Adverse Inferences- Under Utilized?

Govorcin Fisheries v Medanic Fisheries 2021 BCSC 1092 reviewed the principles relating to adverse inferences for failure to call certain witnesses or evidence without valid explanation.

It is a principle that dates back to the late 1700’s and is perhaps under utilized in estate litigation.

The matter of adverse inferences was discussed in some detail in the decision of the Court of Appeal in Rohl v. British Columbia (Superintendent of Motor Vehicles), 2018 BCCA 316, at paras. 1-4:

M.K. Fuerst in The Law of Evidence in Canada (4th ed., 2009):

In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the parties’ case, or at least would not support it.
. . .
An adverse inference may be drawn when, without explanation, a party does not give evidence or fails to call a witness who in the circumstances would be expected to favour the party and the witness would have knowledge of the facts in dispute. In such circumstances, the failure to call the witness or give testimony is seen as akin to an admission that the evidence would have been contrary to the party’s case, or at least would not support it. [At § 13.2131.]

According to the jurisprudence, an adverse inference or missing witness instruction is not “appropriate” where:

• counsel have offered an explanation for the failure to call the witness; such as a good faith belief in the unreliability of the witness; or, that the decision was a tactical one;
• the party has no special access to the witness;
• the evidence would be “unimportant to the case, cumulative, or inferior to the evidence already available on the relevant point”;
• where there is no evidence as to why the witness was not called.

Courts have held that an instruction is “appropriate” where:

• a party advises a jury or judge that the witness will be called;
• a party has greater access to the witness than the other and the witness would corroborate the party’s case in a significant respect; or, “where the accused in his own testimony first raises the corroborative significance of the witness to his defence”. [At § 33.10.30.]

These apply with varying degrees of strictness in civil actions.

In Jolivet, Binnie J. emphasized that one must be “precise” about the exact nature of the adverse inference sought to be drawn, endorsing the suggestion made in the Lederman text that in Canada, the inference is generally that the evidence of the absent witness would not support or, more significantly, that it would be contrary to the evidence of the party involved. In the criminal law context, therefore, courts must be particularly careful to ensure that an accused’s right to remain silent is not breached by the drawing of an adverse inference and that the onus of proof is not mistakenly shifted to the accused.

A considerable number of cases now reinforce the view that there is no such thing as a “mandatory adverse inference” to be drawn where a party fails to call a witness. Rather, the question of whether to make such an inference seems to depend upon the specific circumstances, in particular whether:

• There is a legitimate explanation for the failure to call the witness;
• The witness is within the “exclusive control” of the party, and is not “equally available to both parties”; and
• The witness has material evidence to provide; and
• The witness is the only person or the best person who can provide the evidence.

Essentially, the decision to draw an adverse inference is discretionary and premised on the likelihood that the witness would have given harmful testimony to the party who failed to call him or her.

See also Davison v. Nova Scotia Government Employees Union 2005 NSCA 51 at para. 74; O’Connell (Litigation Guardian of) v. Yung 2012 BCCA 57 at para. 75, citing Rimmer (Guardian ad litem of) v. Langley (Township) 2007 BCCA 350 at para. 30; R. v. Degraw 2018 ONCA 51 at para. 35; Parris v. Laidley 2012 ONCA 755 at para. 2; Gough v. C.R. Frankenham Backhow Services Ltd. 2008 NSCA 38 at para. 48; McWilliams, supra, at § 33.10.30.

Courts Refuses Production of Computer Hard Drive

In a long running matrimonial dispute  the court in Etemadi v Maali 2021 BCSC 1003 refused to order the defendant to produce her computer hard drive to her husband.

A computer hard drive is not a document, as contemplated by the provisions of Rule 9-1 Rule 1(1) of the Supreme Court Family Rules.

Rather, a hard drive is the digital equivalent of a bookshelf, a filing cabinet or a documentary repository. While the court may order the production of relevant documents stored in a hard drive, the Rules do not authorize an unrestricted search of a digital storage device.

A “document” is defined in Rule. 1(1) of the Supreme Court Family Rules as having an extended meaning ,”…and includes a photograph, film, recording of sound any record of a permanent or semi-permanent character and any information recorded or stored by means of any device”.

