Category: Probate Litigation

Anonymization and Publication Ban Orders

Anonymization orders and publication bans are exceptional orders and that several competing interests must be balanced by the judge hearing such an application.

These competing interests were considered at length in the leading case of Sherman Estate v. Donovan, 2021 SCC 25. Sherman Estate

In the Supreme Court of Canada decision of Sherman Estate, the court considered whether a sealing order should be granted with respect to a probate file on grounds of privacy.

The Reasons for judgement stated:

[1) This Court has been resolute in recognizing that the open court principle is protected by the constitutionally entrenched right of freedom of expression and, as such, it represents a central feature of a liberal democracy. As a general rule, the public can attend hearings and consult court files and the press — the eyes and ears of the public — is left free to inquire and comment on the workings of the courts, all of which helps make the justice system fair and accountable.

[2] Accordingly, there is a strong presumption in favour of open courts. It is understood that this allows for public scrutiny which can be the source of inconvenience and even embarrassment to those who feel that their engagement in the justice system brings intrusion into their private lives. But this discomfort is not, as a general matter, enough to overturn the strong presumption that the public can attend hearings and that court files can be consulted and reported upon by the free press.

[3] Notwithstanding this presumption, exceptional circumstances do arise where competing interests justify a restriction on the open court principle. …

[7] With respect to limitations on court openness, as stated at para. 38:

[38] The test for discretionary limits on presumptive court openness has been expressed as a two step inquiry involving the necessity and proportionality of the proposed order (Sierra Club, at para. 53). Upon examination, however, this test rests upon three core prerequisites that a person seeking such a limit must show. Recasting the test around these three prerequisites, without altering its essence, helps to clarify the burden on an applicant seeking an exception to the open court principle.

In order to succeed, the person asking a court to exercise discretion in a way that limits the open court presumption must establish that:

(1) court openness poses a serious risk to an important public interest;
(2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,
(3) as a matter of proportionality, the benefits of the order outweigh its negative effects.

Only where all three of these prerequisites have been met can a discretionary limit on openness — for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order — properly be ordered. This test applies to all discretionary limits on court openness, subject only to valid legislative enactments …

[8] As the court noted at para. 31, privacy can in some circumstances ground an exception to the openness principle. However, some degree of privacy loss resulting in inconvenience and even upset or embarrassment is inherent in any court proceeding open to the public. The question of when a privacy interest is sufficient to give rise to an exception to court openness is discussed at para. 33:

[33] Personal information disseminated in open court can be more than a source of discomfort and may result in an affront to a person’s dignity. … Dignity in this sense is a related but narrower concern than privacy generally; it transcends the interests of the individual and, like other important public interests, is a matter that concerns the society at large. A court can make an exception to the open court principle, notwithstanding the strong presumption in its favour, if the interest in protecting core aspects of individuals’ personal lives that bear on their dignity is at serious risk by reason of the dissemination of sufficiently sensitive information. The question is not whether the information is “personal” to the individual concerned, but whether, because of its highly sensitive character, its dissemination would occasion an affront to their dignity that society as a whole has a stake in protecting.

[63] Specifically, in order to preserve the integrity of the open court principle, an important public interest concerned with the protection of dignity should be understood to be seriously at risk only in limited cases. Nothing here displaces the principle that covertness in court proceedings must be exceptional. Neither the sensibilities of individuals nor the fact that openness is disadvantageous, embarrassing or distressing to certain individuals will generally on their own warrant interference with court openness … These principles do not preclude recognizing the public character of a privacy interest as important when it is related to the protection of dignity. They merely require that a serious risk be shown to exist in respect of this interest in order to justify, exceptionally, a limit on openness, as is the case with any important public interest under Sierra Club. As Professors Sylvette Guillemard and Séverine Menétrey explain, [translation] “[t]he confidentiality of the proceedings may be justified, in particular, in order to protect the parties’ privacy . . . . However, the jurisprudence indicates that embarrassment or shame is not a sufficient reason to order that proceedings be held in camera or to impose a publication ban” (Comprendre la procédure civile québécoise (2nd ed. 2017), at p. 57).
[11] At paras. 73-76, Justice Kasirer concluded that:
[73] I am accordingly of the view that protecting individuals from the threat to their dignity that arises when information revealing core aspects of their private lives is disseminated through open court proceedings is an important public interest for the purposes of the test.
[74] Focusing on the underlying value of privacy in protecting individual dignity from the exposure of private information in open court overcomes the criticisms that privacy will always be at risk in open court proceedings and is theoretically complex. Openness brings intrusions on personal privacy in virtually all cases, but dignity as a public interest in protecting an individual’s core sensibility is more rarely in play. Specifically, and consistent with the cautious approach to the recognition of important public interests, this privacy interest, while determined in reference to the broader factual setting, will be at serious risk only where the sensitivity of the information strikes at the subject’s more intimate self.

