Probate Fees and Capital Gains Taxes

Probate Fees and Capital Gains Taxes | Disinherited Vancouver

Re the Estate of Wilma Bouma 2018 BCSC 1466 involved in application brought by the administrator of the estate of the deceased for an order pursuant to section 2(4) of the Probate Fee act to increase the declared value as of death from $211,300-$315,000.

The deceased had use the notice of assessment issued in 2016 that set the value of the property at $211,300, while a subsequent appraisal indicated that the value of the property as of death was in fact $315,000.

The court found that the notice of assessment while issued in 2016, really reflected the relevant time of value for the assessment as of July 1, 2015, and not 2016.

The court ordered that the value of the property as of the date of death was $315,000 and directed that the probate registry process the supplemental affidavit of assets and liabilities based on the larger amount.

The court stated as an aside that the real reason for the application was to not only reflect the true value as of the property as of the date of death, but that the purpose of same was to in effect reduce the amount of capital gains taxes that would be payable on the property.

The effect of the increased value substantially reduce the amount of capital gains taxes payable on the approximate difference of $100,000, while the additional probate fee would only be 1.4% of the additional value namely $1451.

Security For Costs Applications

Security For Costs Applications

Parmar v. Timothy Hunstsman Law Corp. 2018 BCSC 1151 involved a successful application by the defendant that the plaintiff post security for costs for the court action brought by the plaintiff, who lived in Illinois and had no assets in the province of British Columbia.

The defendant prepared a bill of costs, allowing for a five-day trial, full day examinations for discovery, instructing experts, mediation and significant disbursements totaling $35,000.

The court ordered that the plaintiff post security for costs in the amount of $20,000 within 60 days of the court order, or if not paid, the action would be dismissed.

The plaintiff had brought court action against the defendant law firm alleging breach of contract and professional negligence.

The legal principles relating to the jurisdiction of the court to order security for costs by a non-corporate plaintiff arises from the inherent jurisdiction of the court. The order is a discretionary on that must be exercised judicially and in all interests of the parties–Sheill v Coach House Motel Ltd (1982) 37 BCLR 254 ( CA) at 264.

Security for cost applications are typically brought where there are concerns that the plaintiff will not satisfy a costs award made against it because the plaintiff resides outside the jurisdiction and has no assets within it. Those circumstances on their own are not determinative.

The law is clear that poverty should not be a bar to access the court. Access to the court should not be hampered by financial issues, except in special or egregious circumstances–Han v Cho 2008 BCSC 1229 at para 14.

The onus is on the applicant. In a situation where the plaintiff is a corporation, if the defendant can show that it will not likely be able to cover costs if the claimant fails, security is generally granted.

However, security for costs where the plaintiff is an individual requires a different balancing giving the access to justice concerns. The overall balancing is the risk that a successful defendant will be unable to recover costs of security is not granted against the risk that a legitimate claim could be stifled by an order. If the latter is in play, it will override the concerns of the defendant will not recover costs of successful.

The threshold issue is whether the applicant has established, on a prima face the basis that it will be unable to recover costs in the event of success- Equstek Solutions Inc v Jack 2013 BCSC 2135 at para 26-27.

The factors that courts hearing such applications have considered in the exercise of its discretion were listed in I. J. v J.A.M.- BCSC 270 at para 14:

1) the merits of the plaintiff’s claim;
2) whether the plaintiff is bankrupt or insolvent
3) whether the plaintiff has demonstrated an intention not to comply with previous orders relating to costs payable;
4) whether there is a risk the plaintiff is not findable;
5) whether there is evidence suggesting that a false description of residence or a false name has been given to the court or use generally.

The courts often cautiously approach the issue of the merits of the case in applications for security for costs, and typically should avoid going into detail in the success or failure appears obvious.-Wang v BC Medical Association 2011 BCSC 1659.

The courts in this decision did however rely heavily on the fact that the plaintiff’s state of residence is a non-reciprocating jurisdiction and that the plaintiff had no assets in British Columbia.

The plaintiff’s lawyer conceded that the plaintiff had the means to pay security for costs without impeding his ability to pursue the claim.

Revocation of a Grant of Probate

Revocation of a Grant of Probate

The leading case in British Columbia on the revocation of a grant of probate is Desbiens v Smith Estate 2010 BCCA 394 .

That decision was decided on the basis of improper service of the application for the grant of probate under what was then section 112 of the Estate Administration act.

That statute was incorporated into the provisions of WESA and Desbiens v Smith Estate was followed in Al- Sabah Estate 2016 BCSC 1781.

