Independent Legal Advice and Undue Influence

Under normal circumstances independent legal advice, if properly given should be sufficient to rebut any presumption of undue influence, but that was not the case in Cowper-Smith v Morgan 2016 BCCA 200 where the Court of Appeal upheld the trial judge in finding inter alia… Read more

Hearsay Evidence – The Principled Approach

The Courts have generally in recent years allowed the introduction of hearsay evidence stating that it should be done so under a principled approach. It is a fact that most estate disputes when litigated often refer to statements from the grave and what was stated… Read more

Hostile Adverse Witnesses

Jimmy Page of Led Zeppelin fame was called as a hostile adverse witness by the opposing counsel in the opening alleged plagiarism of “Stairway to Heaven” trial.  Rule 12-5 (19) describes an adverse witness aka hostile witness as a “party who is adverse in interest”…. Read more

Expert witnesses

Expert witnesses Once an expert becomes a witness, the expert is then presented to the court as truthful, reliable, knowledgeable and qualified. Rule 11-2(1) makes it clear that an expert has a duty to assist the court and is not to be an advocate for… Read more

Witness Memory Difficulties and Expert Evidence

Witnesses in general on occasion have memory difficulties but where the memory is so lacking as to be unreliable, expert evidence may be admissable to show that a witness suffers from a mental disability which affects his or her ability to testify reliably. The admissible evidence… Read more

Document Production Litigation

Document production in litigation in BC is now under the new rules in effect since 2010 to initially only producing documents necessary to prove a material fact. The new rule for production of documents was discussed in Biehl v Strang 2010 BCSC 1391 Rule 7-1(1)… Read more

Litigation Loans

The spiralling costs of litigation has led to an increasing number of litigants and lawyers  having to seek litigation loans to fund the court case. It is not unheard of for personal 9njury lawyers to have a million dollars in out of pocket disbursement a… Read more

Setting Aside a Default Judgement

Miracle Foods v. D&H Enterprises Ltd.  1979] B.C.J. No. 1965, 10 B.C.L.R. P 58. Establishes a four part test for setting aside a default judgement. A default judgement is obtained when the plaintiff properly serves a defendant with a Petition or a Notice of Claim… Read more

Contempt of Court

Many years ago I brought on contempt of court proceedings in a matrimonial proceeding that resulted in what I would categorize as a waste of time and money. There are exceptions of course, but   in my opinion, since  the proceedings are  quasi- criminal  in the burden… Read more

Adverse Inference

Bronson v Hewitt 2010 BCSC 169 reviewed the law of adverse inference, which probably is not utilized as much by counsel as they could. It typically arises when a key witness who would normally be expected to testify, does not. Adverse Inference [323] The plaintiffs… Read more

The Bogus Expert

A bogus expert was recently discussed in a sexual assault appeal,  JP v BG 2016 BCCA 91 , when the Court labelled a bogus expert report as a” fraud on the court”. The so called expert was in fact a recipient of a “diploma mill” and… Read more

Adverse Possession

Mowaqtt v BC Attorney general 2016 BCCA 113 dealt with a long established principle of  adverse possession  relating to  squatters long time  use of  property that had  escheated to the crown .  A claim of squatters to  legal entitlement to a parcel of property  occasionally occurs… Read more

Loan or Gift?

In family environments it is often very difficult or near impossible for third parties such as a court to easily determine if that parental advancement of funds used to buy their child’s new family home was a loan or a gift.   From the parent’s… Read more

Consolidation of Court Actions

Consolidation of Court Actions It is not uncommon that two estate cases are commenced at the same time that relate to the same estate, and in such situations an order is often made for consolidation of the court actions or alternatively, that they be heard… Read more

Court Removal of Counsel

Court applications are occasionally made to remove the opposing counsel for various reasons ranging from litigation tactics to outright conflict of interest. The following are two cases where this was argued and both discuss the cautious approach that the courts should take in considering such… Read more