[75] If the interest is ultimately about safeguarding a person’s dignity, that interest will be undermined when the information reveals something sensitive about them as an individual, as opposed to generic information that reveals little if anything about who they are as a person. Therefore the information that will be revealed by court openness must consist of intimate or personal details about an individual …

[76] The test for discretionary limits on court openness imposes on the applicant the burden to show that the important public interest is at serious risk. Recognizing that privacy, understood in reference to dignity, is only at serious risk where the information in the court file is sufficiently sensitive erects a threshold consistent with the presumption of openness. This threshold is fact specific. …

[12] The question of whether a serious risk to a privacy interest, sufficiently sensitive to strike at an individual’s biographical core, is made out is a case specific matter to be determined in the full factual context of the case: Sherman Estate at para. 79.
Issue

Adverse Inferences

656621 BC Ltd v David Moerman Painting 2022 BCSC 1683 discussed the adverse inference discretionary rule of evidence that permits the Court to draw an adverse inference against a party by reason of his or her failure to call a witness who could be expected to give material evidence in their favour at trial: Singh v. Reddy, 2019 BCCA 79 at para. 1 [Singh]; Thomasson v. Moeller, 2016 BCCA 14 at para. 35

The adverse inference rule is discretionary, and a trial judge is not obliged to draw an adverse inference: Singh at para. 9; Thomasson at para. 34.

An adverse inference is not to be drawn unless a prima facie case is established: Thomasson at para. 35; Cranewood v. Norisawa, 2001 BCSC 1126 at para. 127 [

In Singh, the Court of Appeal endorsed the following considerations listed in A. W. Mewett and P.J. Sankoff’s Witnesses (loose leaf) as relevant for consideration in determining whether it is appropriate to draw an adverse inference:
• whether there is a legitimate explanation for the failure to call the witness;
• whether the witness is within the “exclusive control” of the party, and was not “equally available to both parties”’
• whether the witness has material evidence to provide; and
• whether the witness is the only person or the best person who can provide the evidence.

While the plaintiffs argue it is highly irregular for a party witness not to testify in a civil trial (relying upon Solberg v. Carriere, 2014 BCSC 1668 at para. 38), there is no automatic adverse inference drawn when a party fails to testify.

Further, Solberg confirms that if the plaintiff has failed to establish a prima facie case against the defendant “no adverse inference will be drawn should the defendant not testify”: at para. 38. See also O’Connell v. Yung, 2012 BCCA 57 at para. 31; and Kern v. Forest, 2010 BCSC 938 at para. 174.

Plaintiffs must establish a prima facie case

The jurisprudence establishes that the party asking the court to draw an adverse inference must present some evidence that, in the words of Justice Spencer in Alavinejad, “would tend to prove the facts to be inferred to the extent that they demand an answer from the defendant”, and does not require they present evidence that establishes their prima facie case at large.

The adverse inference rule is a discretionary evidentiary rule. I am satisfied the party seeking the adverse inference must establish there is a prima facie case for the specific adverse inference being sought, and not for the case at large. This raises the issue of what standard of evidence is necessary to establish such a prima facie case.
The Manitoba Court of Appeal described the standard for establishing a prima facie case in The Director of Criminal Property and Forfeiture v. Ramdath et al, 2021 MBCA 23 [Ramdath et al], in the following manner:

The “prima facie” standard is situated on the standard of proof spectrum between “balance of probabilities” and “reasonable grounds to believe”. Black’s Law Dictionary defines prima facie as “on first appearance but subject to further evidence or information” (Bryan A Garner et al, eds, Black’s Law Dictionary, 10th ed (St. Paul, Minn: Thomson Reuters, 2014) sub verbo “prima facie”). The term “prima facie” is used in several different contexts and is somewhat loosely defined. The phrases “prima facie proof”, “prima facie evidence” and “prima facie case” have at times been used interchangeably, contributing to the confusion around what, exactly, is the prima facie case standard of proof (Sidney N Lederman, Alan W Bryant & Michelle K Fuerst, The Law of Evidence in Canada, 5th ed (Toronto: LexisNexis, 2018) at sections 3.36-3.44).