The term revocation, setting aside, as well as recalling are all used interchangeably with respect to an order by the court to in effect cancel the grant of probate and make an order accordingly.

Such applications typically arise as a result of a necessary party not being served with the application materials and then subsequently learning of the grant of probate, and then seeking a remedy to set it aside so as to typically contest the estate.

Another fairly common situation that arises is where the executor fails to serve a common-law spouse of the deceased on typically the basis that the executor believes that it was not a true marriage like relationship that should give rise to the spouse being served with materials.

This in fact occurred in Shaw v Reinharrt 2004 BCSC 588, where the plaintiff in a wills variation action alleged that she had been the deceased common-law spouse as of the date of death. She brought court action 10 months after the grant of probate to the deceased’s sons, which was at that time approximately four months too late. The spouse argued that she had not been provided notice under the Estate Administration act, and the court instead granted the plaintiff leave to move the grant of probate to be recalled.

Similarly, in Somodi v Szabados 2007 BCSC 857 the plaintiff was a common-law husband of the deceased, and the executor under the will was the deceased son, but failed to acknowledge the plaintiff as the deceased common-law spouse, instead contending that the relationship was simply one of landlord and tenant.

The executor did not provide the plaintiff with notice of his application for probate, the plaintiff commenced action under the wills variation act more than two years after the grant of probate.

The court held in favor of the plaintiff stating that where the status of a common-law spouse is at issue, notice of the application for probate must be given and failure to do so, precludes reliance on the limitation period, which is currently 180 days after the grant of probate. The court granted the plaintiff leave to commence a claim and to seek to have the grant of letters probate set aside.

Probate is strictly speaking, the proof of the deceased’s will. In granting probate, ecclesiastical authorities, and later the common-law courts, certified the document proffered as the deceased last will was what it purported to be.

A grant of probate, however, has always had ancillary purposes as well. A court granting probate examines not only the authenticity of the will, but also its validity, both in terms of formalities of execution and capacity of the testator, and the legal capacity of the person appointed as executor, to act as such.

Courts have jurisdiction to revoke grants of probate where evidence discloses that the grant ought not to of issued.

There are numerous grounds in which probate can be revoked– for example, where subsequent wills of the deceased are discovered; where it has been found that the will is otherwise invalid; where has been determined that the testator is not in fact dead; where do sure that the executors under a legal disability ( minority or mental infirmity); and were probate has been obtained by fraud.

In short, where it is shown that a condition precedent to the grant of probate was not fulfilled , the court has jurisdiction to revoke the grant.

As far back as 1670 in Ravensroft v Ravenscroft 1 Lev 305, the court stated that the jurisdiction of the probate court to revoke a grant of administration is quite broad, though it ought to be exercised sparingly.

Reopening a Trial

The law relating to the reopening of a trial and the reconsideration of a previous court order is well settled.

The court has a wide discretion, which should be exercised judicially, with caution and sparingly.

The leading case in British Columbia to reopen the trial is Clayton v British  Securities LTD (19434) 49 BCLR 28 ( BCCA). At paragraph 66 – 67:

“ My view has always been that the trial judge might resume the hearing of an action apart from rules until entry of judgment, but as it was vigorously combated I have given careful consideration. The point as far as I know, has not being squarely decided, at least by any case binding on us. It is I think a salutary rule to leave unfettered discretion to the trial judge. He of course would discourage unwanted attempts to bring forward any new evidence available at trial to disturb the basis of a judgment delivered or to permit a litigant. After discovering the effect of a judgment to re-establish a broken down case with the aid of further proof. If the power is not exercised sparingly, and with the greatest care fraud and abuse of the courts processes would result. Without that power and justice might occur.

Hearing new evidence is a departure from its usual procedure, and it is fitting that departures and ordinary practice should be limited by rules to prevent abuse.– A vested right to a judgment is then obtained subject to a right to appeal and should not be lightly jeopardized . Before the gate is closed by entry a trial judge is in a better position to exercise discretion apart from rules, then an appellate court. The trial judge knows the factors in the case that influenced his or her decision and can more readily determine the weight that should be given to new evidence offered.

 

In deciding whether or not to reopen a case, the governing considerations are:

1) first, what a miscarriage of justice probably occur without a rehearing;
2) would a rehearing probably produce a change of result.

 

The second arm as to whether the rehearing would produce a change of result was examined in Vance v Vance 34 BCLR 209 at page 211, where the court stated the onus is upon the applicant to satisfy the court on the balance of probabilities, the miscarriage of justice would probably occur without the rehearing and that the evidence of argument that he now wishes to present would probably change the result of the trial. That is not to say that at this stage the applicant must satisfy me that a change in the result would be inevitable.