The court was influenced by the decision o of Desgagne v. Yuen, 2006 BCSC 955 where the court found the defendants were seeking disclosure, from the computer, of all available documentation to recording virtually every element of the plaintiff’s activities for all of her waking hours- an extremely broad ” fishing expedition”.

No specific documents from the computer had been sought and the court found that the claimant wished to leaf through the digital files on the hard drive to determine whether any relevant material has been disclosed, and that is not a mode of disclosure contemplated by the Supreme Court Family Rules.

 

Etemedi v Maali referred to the decision of the British Columbia Court of Appeal in Privest Properties Ltd. v. W.R. Grace & Co. – Conn (1992), 74 B.C.L.R. (2d) 353 (C.A.).

In that case, the plaintiff sought access to a document repository established by the defence (for use in U.S. litigation due to jurisdictional overlap). After reviewing the provisions of then Rule 26, Southin, JA, commented, at paras. 37-40:

“But these rules do not empower a judge to require a party to give access to his opponent to documents which are neither in his list not in an affidavit required to be made under sub-rule 4 nor referred to in one of the documents listed in sub-rule 8.

Sub-rule 10 confers no power to make the order under appeal which is really an authorization to search.

If the court had power to make this order then it would also have the power to permit a litigant access to all places in which his opponent might keep documents to see if there is anything “relating to any matter in question”.

It would require much different rules to give the court such an extraordinary invasive power in circumstances such as these. However, if the fact that the respondents at one time wrongly believed to exist – that is to say, a deliberate concealment of documents – was proven to exist, it may be that an order of the sort made here could be made for the purpose of redressing dishonesty in the litigtion.

 

In the case of Mossey v. Argue, 2013 BCSC 2078, Master Young, as she then was, reviewed the provisions of the Supreme Court Family Rules with respect to document disclosure, and then went on to say as follows:

The law is not that a party can demand every document that has come into a party’s possession or control because they are suspicious of wrongdoing. They have to specify what document or class of documents they are requesting and tie it to an issue in the proceedings.

As Master Baker said in Anderson v. Kauhane (February 22, 2011), Vancouver Registry — and this is quoted in Master Bouck’s decision in Przybysz (as read in):

…there is a higher duty on a party requesting documents under…Rule 7-1(11)…they must satisfy either the party being demanded or the court…with an explanation “with reasonable specificity that indicates the reason why such additional documents or classes of documents should be disclosed”…

Przybysz and Anderson are civil cases, but civil Rule 7-1(8) and Supreme Court Family Rule 9-1(8) are identical. The only difference in document disclosure in family law proceedings is that the first tier of disclosure is at least partially proscribed in the family law financial disclosure Rule 5-1, which makes disclosure of income information from personal and corporate sources mandatory and sets out some basic rules for disclosure of business interests. There will likely be other documents that fit into the first tier of disclosure.

However, gone are the days of the full underwear drawer disclosure, unless the demand is made with specificity and justification.

In this case, the initial demand letter does not set out the reason for the demand. I have combed through the letters and emails to see if that flaw has been addressed. Some of the follow-up emails and letters do allude to some specific issues that the respondent wishes to prove. The notice of application is a disappointing cut-and-paste of the original deficient demand letter. It does not specify many of the documents or classes of documents, and it does not establish a reason for many of the requests.

The rules of document disclosure were changed to avoid document disclosure demands like the one I have before me today. It is impractical to expect a party conducting business will be required to produce a photocopy of every cheque front and back, every invoice, credit and debit note, and receipts for years of business transactions. The costs of the legal proceeding will far exceed the value received by the party if the court has to condone forensic audits of the parties’ businesses because the parties are mistrustful of one another.

Mistrust is a common theme in matrimonial proceedings. The threshold for document disclosure has to be higher than that.

.

Security For Costs of $150,000 Ordered

The court in Global Chinese Press Inc ( Global) v Zhang et al 2021 BCSC 999 ordered Global to post security for court costs in the amount of $150,000 within 60 days.

Section 236 of the Business Corporations Act, S.B.C. 2002, c. 57 provides:

236. Court may order security for costs

If a corporation is the plaintiff in a legal proceeding brought before the court, and if it appears that the corporation will be unable to pay the costs of the defendant if the defendant is successful in the defence, the court may require security to be given by the corporation for those costs, and may stay all legal proceedings until the security is given.

