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.

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.

Video Evidence Is Admissible

In the past several years there has been a great increase in the receipt and admissibility of video evidence in civil litigation, as the necessary technology has improved and become ubiquitous.

During the COVID-19 pandemic, video evidence is commonplace. It is not confined to witnesses testifying to routine or inconsequential matters. It is almost always tendered by consent.

Judges have become accustomed to assessing the credibility and reliability of evidence given by a witness seen only on a video screen. Early concerns have been allayed, at least to some extent, by experience.

Section 73(2) of the Evidence Act authorizes the receipt of testimony by any “technology that allows the court, the parties and the witness to engage in simultaneous visual and oral communication”.

I will call this “video evidence”. The court may exercise a discretion to permit video evidence, where the necessary technology is available, unless “one of the parties satisfies the court that receiving the testimony in that manner would be contrary to the principles of fundamental justice”.

If there is an objection, subsection (3) lists the following factors for consideration in deciding whether to allow video evidence:

(a) the location and personal circumstances of the witness;
(b) the costs that would be incurred if the witness had to be physically present;
(c) the nature of the evidence the witness is expected to give;
(d) any other circumstance the court considers appropriate.

Kasatani v Matsubara 2020 BCSC1960 referred to the following cases addressing the exercise of the court’s discretion under s. 72(3):

• Nybo v. Kralj, 2010 BCSC 674at paras. 8 — 12;
• Slaughter v. Sluys, 2010 BCSC 1576at paras. 7 — 12;
• Seder v. Insurance Corporation of British Columbia, 2011 BCSC 823at paras. 26 — 37;
• Miley v. Abulaban, 2014 BCSC 1905at paras. 6 — 17;
• Grahovac v. Hartfiel, 2015 BCSC 1142at paras. 34 — 73; and
• Singh v. Chad, 2018 BCSC 1860at paras. 89 — 93.

In none of these cases did an objecting party satisfy the court that allowing video evidence would, in the circumstances of that case, be contrary to the principles of fundamental justice.

Slaughter is the only one of these cases in which video evidence was not allowed, and it was a split decision in that Justice Beames exercised her discretion to permit video evidence in respect of some witnesses, but not others. At para. 10, she rejected an argument that proper and full cross-examination cannot take place where witnesses appear by video. In exercising her discretion, she took into account the extent to which the evidence would be contentious.

Mutual Wills Are Problematic

Although rare, mutual wills are extremely problematic in estate matters in that typically, a married couple, both sign the same will which in effect creates a binding contract on each other not to change the contents of the will, without the express permission of the other party. A breach of this can give rise to a claim of constructive trust.

As such mutual wills ( as opposed to mirror wills that most couples get where they each have their own will) should be avoided.

Most of the cases define a mutual will as an agreement not to revoke the will, as opposed to alter the will, as is our case. The word alter is defined in Black’s dictionary as to modify or vary in some degree. The word revoke means to destroy or make void an act or document. I note however that in Williams, Wills (1980) stated under agreements relating to mutual wills-” such agreements vary according to the circumstances of particular cases and the wishes of the parties. The wills may be executed upon an agreement that they shall not be revoked or altered”- The case law also states that there must be clear and unequivocal evidence of an agreement not to revoke the wills.

The use of the word alter, as opposed to revoke may possibly affect the outcome, but given that equitable principles are involved, it is unlikely. Re Kerr (1948) 3 DLR 668 is one of the leading cases and states that regardless of its precise terms, a joint will may be evidence of a contract not to revoke.

There is a maxim that equity looks on that as done which ought to have been done, or which has been agreed or directed to be done.

The meaning of this maxim is that equity will treat the subject matter of a contract, as to its consequences and incidents, in the same manner as if the act contemplated by the parties had been completely executed and will act in favor of those persons entitled to the performance of the contract so that no party to the agreement shall suffer from the delay and laches of the defaulter.

Equity has even imposed a constructive trust where the husband and wife agreed not to revoke their mutual wills, even though the surviving spouse died leaving assets only in joint tenancy and not in his estate (Sanderson v University of Manitoba BCCA (1998) 7 WWR 83 ). In other words, it was not dependent on leaving assets in the estate for a constructive trust to be imposed. Sanderson discusses how equity considers it a fraud upon the deceased, who has acted upon and relied upon the mutually binding nature of the agreement, for the survivor to change the will and break the agreement. As the deceased cannot intervene to enforce the obligation, equity will enforce the survivor’s obligation despite the survivor’s subsequent intentions.”

There is a question as to when the law will impose a constructive trust and what property becomes subject to the trust- is it that the date the agreement was signed, the date that the first party dies, or the date that the surviving spouse dies. Donovan Waters cites the decision of Dufour v Pereira (1769) 1 Dick,419 and states that “when the first testator dies, the contract is executed and the court will not permit the survivor to break the contract.”

The decision of Birmingham v. Renfrew (1937) 57 CLR 666 at 689 discusses the situation where the surviving spouse is enabled during his lifetime to deal as absolute owner of the property passing under the will of the party first dying, and to enjoy for his own benefit the full ownership, so that he may convert and expand the proceeds, if he chooses. But when he dies he is to bequeath what is left in his estate in the manner agreed upon. This leaves the question open as to whether the survivor can defeat the purpose of the agreement by making inter vivos dispositions while alive and only leave any residue of his estate to the beneficiaries of the mutual will.

Birmingham v Renfrew is an Australian case, and it may well be that equity will not allow a deed all of the subject property to his daughter so as to defeat the equities of the mutual will.