The Supreme Court of Canada has provided helpful guidance on what constitutes a “prima facie case” standard in the context of criminal law and extradition law. It is a “case containing evidence on all essential points of a charge which, if believed by the trier of fact and unanswered, would warrant [the order sought]” (Mezzo v The Queen, [1986] 1 SCR 802 at 837; see also United States of America v Shephard, [1977] 2 SCR 1067 at 1074-77)

The Court of Appeal describes the lower or less demanding standard of proof of “reasonable grounds to believe”, which entails an objective test which is based on “credibly-based probability”, and is met “when it is probable that something will happen, and the lower standard of “reasonable suspicion” which must also be grounded in objective fact, and is met “when it is probable that something might happen: Ramdath et al at paras. 23 and 25.

Alter Ego Trusts

Alter ego trusts are increasingly being used an an estate planning tool for those over 65 years of age.

From the perspective of disinherited.com they are typically used by parents to disinherit a child(ren) so that the child(ren) has no recourse under wills variation proceedings( S. 60 WESA)

In Larochelle v. Soucie Estate, 2019 BCSC 1329 at paras. 174-175, Donegan J. (quoting from Donovan Waters On Trusts ) summarized the nature and function of alter ego trusts:

[174] The particular type of trust at issue in this case is referred to as an “alter ego trust”. This type of trust is defined by its tax consequences. Under the ITA, individuals over the age of 65 are allowed to transfer assets to this special type of inter vivos trust, set up exclusively for that individual’s own benefit in their lifetime. At creation, the same person is generally settlor, trustee, and beneficiary. In Waters Law of Trusts, an alter-ego trust is explained concisely at 633:

An “alter-ego trust” allows a person of the age of 65 or over to settle property upon an inter vivos trust with the right to roll the property into the trust free of capital gains as long as the settlor is entitled to receive all of the income of the trust that arises before his or her death and as long as no person except the settlor may obtain the use of any of the income or capital of the trust before the settlor’s death. This allows settlors to make inter vivos disposition of their property that might otherwise have been made under a will.

[175] As both parties point out, inter vivos trusts in general, and alter-ego trusts specifically, have been recognized as legitimate estate-planning tools.

In Mawdsley v. Meshen, 2012 BCCA 91, Newbury J.A. described the legitimate “protective” functions of corporations and trusts, including alter ego trusts, in the estate planning context this way:

[2] Corporations and trusts also serve “protective” functions in the realm of estate planning. For example, individuals wishing to “freeze” the value of their estates may “roll over” their existing shares to new corporations, or exchange their appreciating shares for fixed-value shares, on a tax-deferred basis. The future appreciation of the corporation may then accrue to the benefit of the next generation, either directly or through trusts.

In recent years, the “alter ego trust” has also been recognized in the Income Tax Act as an estate planning tool. Provided the settlor is age 65 or older, he or she may ‘roll’ assets to a trust that is for his or her sole benefit during his or her lifetime and then for the benefit of his or her chosen beneficiaries. Such trusts have several advantages: they are used to minimize or eliminate probate fees; they permit the control and management of assets located in various jurisdictions to be centralized and to ‘carry on’ after the settlor’s death without the need for court approvals or probate; they obviate the risk of asset diminution due to incapacity or diminished capacity on the part of the settlor; and where beneficial interests are subject to the exercise of the trustee’s discretion, they offer some protection from spendthrift family members, their spouses and others claiming through them: s

Debts Owed By Beneficiary Must Be Accounted For

Re Kolic Estate 2022 BCSC 1527 reviewed an equitable principle in the distribution of an estate , that an indebted beneficiary of the estate must first bring his or her debt back into the estate so as to ensure fairness, even if the debt is statute barred. The equitable principle is known as the rule in Cherry v Boultbee.