 

In Kropp v. Swaneset Bay Golf Course Ltd. (1997), 29 B.C.L.R. (3d) 252 at para. 17 (B.C.C.A), the court set out the considerations that govern an application for security for costs:

1. The court has a complete discretion whether to order security, and will act in light of all the relevant circumstances;

2. The possibility or probability that the plaintiff company will be deterred from pursuing its claim is not without more sufficient reason for not ordering security;

3. The court must attempt to balance injustices arising from use of security as an instrument of oppression to stifle a legitimate claim on the one hand, and use of impecuniosity as a means of putting unfair pressure on a defendant on the other;

4. The court may have regard to the merits of the action, but should avoid going into detail on the merits unless success or failure appears obvious;

5. The court can order any amount of security up to the full amount claimed, as long as the amount is more than nominal;

6. Before the court refuses to order security on the ground that it would unfairly stifle a valid claim, the court must be satisfied that, in all the circumstances, it is probable that the claim would be stifled; and

7. The lateness of the application for security is a circumstance which can properly be taken into account.

[24] An order under s. 236 is discretionary, but once the applicant has shown that the plaintiff will not be able to pay costs should the claim fail, security is generally ordered unless the court is satisfied that there is no arguable defence: Fat Mel’s Restaurant Ltd. v. Canadian Northern Shield Insurance Co. (1993), 76 B.C.L.R. (2d) 231 at para. 16 (B.C.C.A). The law does not treat corporate plaintiffs with the same generosity and flexibility as natural persons opposing an application for security: Kropp at para. 11.

[25] The evidence on this application clearly indicates GCP is insolvent, has no exigible assets, and will be unable to pay costs if it is unsuccessful in this action. In failing to respond to this application, GCP has not filed any evidence to the contrary or suggested any reason why security should not be ordered.

Renewal of a Notice of Claim

Gill v Basic 20212 BCSC 875 dealt with the renewal of a Notice of Claim without notice to the defendants.

In Gill the Notice of Claim had expired 8 months prior through inadvertence and the defendant had not been served as they could not be located.

The court renewed the Notice of Claim for a further 3 months finding there was no prejudice to the defendants but there would be substantial prejudice to the plaintiffs if they could nor proceed with their claim.

Rule 3-2(1) requires the plaintiff to serve the original NOCC on the named defendant(s) within 12 months of filing. This 12-month period can be extended if the defendants have not been served with the NOCC in the requisite period of time. In such case, the plaintiff must bring an application to renew the NOCC. The NOCC can be renewed for a period of not more than 12 months at a time.

In Fast Fuel Services Ltd. v. Michelin North America (Canada) Inc., 2008 BCCA 216 [Fast Fuel] at para. 9, the Court set out the factors to consider in such applications. These are:

1) Whether the application to renew was made promptly;
2) Whether the defendant had notice of the claim before the notice of civil claim expired;
3) Whether the defendant was prejudiced;
4) Whether the failure to effect service was attributable to the defendant; and
5) Whether the plaintiff, as opposed to the plaintiff’s solicitors, was at fault.

The promptness of the application and the prejudice to the parties are measured as of the date of the discovery of the error: Fast Fuel at para. 17.

In determining whether to grant a renewal, courts should primarily be concerned with: (1) the rights of the litigants, and not with the conduct and failures of their solicitors; and (2) ensuring that the outcome would not create a substantial injustice to either the plaintiff or the defendant: Sutherland v. McLeod, 2004 BCCA 653 at paras. 28-29; see also Stuart v. Patterson, 2010 BCSC 1236 at para. 13.

The plaintiff has a high duty of disclosure, and a failure to provide full and frank disclosure may result in the setting aside of the order made: Politeknik Metal San ve Tic A.S. v. AAE Holdings Ltd., 2015 BCCA 318.

Disposing of Human Remains

I was contacted about a matter related to the disposition of human remains as a result of an estranged spouse refusing to release the body to be disposed of in accordance to a certain religious rite.

section 5 of the Cremation, Internment and Funeral Services act RSBC that governs the disposition of human remains and the control of same.

