Mediation Procedurally Trumps Summary Trial

In an unreported decision Rennie v Rennie Estate et al, Vancouver Registry S148333, Master Taylor decided  to postpone the hearing of a summary trial until a mediation was held between the parties pursuant to a notice to mediate that the plaintiffs had served. The court reviewed the… Read more

Without Prejudice and Blanket Privilege

Settlement negotiations are carried out in the world of litigation by the use of without prejudice offers of settlement that have what is known as blanket privilege in that they should not be disclosed to the court. An exception to this general rule is a… Read more

Summary Trial

Any party can apply under Rule 9 for either judgement in favour  the plaintiff or alternatively that the plaintiff’s claim be summarily  dismissed, all by trial by affidavits rather than “viva voce” evidence. A summary trial is governed by R. 9-7 of the Supreme Court Civil… Read more

Enforcing Settlements

It is not uncommon in estate litigation for the emotions of certain parties to melt down so that it is necessary to take steps for enforcing settlements.   I currently have a case where a settlement was made at a mediation between warring siblings aligned three… Read more

When Does the Limitation Period Commence?

  I am noting more defences to plaintiff’s claims are now pleading that the action has been brought out of time by reason of the limitation date.   Each type of claim has its own limitation date and for the purposes of this blog, I… Read more

Solicitor Client Privilege and the Will File

Solicitor client privilege and the will file can often end up in a tug of war between the executor upholding a claim of privilege after the death of the estate deceased, and beneficiaries who want to see the lawyers notes and other file contents of… Read more

Malice

I was recently  defended a specious counterclaim for damages  alleging the wrongful filing of a certificate of pending litigation that supposedly caused the opposing party damages. In researching the matter. I found the case law to be very clear that in order to succeed with… Read more

Can Mediation be Mandatory?

Can Mediation be Mandatory? In British Columbia once one party to litigation serves  a Notice to Mediate on the other, it becomes mandatory for each party to the lawsuit to “engage in mediation”. Section 23 of the Regulation requires attendance of the parties at a… Read more

Functus Officio – “The Kitchen Is Closed”

Functus officio is a deep rooted legal principle simply meaning that the court has finished with the proceedings, except perhaps as to costs. This was discussed in Naderi v Naderi 2012 BCCA 16 :   Once the trial judgment was entered on February 17, 2011, the… Read more

Special Costs and Reprehensible Conduct

Plecas v Plecas 2015 BCSC 898 contains an excellent summary of special costs, where the court award declined to award  special costs against a plaintiff for suing to set aside transfers of his grandmother’s property outside of her estate to the defendant thus “leading them… Read more

Parol Evidence And Estates

In simple terms the Parol Evidence rule makes inadmissible any evidence of a discussion or understanding between the parties that would alter the form of a written contract between them. To allow such a thing would be to render the written contract meaningless. As Finch… Read more

The Limitation Date For Debt

With the limitation date now being two years for the commencement of a court action to collect a debt, it is now more significant than ever to distinguish if the loan was based on a demand to repay or contingent on repayment. The BC Court… Read more

Admissibility of Out of Court Statements

Admissibility of Out of Court Statements Documents such as diaries, notes, letters and various statements made by witnesses out-of-court, are normally not admissible by reason of hearsay, but may be admissible if adduced for a purpose other than proof of its contents, when it then… Read more

Court Enforces Settlement

Court Enforces Settlement In Trieu v Diep 2015 BCSC 950 the parties settled litigation only to have one of the parties later take the position that there was no settlement made, but the court enforced the settlement by way of a court order. The judge… Read more

A Corporation Is a Distinct Legal Entity

Rohani v Rohani 2004 BCCA 605 , a family law case, has  a good summary of basic company law, starting with a corporation is a distinct legal entity separate from its directors and shareholders.   “It is a basic principle of Canadian company law that… Read more