In Kolic a sister who was heavily indebted to the estate petitioned to have her 1/6th interest in land registered while a cross petition sought directions under S. 86 Trustee act and obtained an order that the other siblings could sell the property and not register her 1/6th interest because of the set-off between the inheritance and the debt owing by her to the estate.

The equitable principle in Cherry v. Boultbee (1939), 4 My. & C. 442 (Eng. Ch. Div.) was considered by Church J. in Johnston Estate (Re), 2017 BCSC 272, who summarized the law in this area:

28 The applicant relies on what is commonly referred to as the rule in Cherry v. Boultbee which provides that where a legatee of a share of the residue is a debtor of the estate, he or she is not entitled to receive his or her legacy without bringing his or her debt into account. The rule derives from the case of Cherry v. Boultbee (1839), 4 My. & Cr. 442. It is an equitable principle designed to ensure fairness. The purpose of the rule was to prevent a beneficiary who owed money to an estate from receiving more than his or her fair share of the estate. In the case of Re: Akerman, Akerman v. Akerman, [1891] 3 Ch. 212, Kekewich J. stated:
A person who owes an estate money, that is to say, who is bound to increase the general mass of the estate by contribution of his own, cannot claim an aliquot share given to him out of that mass without first making the contribution which completes it. Nothing is in truth retained by the representative of the estate; nothing is in strict language set off; but the contributor is paid by holding in his own hand a part of the mass, which, if the mass were completed, he would receive back.

29 The rule has been held to apply even where the debt is statute-barred: see Re: Akerman.

30 The applicant submits that the rule continues to apply in Canada and relies on the decision of the Supreme Court of Canada in Canada Trust Company v. Lloyd et al, [1968] S.C.R. 300. In that case, the Supreme Court applied the rule in Cherry v. Boultbee in finding that the contribution of three directors who had improperly withdrawn funds from the company some 43 years earlier, had to be taken into account in the distribution of the residue by the receiver.
The court noted that the situation was analogous to that of a “legatee who must bring into account even a statute barred debt before he can claim a legacy left to him in the testator’s will”.
31 The applicant also relies on a more recent decision of the Ontario Court of Appeal, Olympia & York Developments Ltd. v. Royal Trust Co. (1993), 103 D.L.R. (4th) 129, where the court confirmed that the rule in Cherry v. Boultbee has been accepted in Canadian decisions and, where appropriate, applied.
…
36 …The rule in Cherry v. Boultbee does not confer on the estate any right to recoup the amount owing but rather operates to ensure fairness in the distribution of an estate, recognizing that the relationship between a testator and his or her beneficiaries is typically not at arm’s length. The fundamental purpose of the rule is to ensure that beneficiaries are treated fairly and it embodies the principal [sic] that he who seeks equity must do equity. As the court noted in Re: Akerman, nothing is being retained by the representative and nothing is being set off but rather, the contributor is paid by what he is holding in his own hand. The court in Re: Goy & Co Ltd. [1900] 2 Ch. 149, also noted that the claimant has in his own hands that which is applicable to the payment and should pay himself out of that. The question of whether the testator or the estate can recover the debt or whether the debt is statute barred is therefore largely irrelevant to the application of the rule. In my view, the change in approach to limitation provisions by the Supreme Court of Canada in Tolofson does not affect the application of the rule in Cherry v. Boultbee.

Non Disclosure Leads to Adverse Inference

Sarzynick v Skwarchuk 2021 BCSC 443 held that the defendant who was found to have strategically refused to disclose and produce financial documents could be held to an adverse inference that he had in fact siphoned off monies from his parent’s assets over several years as alleged by the plaintiffs.

The court stated that strategic non disclosure is a risky strategy which typically attracts adverse consequences to the non disclosing party

The court followed the BCCA case of Weintz v Weintz 2014 BCCA 118 in that regard.

Weinst stated:

Non-disclosure of relevant information that is in the possession and control of a party, and is necessary for the determination of an issue in the litigation, is a risky strategy. It has typically attracted adverse consequences to that party. In Kowalewich, Huddart J.A. stated that a trial judge must fix the amount of the compensation order based on the evidence before him when he orders a division in specie of family assets (at para. 21). He cannot ignore evidence because it may be difficult to assess. I would add that he cannot avoid making a necessary order to finalize the litigation because of a lack of evidence in the possession and control of a party that the party may choose not to tender. The making of a compensation order must also be distinguished from an order regarding its terms of payment. The latter is an ancillary order that may be addressed, through terms and conditions, after the compensation order is made.