Control of disposition of human remains or cremated remains:

5 (1)Subject to this section and section 8 (3) (b) (i) [requirement for authorization before funeral services or disposition], the right of a person to control the disposition of the human remains or cremated remains vests in, and devolves on, the following persons in order of priority:

(a)the personal representative named in the will of the deceased;
(b)the spouse of the deceased;
(c)an adult child of the deceased;
(d)an adult grandchild of the deceased;
(e)if the deceased was a minor, a person who was a guardian who had care and control of the deceased at the date of death;
(f)a parent of the deceased;
(g)an adult sibling of the deceased;
(h)an adult nephew or niece of the deceased;
(i)an adult next of kin of the deceased, determined on the basis provided by section 23 (5) of the Wills, Estates and Succession Act;
(j)the minister under the Employment and Assistance Act, or if the Public Guardian and Trustee is administering the estate of the deceased under the Wills, Estates and Succession Act, the Public Guardian and Trustee;

(k)an adult person having a personal or kinship relationship with the deceased, other than those referred to in paragraphs (b) to (d) and (f) to (i).

(2)If the person at the top of the order of priority set out in subsection (1) is unavailable or unwilling to give instructions, the right to give instructions passes to the person who is next in priority.

(3)If, under subsection (1), the right to control the disposition of human remains or cremated remains passes to persons of equal rank, the order of priority

(a)is determined in accordance with an agreement between or among them, or
(b)in the absence of an agreement referred to in paragraph (a), begins with the eldest of the persons and descends in order of age.
(4)A person claiming that he or she should be given the sole right to control the disposition of the human remains or cremated remains may apply to the Supreme Court for an order regarding that right.

(5)When hearing an application under subsection (4), the Supreme Court must have regard to the rights of all persons having an interest and, without limitation, give consideration to

(a)the feelings of those related to, or associated with, the deceased, giving particular regard to the spouse of the deceased,
(b)the rules, practice and beliefs respecting disposition of human remains and cremated remains followed or held by people of the religious faith of the deceased,
(c)any reasonable directions given by the deceased respecting the disposition of his or her human remains or cremated remains, and
(d)whether the dispute that is the subject of the application involves family hostility or a capricious change of mind respecting the disposition of the human remains or cremated remains.

(6)Despite subsections (1) to (3), if the Supreme Court makes an order in favour of a person who has applied to it under subsection (4), that person is deemed to be at the top of the order of priority set out in subsection (1).

In Kartsonas v Kartsonas 2010 BCCA 336 the appeal court dismissed an appeal from an order granting the testator’s children the sole control of the disposition of their father’s remains. The children unlike the opposing testator’s niece , wanted a religious burial in accordance with Greek Orthodox religion.

The niece opposed to the application on the basis that the testator had been estranged from his children and had trusted the burial arrangements to her, and she argued that he was an atheist and therefore would not have wanted a religious funeral.

The appeal court held that the decision was discretionary as the judge consider the evidence before him, and concluded that the rights of all persons having an interest fell, on balance, in favor of the wishes of the deceased family members who wanted a religious funeral.

Section 5(1 ) Cremation, Internment and Funeral Services act sets out the order of priority of persons to control the disposition of the remains of a deceased person.

The first priority is given to the personal representative named in the will of the deceased.

The next following priorities are given to the spouse of the deceased and the adult children of the deceased.

S 5(4) of the act authorizes an application to be made by a person claiming that he or she should be given the sole right to control the disposition of the remains of a deceased person.

S. 5(6) provides that if such an applicant is successful, then he or she is deemed to be at the top of the order of priority.

While clause C of section 5 (5) provides that reasonable directions given by the deceased person are to be taken into account on an application under section 5(4), it is not determinative, and is only one factor to be taken into account by the court

The appeal court held that the trial judge properly exercised his discretion, having regard to the provisions of section 5(5) and he rightly concluded that the rights of all persons having an interest fell on balance in favor of the wishes of the deceased it advised that the answer was in family members who wanted a religious funeral.

Hand Written Alterations to a Will Approved – S. 59 WESA

Hand Written Alterations to a Will Approved - S. 59 WESA

In an unopposed hearing Re Jamt Estate 2021 BCSC 788 the court approved hand written alterations to a will pursuant to S. 59 (1) (a) WESA.

The deceased had fully obscured with thick black pen the provisions of the original will, printed in new additions in two paragraphs and initialed the changes.

Witnesses identified the handwriting.

The additions were substantive and made after the will was executed, so S. 54(4 nr) of WESA did not apply, and instead S.58 and 59 of WESA were applied.

