in question had previously given US tax advise on a ” no names basis”… Read more

Pleading the Tort of Conspiracy

Pleading the Tort of Conspiracy

It occasionally occurs in estate litigation that parties conspire with others to defeat the claims of a party that give rise to a court  pleading of the tort of conspiracy. For example, I recently had a situation where the executor attempted to sell the property… Read more

The Principles of Interpreting a Contract

The Principles of Interpreting Contracts

Dusanjh v Wright Estate 2017 BCSC 340 sets out the law relating to interpreting contracts when there is an ambiguity as to it’s meaning. The children of the deceased brought a petition that argued the deceased had established a trust in their favour and the court… Read more

Non Binding (Precatory) Words In Will Not a Trust

Non Binding (Precatory) Words In Will Not a Trust

Non Binding (Precatory)  words in a will were found not to create a trust that was legally binding on the trustee, but instead that the words were non binding ( precatory) and thus only morally binding an thus an outright bequest. Killam v Killam 2017… Read more

Striking Out a Court Pleading

Striking Out a Court Pleading

A court pleading may be struck out by the Court pursuant to Rule 9-5 ( 1) which states: 1) At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of pleading, petition or other document… Read more

Mental Incompetency and the Patient's Property Act

Mental Incompetency and the Patient’s Property Act

Re Silkstrom 2017 BCSC 206 involved a contested application under the Patient’s Property Act to be appointed the committee of the person of an elderly mental incompetency patient. A Trust company had earlier been appointed to manage the elderly woman’s  financial affairs pursuant to a Power… Read more

Severance of Court Actions Upheld On Appeal

Severance of Court Actions Upheld On Appeal

The Court of Appeal in Johnston v Johnston Estate 2017 BCCA 59 upheld the trial decision found at 2016 BCSC 1388 where an action seeking that a will was invalid, or alternatively if it was valid it should be varied under the wills variation provisions… Read more