[44] A similar reasoning may be found in Hausmann v. Klukas, 2009 BCCA 32, 91 B.C.L.R. (4th) 201 at paras. 51-52, leave to appeal ref’d 2009 S.C.C.A. No. 135, where this Court held that the onus was on the payor of child support to provide the necessary evidence that his corporation’s pre-tax income was not available for that purpose. In that case, the payor’s failure to meet that onus resulted in a presumption that the corporation’s pre-tax income was available to the payor for child support.

The Judge in Sarzynick v Skwarchuk followed Le v Milburn (1987) BCJ 2690 at para 2:

“When a litigant practices to deceive, whether by deliberate falsehood or gross exaggeration, the court has much difficulty in disentangling the truth from the web of deceit and exaggeration. If, in the course of the disentangling of the web, the court casts aside as untrue something that was indeed true, the litigant has only himself or herself to blame.”

Medical Records Admissibility and the Remoteness of Time

Re Gibb estate 2021 BCSC 2461 involved inter alia the admissibility of medical records in S. 58 WESA application to remedy a will that a lawyer prepared, reviewed by telephone with the deceased but not signed before his death.

The court ultimately found that the unsigned will was a valid will and was admitted into probate.

Admissibility of Medical Records

One of the respondent’s objections to the admissibility of hospital medial records was their lack of relevance due to the remoteness of time.

In Laszlo v. Lawton, 2013 BCSC 305 [Laszlo], that evidence of symptoms exhibited by a will-maker before and after making a will can support an inference of capacity at the time the will was made:

[190] The diminishment of mental capacity, particularly in the elderly, will frequently emerge and worsen over time. In light of that, evidence of symptoms exhibited by a testatrix both before and after the making of the will may support an inference relevant to the determination of the presence or absence of testamentary capacity at the material time: see generally, Smith v. Tebbett (1867), L.R. 1 P.& D. 354 at 398; Kri v. Patterson, [1989] O.J. No. 1817 (Surr. Ct.); Fawson Estate (Re), 2012 NSSC 55; Moore v. Drummond, 2012 BCSC 170 at para. 47 [Moore]; Coleman v. Coleman, 2008 NSSC 396 [Coleman].

In summary, the medical records are admissible as business records for the fact that the statements therein were made. The direct observations of the various medical practitioners are admissible and relevant to the issue of suspicious circumstances. The respondents’ concerns regarding remoteness go to the weight of the records rather than their admissibility.

The medical records from the time of the deceased’s heart attack to his death are admissible except for any opinions they contain. They are relevant to the determination of the presence or absence of testamentary capacity at the material time.

However, the selected medical records from prior years that the respondent tendered are not admissible for any purpose. While a court considering a s. 58 application will “benefit from learning as much as possible about all that could illuminate the deceased’s state of mind, understanding and intention regarding the document” (Hadley Estate (Re), 2017 BCCA 311, at para. 40) these medical records illuminate nothing. They are not relevant, not authenticated, not complete and not admissible under the business records exception to hearsay. Nor have I considered the other portions of the respondent’s affidavit that are hearsay, irrelevant or inflammatory.

Striking Out Claims, Pleadings, Petitions or Other Documents

Parmar v Sidhu 2022 BCSC 1359 reviewed the law relating to striking out claims, pleadings, petitions or other documents.

Rule 9-5(1) states:

At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petition or other document on the ground that

(a) it discloses no reasonable claim or defence, as the case may be,
(b) it is unnecessary, scandalous, frivolous or vexatious,(c) it may prejudice, embarrass or delay the fair trial or hearing of the proceeding, or
(d) it is otherwise an abuse of the process of the court,
…
Under subrule 9-5(2), no evidence is admissible on an application under subrule 9-5(1)(a).

It is well established that the test for determining whether to strike out a claim or not is set out in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 17 in which the Court was applying the predecessor to Rule 9-5(1):

[17] The parties agree on the test applicable on a motion to strike for not disclosing a reasonable cause of action under r. 19(24)(a) of the B.C. Supreme Court Rules. This Court has reiterated the test on many occasions. A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action: Odhavji Estate v. Woodhouse, 2003 SCC 69, at para. 15; Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at p. 980. Another way of putting the test is that the claim has no reasonable prospect of success. Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial: see, generally, Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38; Odhavhi Estate; Hunt; Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735.