S. 58 WESA: One of the leading case on this section is re Hadley Estate 2017 BCSC 311

S. 58 is remedial in nature, conferring a broad discretion in prescribed circumstances to order a writing or marking on a will fully effective despite non-compliance with the statutory requirements for alteration.

Under s. 58, the two questions to answer regarding the Alterations are: (a) whether they are authentic, in the sense of actually being made by Mr. Jamt himself; and (b) whether they represent his deliberate, i.e., fixed and final, testamentary intentions (Hadley Estate (Re), para. 36).

As stated in Hadley Estate (Re) (at para. 38), WESA does not provide guidance on what evidence is admissible for a s. 58 analysis. Given the inherent challenges of establishing a deceased’s intentions, the court will benefit from allowing wide-ranging evidence regarding the deceased’s state of mind, understanding and intentions, subject to the rules of evidence:

Sitting as a court of probate, the court’s task on a s. 58 inquiry is to determine, on a balance of probabilities, whether a non-compliant document embodies the deceased’s testamentary intentions at whatever time is material. The task is inherently challenging because the person best able to speak to these intentions – the deceased – is not available to testify. In addition, by their nature, the sorts of documents being assessed will likely not have been created with legal assistance.

Given this context and subject to the ordinary rules of evidence, the court 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. Accordingly, extrinsic evidence of testamentary intent is admissible on the inquiry: Langseth Estate v. Gardiner (1990), 75 D.L.R. (4th) 25 at 33 (Man. C.A.); Yaremkewich Estate (Re) at para. 32; George.

As is apparent from the case authorities, this may well include extrinsic evidence of events that occurred before, when and after the document was created: see, for example, Bennett; George; Estate of Young; Re MacLennan Estate (1986), 22 E.T.R. 22 at 33 (Ont. Surr. Ct.); Caule v. Brophy (1993), 50 E.T.R. 122 at paras. 37–44 (Nfld. S.C.).

S. 59 WESA

59 WESA Sections 59(1) and (2) say:

Rectification of Will

59 (1) On application for rectification of a will, the court, sitting as a court of construction or as a court of probate, may order that the will be rectified if the court determines that the will fails to carry out the will-maker’s intentions because of

(a) an error arising from an accidental slip or omission,
(b) a misunderstanding of the will-maker’s instructions, or
(c) a failure to carry out the will-maker’s instructions.

(2) Extrinsic evidence, including evidence of the will-maker’s intent, is admissible to prove the existence of a circumstance described in subsection (1).

Prior to this decision the sole reported consideration of s. 59 appears to be Huber Estate (Re), 2019 BCSC 866, in which a will was rectified under s. 59(1)(b) because it failed to carry out the maker’s intentions due to her lawyer’s misunderstanding about the number of children she had.

Re Jamt estate was the first judicial consideration of s. 59(1)(a), which was the specific provision on which the petitioner relied upon.

The court found that the evidence strongly supported granting the rectification sought under s. 59(1)(a).

It indicated that Mr. Jamt’s intention was to leave his estate to the petitioner Per Martin, his Will as written failed to carry out this intention, and it did so because of Mr. Jamt’s accidental slip in confusing the petitioner’s middle name with that of Mr. Jamt’s brother, Per Kare Jamt, who had died in 1994.

Adjournment of a Trial

The decision to adjourn a trial hearing is a discretionary one, governed by the interests of justice and necessitating a balancing of interests: Sidoroff v. Joe (1992), 76 BCLR (2d) 82 BCCA .

 

The court outlined some relevant factors in Navarro v. Doig River First Nation, 2015 BCSC 2173:

A judge exercises discretion when an adjournment is sought and has wide powers in relation to the order that is made. The discretion must, of course, be exercised judicially in accordance with appropriate principles. The exercise of discretion is a delicate and difficult matter that addresses the interests of justice by balancing the interests of the plaintiff and of the defendant. This balancing requires a careful consideration of all of the elements of the case including the nature of the proceedings and the parties.

The Court of Appeal will be extremely reluctant to interfere with a decision of a trial judge on an adjournment matter which is integral to exercise of judicial discretion.

There are numerous factors to be considered on an adjournment application.

 

The paramount consideration is the interest of justice in ensuring that there will remain a fair trial on the merits of the action.