Re Kerr (1948) 3 DLR 668 states at paragraph 24 that Dufour v Pereira was distinguished In re Oldham: Haldwen v Myles (1925( CH 75. The real point of distinction is to be found in the judgment of Astbury J. At the. 88, where he states:

“Firstly, I think a very great difference between Dufour v Periera and the present case is that in Dufour, the capital of the trust property was secured in fact by the life interest only been given to the survivor, whereas in the present case, the survivor is s. given the whole estate absolutely, and could, if so minded, dispose of the whole property inter vivos.”

At paragraph 25, the court continues ” It should also be mentioned that in RE Oldham : Hadwen v Myles there were two separate documents and the mutual wills were not embodied in the one instrument, as in the case at bar.

The majority of the Supreme court of Canada In Pratt v Johnson (1959) SCR 102 agreed that the surviving spouse can do as he or she pleased with the property during their lifetime, but must dispose by will of what remained by the terms of the agreement. The court found that there was an agreement not to revoke the will, but then said that it was not a matter of the construction of the joint will, but of the effect of the agreement. Their interpretation was that the wife was bound by the agreement to leave whatever property she still held at the time of her death to the joint will remaindermen.

Privilege In Lawyer Communications

Privilege in lawyer communications, including without prejudice offers, can be a somewhat complex legal issue on occasion and this blog is a brief overview of the topic.

Middlecamp v Fraser Valley Real Estate Board 1992 CarswellBC267 ( BCCA) cited R. v. Fosty (1991) SCR 263 wherein the Supreme Court of Canada described the two principal kinds of privilege. At p. 303 :

1) Public Policy

… The first four terms are used to refer to a privilege which was recognized at common law and one for which there is a prima facie presumption of inadmissibility (once it has been established that the relationship fits within the class) unless the party urging admission can show why the communications should not be privileged (i.e., why they should be admitted into evidence as an exception to the general rule). Such communications are excluded not because the evidence is not relevant, but rather because there are overriding policy reasons to exclude this relevant evidence. Solicitor-client communications appear to fall within this first category: see Geffen v. Goodman Estate (1991), 81 D.L.R. (4th) 211, 80 Alta. L.R. (2d) 293, 127 N.R. 241 (S.C.C.); R. v. Solosky (1979), 50 C.C.C. (2d) 495, 105 D.L.R. (3d) 745, [1980] 1 S.C.R. 821.

 

2) The term “case-by-case” privilege is used to refer to communications for which there is a prima facie assumption that they are not privileged (i.e., are admissible).

The case-by-case analysis has generally involved an application of the “Wigmore test” (see above), which is a set of criteria for determining whether communications should be privileged (and therefore not admitted) in particular cases. In other words, the case-by-case analysis requires that the policy reasons for excluding otherwise relevant evidence be weighed in each particular case.

 

Wigmore’s four tests are the standard by which case-by-case privilege will be measured.

They are found in the McNaughton revision (1961), vol. 8, p. 257, para. 2285, as follows:

(1) The communications must originate in a confidence that they will not be disclosed.
(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.
Without Prejudice Communications
(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

 

Without Prejudice


The public interest in the settlement of disputes generally requires “without prejudice” documents created for or communicated in the course of settlement negotiations to be privileged. It is a “blanket,” “prima facie,” “common law” or “class” privilege because it arises from settlement negotiations and protects the class of communications exchanged in the course of that worthwhile endeavour.

Belanger v. Gilbert (1984), 14 D.L.R. (4th) 428 (B.C. C.A) held that just because a document is marked without prejudice does not mean that is privileged.

in Schetky v. Cochrane et al., [1918] 1 W.W.R. 821, 24 B.C.R. 496, and the judgment of Mr. Justice Martin at p. 827. On that page Mr. Justice Martin referred to the case of Re Daintrey, Ex p. Holt, [1893] 2 Q.B. 116, in which he said:

… it was held that an admission of bankruptcy may be proved in a letter from the debtor to the creditor, though marked “without prejudice” …

Before the privilege arises two conditions must exist,

(a) a dispute or negotiation between two or more parties; and

(b) in which terms are offered

Judicial Declarations/Declaratory Judgements

Declaratory Judgements/Judicial Declarations

Park v Mitchell 2020 BCSC 1147 provides guidance on the law relating to declaratory judgments, a.k.a. judicial declarations.

A judicial declaration is not like a tort where damages are the usual remedy, or a claim for breach of contract where specific performance may be the proper remedy.

A declaratory judgment has no similar common-law or equitable foundation, but instead bases its legal existence upon her role of the Supreme Court (Rule 5(22))

Once the court grants a declaration it is binding on those affected, but unlike a judgment finding a breach of contract and awarding the remedy of specific performance, the declaratory judgment merely declares and goes no further in providing relief to the applicant been stating his or her rights.

A declaration is both the decree that declares an infringement of a right and an order prescribing the remedy.

The granting of a declaration is at the court’s discretion where four criteria are met:

  1. the court has jurisdiction to hear the issue
  2. the dispute is real and not theoretical
  3. the party raising the issue has a genuine interest in its resolution, and
  4. the responding party has an interest in opposing the declaration being sought. Ewart v Canada 2018 SCC 30 at para.81

Where the factors are met, a court looks at the practical value of the declaration in assessing if it should exercise its discretion to grant such a remedy.

A declaration can only be granted if it will have “practical utility”, that is if it will settle a live controversy between the parties.

The court has also phrase the question is whether “a useful purpose would be served” by granting the order. Wakelam v Wyeth Consumer Healthcare 2014 BCCA 36 at para. 71