The next issue to be considered is whether allegations based on assumptions and speculation, or allegations that are manifestly incapable of being proven, can be taken as true.

Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, 1985 CanLII 74 (S.C.C.), a case which involved an attempt to stop the Canadian government from testing cruise missiles, addressed the issue at para. 27:

We are not, in my opinion, required by the principle enunciated in Inuit Tapirisat, supra, to take as true the appellants’ allegations concerning the possible consequences of the testing of the cruise missile. The rule that the material facts in a statement of claim must be taken as true for the purpose of determining whether it discloses a reasonable cause of action does not require that allegations based on assumptions and speculations be taken as true. The very nature of such an allegation is that it cannot be proven to be true by the adduction of evidence. It would, therefore, be improper to accept that such an allegation is true. No violence is done to the rule where allegations, incapable of proof, are not taken as proven.

In more simple terms, the Court was saying that allegations of fact based upon assumptions and speculations cannot be taken as true.
Later, at para 78, the Court in Operation Dismantle stated:

[78] It has been suggested, however, that the plaintiffs’ claim should be struck out because some of the allegations contained in it are not matters of fact but matters of opinion and that matters of opinion, being to some extent speculative, do not fall within the principle that the allegations of fact in the statement of claim must be taken as proved. I cannot accept this proposition since it appears to me to imply that a matter of opinion is not subject to proof. What we are concerned with for purposes of the application of the principle is, it seems to me, “evidentiary” facts. These may be either real or intangible. Real facts are susceptible of proof by direct evidence. Intangible facts, on the other hand, may be proved by inference from real facts or through the testimony of experts. Intangible facts are frequently the subject of opinion.
…
The Court of Appeal, in my opinion, later clarified this issue in H.M.B. Holdings Limited v. Replay Resorts Inc., 2021 BCCA 142 [H.M.B.] at para. 54:

[54] The respondents submit that some of the facts as pleaded are incapable of proof, and that the pleadings cannot be taken as true. As noted above, the test on whether to strike a claim includes an assumption that the facts pleaded by the plaintiff are to be taken as true. This, however, is not an absolute rule – there are exceptions. The rule does not require that allegations based on assumptions and speculation, or allegations that are “manifestly incapable of being proven”, be taken as true: Operation Dismantle at p. 455; Imperial Tobacco at para. 22.

Reconsideration of a Court Decision

The court in Re Grace Estate 2022 BCSC 1283 reconsidered it’s decision prior to entry of the order as a result of a binding series of authorities that were not argued at the hearing.

A Court is not ” functus officio” (a task performed and therefor of no further force or authority) ( until the court order is entered.: Dowell v. Hamper, 2019 BCSC 1592 [Dowell] at paras. 14-17. As stated by Justice Kent in Dowell at para. 17:

… [T]he summary trial judge has unfettered discretion to reconsider and even reverse a summary trial judgment that has not yet been formally entered in the registry, it is a discretion that must be exercised with restraint and one governed by an overarching consideration whether such reconsideration is in the interests of justice in the unique circumstances of the case.

Many of the cases in which the court’s discretion to reconsider a decision is invoked deal with new evidence.

The court in Grace Estate 2022 BCSC 1283 reconsidered it’s decision prior to entry of the order as a result of a binding series of authorities that were not argued at the hearing.

Henry v. North Shore Taxi (1966) Ltd., [1992] B.C.J. No. 741 (S.C.) [Henry] was a case in which the applicant applied to reopen to present further submissions of law. As Justice Fraser put it at para. 12, “Put baldly, what Mr. Ashcroft seeks to do is make submissions that my judgment was wrong in law”.

Justice Fraser referred at para. 12 to the decision of Justice Finch in Signcorp v. Vancouver (City) (1986), 9 B.C.L.R. (2d) 238 (S.C.).

In that case, Finch J. permitted the losing party, after judgment had been rendered, to make further submissions on the basis that his decision was based on a point not argued. Having heard those submissions, Finch J. reversed himself. Justice Fraser wrote that the key to Signcorp was that the legal point in issue was not before the court at the original hearing.