Because the overall interests of justice must prevail at the end of the day, courts are generous rather than overly strict in granting adjournments, particularly where granting the request will promote a decision on the merits.

The natural frustration of judicial officials and opposing parties over delays in processing civil cases must give way to the interests of justice, which favours a claimant having his day in court and a fair chance to make out his case.

Other factors or considerations include (in no particular order of priority):

• the expeditious and speedy resolution of matters on their
merits (Rule 1-3(1));

• the reasonableness of the request;

• the grounds or explanation for the adjournment;

• the timeliness of the request;

• the potential prejudice to each party;

• the right to a fair trial;

• the proper administration of justice;

• the history of the matter, including deliberate delay or misuse of
the court process; and

• the fact of a self-represented litigant.

Legal Disability and Litigation Guardian

Stanford v Murad 2021 BCSC 130 dealt with a legal dispute involving a demented person who is likely under a legal disability, and thus required a litigation Guardian.

The 89-year-old plaintiff’s litigation Guardian had fallen very dependent on the defendant, and possibly had married her. He no longer wanted his children to look after his financial affairs, and instead wanted the defendant as he did not believe that she would take his money without asking. There was evidence that the defendant had isolated the plaintiff and had prevented him from seeing than communicating with others.

An application was made by the aged to remove his litigation Guardian and/or declare that he was not a person under a legal disability.

There was evidence that the aged plaintiff had a long history of psychiatric disorders, including brain lesions, depression, concussions, severe strokes and severe dementia.

The court found that there is evidence that raised significant concerns about whether the aged plaintiff was under a legal disability, that is whether he was incapable of exercising judgment in relation to claims in the lawsuit as a reasonable person would be expected to do.

Because there was conflicting evidence, the court found that an independent medical opinion was needed, and thus ordered for the purpose of providing a medical opinion to the court regarding whether the aged plaintiff was capable of instructing counsel in exercising judgment in relation to the claims in issue, and possible settlement, as a reasonable person would be expected to do.

Rule 20-2 is a complete code respecting people under disability.
….
(2) A proceeding brought by or against a person under legal disability must be started or defended by his or her litigation guardian.
(3) Unless a rule otherwise provides, anything that is required or authorized by these Supreme Court Civil Rules to be done by or invoked against a party under disability must
(a) be done on the party’s behalf by his or her litigation guardian, or
(b) be invoked against the party by invoking the same against the party’s litigation guardian.
….
(5) Unless the court otherwise orders or an enactment otherwise provides, a person ordinarily resident in British Columbia may be a litigation guardian of a person under disability without being appointed by the court.
….
(8) Unless a committee has been appointed, the lawyer for a person under disability, before acting in a proceeding, must, unless subrule (9) applies, file a certificate that he or she knows or believes that

(a) the person to whom the certificate relates is an infant or mentally incompetent person, giving the grounds of that knowledge or belief, and if the person to whom the certificate relates is a mentally incompetent person, that a committee has not been appointed for the person, and
(b) the proposed litigation guardian of the person under disability has no interest in the proceeding adverse to that person.
(11) If it is in the interest of a party who is under disability, the court may remove, appoint or substitute a litigation guardian.

The test for whether a person is under legal disability for the purposes of Rule 20-2 is whether the person is capable to instruct counsel and to exercise judgment in relation to the claims in issue and the possible settlement as a reasonable person would be expected to do: Walker v. Manufacturers Life Insurance Co., 2015 BCCA 143 at para. 12.

Under the Adult Guardianship Act, R.S.B.C. 1996, c. 6, s. 3, an adult is presumed capable unless proven otherwise.

A judge has discretion to take steps, including ordering a medical examination, to determine whether a litigation guardian should be appointed: Walker at para. 33; Pavlick v. Hunt, 2005 BCSC 285 at paras. 20-23.

In order to protect the best interests of the dependent adult, the litigation guardian cannot have a personal interest in the outcome of the legal proceedings: Gronnerud (Litigation Guardian of) v. Gronnerud Estate, 2002 SCC 38 at para. 20.

Converting a Petition to an Action

Kerfoot v Richter 2018 BCCA 238 reviewed the law relating to the test on an application to convert a proceeding brought by petition to an action.

The petitioner’s application to convert the petition to an action was dismissed by the chambers judge, and the Court of Appeal held that the chambers judge did not properly administer the legal test in the exercise of his discretion.

The petition was to dispute the validity of the petitioner’s mother’s will, in which the bulk of the estate was left to the respondent. It was alleged that the testator lacked mental capacity, and the will was procured as a result of the undue influence of the respondent.

The chambers judge dismissed the application without formal reasons.

The Court of Appeal held that the proper test was set out in British Columbia Milk Marketing Board v Saputo Products 2017 BCCA 247, that proceedings brought by petition should be referred to the trial list when there are disputes of fact or law, unless the party requesting the trial is bound to lose( at para. 43)

The application to convert the petition into an action was made pursuant to Supreme Court Rules 22- 1 (7) and 25-14(8)(e).

The appeal court in Kerfoot v Richter held that the Saputo test precluded a judge from weighing the evidence.

Applying the decision Robertson v Dhillon 2015 BCCA 469 the appeal court confirmed that the test is akin to the test to be applied for summary judgment: whether on the relevant facts and applicable law, there is a bona fide triable issue.

In the context of this case where there are factual disputes, the chambers judge was to determine whether the petitioner, as the party requesting the trial, was bound to lose; more particularly whether there was a triable issue with respect to the deceased testamentary capacity were the issue of undue influence.

Where there are disputed facts in the pleadings, the party who seeks either summary judgment or dismissal bears the evidentiary burden of showing that there is no genuine issue to be tried, and that is proven through evidence. McLean v law society, British Columbia , 2016 BC CA 368 at paragraphs 36 – 39.

In considering evidence, however, the court must not weigh it, but is limited to assessing whether it establishes a triable issue. Sky Bridge Investments Ltd v . Metro Motors LTD 2006 BC CA 500.

While a judge is not to weigh evidence, he or she may draw inferences that are strongly supported by undisputed facts.
Importantly, a party seeking to establish that there is a triable issue cannot rely on mere allegations, but must establish the existence of material issues. Canada Atty. Gen. v Lameman 2008 SCC 14 at paragraph 11.

Certificates of Pending Litigation (CPL)

Lipskaya v Guo 2020 BCSC 2090 canceled a certificate of pending litigation registered against the property where the owner was indebted to her for arrears of child maintenance.

The court found that the certificate of pending litigation (CPL) had been improperly filed as the claim did not disclose an interest in the land.

 

What Is a CPL and When Can It Be Filed?

 

A CPL is a mechanism by which a party may secure a claimed interest in land.

The certificate gives notice to the world at large that the legal or beneficial title to the property is in dispute. It does not prevent an actual transfer or change in the title, but any transfer or change would be subject to the certificate of pending litigation, and thus risky.

It’s It is not to be used as a form of pre-judgment execution in respect of a purely financial claim. The requirement that there be a claim for an interest in land stems from s. 215(1) of the Land Title Act, R.S.B.C. 1996, c. 250 [LTA].

In Chen v. Jin, 2019 BCSC 567, the court set out the principles governing an application to cancel a CPL

The key to s. 215(1)(a) is that the CPL must be grounded in a claim to an interest in land

It is improper to file a CPL as leverage to secure a financial claim: Drein v. Puleo, 2016 BCSC 593at paras. 8-10.

The correct test to be applied in an application to cancel a CPL that is alleged to be non-compliant with s. 215 of the Land Title Actis simply whether the pleadings disclose a claim for an interest in land. Where a CPL fails to properly claim an interest in land, it should be cancelled on the basis that it does not meet that precondition: Xiao v. Fan, 2018 BCCA 143at paras. 19 and 27.

 

Cancellation of a CPL

The process for making this determination as set out by the Court of Appeal in Xiao is as follows:

Accordingly, the correct test to be applied in an application to cancel a CPL that is alleged to be non-compliant with s. 215 of the Land Title Act is simply whether the pleadings disclose a claim for an interest in land. In such an application, no evidence is to be considered.

If the merits of the claim for an interest in land are challenged, a defendant should apply for a summary dismissal of that part of the claim under Rule 9-6(4), where evidence may be considered, and the test to be applied is whether there is a bona fide triable issue of fact or law. If that part of the claim is dismissed, a defendant may then apply to have the CPL cancelled under s. 254. See also Bilin v. Sidhu, 2017 BCCA 429and Berthin v. Berthin, 2018 BCCA 57.