He referred to the decision of the Court of Appeal in Menzies v. Harlos (1989), 37 B.C.L.R. (2d) 249 (C.A.) [Menzies] at p. 253 for the following description of when a court might exercise its discretion to rehear or reconsider submissions made during the hearing of an appeal:

It is not unusual for an application to vary to be made and granted where the basis of the application is a demonstrable oversight or error in a particular aspect. An example in the area of fact is an error in calculation in relation to damages. An example in the area of law is reliance on a statute which has been repealed. It is a fundamentally different matter to allow a full re-argument of issues which have been argued and decided – to, as it were, allow a second kick at the cat. That approach seems to be widely used by many American appellate courts but has not generally been part of the tradition of courts in this country or elsewhere in the Commonwealth.

In Henry, Fraser J. declined to reopen the case.

In doing so, he stated at para. 17 that “There is a balance to be struck here between discouraging the relitigation of matters already decided and preventing miscarriages of justice. I would not rule out categorically the proposition that a party might be given leave to argue a matter after judgment which it had the opportunity to argue at the conclusion of trial.” However, the case before the court in Henry was not one in which he considered it appropriate to exercise his discretion to do so.

I am cognisant that the discretion to reconsider “should be exercised sparingly and with great care to avoid unwarranted attempts to disturb the basis for a judgment or to permit a litigant to re-establish a broken down case after discovering the effect of a judgment”: Hodgkinson v. Hodgkinson, 2006 BCCA 158 at para. 36.

As stated by Kent J. in the passage already quoted from Dowell at para. 17, what must guide the exercise of the discretion is “an overarching consideration whether such reconsideration is in the interests of justice in the unique circumstances of the case”.

The Admissibility of Medical Records

Re Gibb Estate 2021 BCSC 2461 outlined the law relating to the admissibility of medical records.

While medical records are generally admissible, the court refused to do so in Gibb estate on the basis that it was a section 58 WESA application and the medical records from years prior were not relevant.

Singh Estate (Re), 2019 BCSC 272 considered the admissibility of a deceased’s medical records and reviewed the law.

In that case, the petitioner sought to introduce medical records to establish the first-hand observations of the authors not as “proof of accuracy of the author’s opinion or for the correctness of the statements.” (para. 35) but as an exception to the rule against hearsay pursuant to the standard business records exception.

The court summarized the applicable law:

[48] While clinical records are hearsay, they are admissible under the business records exception both at common law and under s. 42 of the Evidence Act. The requirements for the admission of medical records as business records are set out in Ares. The Supreme Court of Canada held at 626:
Hospital records, including nurses’ notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein.

[49] Justice Burnyeat in McTavish summarized the principles from Ares at 311-12:

1. The notes taken must be made contemporaneously.
2. The notes must be made by someone having a personal knowledge of the matters being recorded.
3. The notes must be made by someone who has a duty himself or herself to record the notes or to communicate the notes to someone else to record as part of the usual and ordinary course of their business.

4. The matters which are being recorded must be of the kind that would ordinarily be recorded in the usual and ordinary course of that business.

5. A statement in the records of the fact that a certain diagnosis was made will be admissible.

6. Recorded observations, diagnosis and opinions will be admissible providing they are recorded in accordance with points 1 through 4.

7. The fact that the referring doctor relied upon another doctor’s opinion to assist in coming to his or her own diagnosis and opinion is only evidence of that fact so that the other opinion does not become evidence unless it is otherwise admissible. Accordingly, it is only evidence of the fact that the referring doctor wished or required that opinion to be received before forming his or her own opinion.

8. Statements made by parties or by experts which are recorded in the usual and ordinary course of business but which lie outside the exception to the hearsay rule are hearsay and will not be admitted into evidence unless they can be brought within Section 14 of the Evidence Act which allows for the admissibility of such statements if it can be shown that they are proof of a prior inconsistent statement.

[50] The issue of third party statements was addressed in Cambie Surgeries. Justice Steeves provides:
…any statement by the patient or any third party that is not within the observation of the doctor or person who has a duty to record such observations in the ordinary course of business is not admissible for any purpose and will be ignored by the trier of fact…

Laszlo v. Lawton, 2013 BCSC 305 [Laszlo] held that evidence of symptoms exhibited by a will-maker before and after making a will can support an inference of capacity at the time the will was made:

[190] The diminishment of mental capacity, particularly in the elderly, will frequently emerge and worsen over time. In light of that, evidence of symptoms exhibited by a testatrix both before and after the making of the will may support an inference relevant to the determination of the presence or absence of testamentary capacity at the material time: see generally, Smith v. Tebbett (1867), L.R. 1 P.& D. 354 at 398; Kri v. Patterson, [1989] O.J. No. 1817 (Surr. Ct.); Fawson Estate (Re), 2012 NSSC 55; Moore v. Drummond, 2012 BCSC 170 at para. 47 [Moore]; Coleman v. Coleman, 2008 NSSC 396 [Coleman].

[57] In summary, the medical records are admissible as business records for the fact that the statements therein were made. The direct observations of the various medical practitioners are admissible and relevant to the issue of suspicious circumstances. The respondents’ concerns regarding remoteness go to the weight of the records rather than their admissibility.

Testamentary Capacity and Knowledge and Approval of a Will

Nassim v Healey, 2022 BCSC 402 at para. 44 summarized the rules regarding the burden of proof relating to testamentary capacity, and knowledge and approval .

The rules regarding the burden of proof in relation to testamentary capacity were set out by the Supreme Court of Canada in Vout v. Hay, (SCC), [1995] 2 S.C.R. 876 [Vout].

Essentially, the party who asserts that the will is valid – the “propounder” – benefits from a presumption that the testator had the necessary testamentary capacity so long as the will was prepared in accordance with the applicable statutory formalities, and was read by or to the testator who appeared to understand it.

However, that presumption can be rebutted if the opposing party raises “suspicious circumstances” in relation to:

(1) the preparation of the will;

(2) the will-maker’s capacity, or

(3) coercion or fraud that overbears the will-makers’ free will.

Where suspicious circumstances are raised, the burden then shifts to the propounder to prove testamentary capacity.

In addition to capacity, the testator’s knowledge and approval of the contents of the will must be established, with the propounder having the legal burden to prove same.

In addition to the will-maker’s general testamentary capacity, the Court must also be satisfied that the will-maker knew and approved of the contents of the will. The notion of “knowledge and approval” was explained by Baker J. in Johnson v. Pelkey (1997), 1997 CanLII 2935 (BC SC), 36 B.C.L.R. (3d) 40 at paras. 107–109 (S.C.) as follows:

At common law, the party seeking to propound a will has the legal burden to prove the testator’s knowledge and approval of the provisions of the will. Vout v. Hay, (1995) 1995 CanLII 105 (SCC), 7 E.T.R. (2d) 209, (S.C.C.), Russell v. Fraser, (1980), 1980 CanLII 737 (BCCA), 118 D.L.R. (3d) 733, (B.C.C.A.).

Any will that does not express the real or true “intention” of the testator will be set aside, even if the testator had testamentary capacity, and was not subject to undue influence.

In Russell v. Fraser, cited above, at page 739, the Court of Appeal held that where the person seeking to propound the will prepared the instructions for the will and takes a substantial benefit under the will, the burden of proving that the testator knew and approved the contests of the will is made more onerous.

The interested party must “affirmatively prove that the (testator) did in truth appreciate the effect of what she was doing”. Riach v. Ferris, 1934 CanLII 13 (SCC), [1935] 1 D.L.R. 118, [1934] S.C.R. 725 at 736.

Furthermore, as was noted by Madam Justice Francis in Geluch v. Geluch Estate, 2019 BCSC 2203 at para. 127, knowledge and approval require the will-maker to be aware of the magnitude of the residue of their estate, and to appreciate the effect of its disposition. Simply knowing the contents of the will is insufficient.

The rules regarding the burden of proof in relation to knowledge and approval are the same as those that apply in respect of testamentary capacity. There is a presumption that the will-maker who executes a formally valid will knows and approves its contents, but that presumption does not apply if suspicious circumstances are present. In such a case, the burden shifts to the propounder to prove knowledge and approval on a balance of probabilities, with the evidence being scrutinized in accordance with the gravity of the suspicion: Laszlo at paras. 201-207.

In Bhalla Estate 2017 BCSC 1867 the applicant was the sole the initiator, translator and sole beneficiary of an alleged will and therefor when such person seeks to propound the will , the burden of proving that the testator knew and approved the contest is made more onerous. Re Grace 2022 BCSC 653.