Some of the instances where the discretion has been exercised reopen the trial prior to the entry of a formal order are:

1) the discovery of material evidence not reasonably discoverable at the time of trial;
2) the occurrence of subsequent developments materially different from presume findings relating to future events, including the assessment of prospective damages in light of events after judgment; Lankenau v Dutton (1988) 27 BCLR (2d) 234 affirmed (1991) 55 BCLR (2d) 218 (BCCA)
3) tests performed after judgment, that newly reveal another type of damage caused by the tort;
4) evidence that could have been presented at the hearing or trial that would lead to an injustice;
5) the reasons for judgment rely on an impossible factual conclusion;
6) the terms of the order were uncertain may have patently conflicted with C’s or soon legislation;
7) there is a perceived conflict of interest of a parties lawyer at trial;
8) by oversight counsel neglected to lead evidence that may be material to the outcome MS v R(DD) (1996) 26 BCLT (3d) 231 (BCCA)

The BC Gas utility v . Alpha Manufacturing was most recently followed in Hambleton v Hambleton 2018 BCSC 999, where the court reconsidered a previous order on the basis that there was sufficient new evidence or argument, which, if available at the time of the initial order, would have likely changed the result. The case dealt with new evidence before the court that justified a reconsideration of his previous order as a result of a mental capacity hearing conducted by a person at the patient’s family doctor, but not the doctor herself.

Document Disclosure and Production

Document Disclosure and Production | Disinherited Vancouver Litigation

McLeod v Balakrishnan 2018 BCSC 908 reviews the law relating to document disclosure and production  in litigation.

The case dealt with two applications, namely that the defendant provide a comprehensive list of documents, as well as an order that she produce documents requested of her at her examination for discovery. The action involved a claim under the former wills variation act, and the estate was valued in excess of $19 million.

The plaintiff was the deceased’s son , who claims he was not adequately provided by the deceased.

The deceased set up to trusts that were valued in excess of $135 million that were not included in the valuation of the estate.

The principles considered on applications for document disclosure were summarized in Marsh Canada Limited v BFL Canada Insurance Services, Inc. 2014 BC SC 1171, beginning at paragraph 65:

“The rules provided two-tier process for document disclosure:

  1. Disclosure under rule 7-1(11)-(14) requires all documents that are or have been in the party’s possession or control, and that could, if available, be used by any party of record at trial to prove or disprove the material fact.
  1. Disclosure under 7-1 (11)-(14) requires documents that relate to any or all matters in question in the action. Thus, any document that is identified as relating to a matter in question in the action, which normally would be evidence upon an issue, but also which contains information which may, not which must, either directly or indirectly, enable the party, either to advance his own case, or to damage the case of his adversary. Kaladjian v Jose 2012 BCSC 357 at paras.44-45.
  1. By applying the proportionality principle embodied in rule1-3(2) an attempt is made to balance the burden of producing the documents in terms of time, cost and effort against the materiality and probative value. Proportionality does not only relate to monetary quantification, but also relates to the importance of the issue in question – Isman v City of New Westminster 2011 BCSC 125 at para. 14.

 

The following principles also apply:

  1. Full and complete disclosure between or among litigants prior to trial is essential to the truth seeking function of the litigation process and the proper administration of justice Nikolic v Olson 2011 BCSC 1066 at para. 14;
  2. It is the pleadings that determine relevance- Burgess v Buell Distribution Corportion 2012 BCSC 1494 at paras. 16-17;
  3. The interests of justice may require production of relevant documents, notwithstanding the high interest of a party and keeping it confidential- A.M. v Ryan (1997) 1 SCR 157 at para. 37;
  4. A party asserting that a document is privilege bears the onus of establishing the privilege- Hamalainen v Sippola (1991) 62 BCLR (2d) 254 CA at para. 19;
  5. The removal of the ” train of inquiry” test of relevance will generally require a party to provide some evidence to support an application for additional documents where demand is made under rule7-1(11) or Rule 7-1 (18);

 

The principles that apply in respect of the balance between disclosure and confidentiality were summarized in Altec Design Group Ltd v Motion Works Inc (1992) BCJ 2451 ( SC):

  1. The necessity for complete disclosure litigation cases supersedes the fact that a party may lose a competitive advantage when disclosure is made Forestral Automation Ltd v RMS Industrial Controls Inc (1977) 4 BCLR 219;
  2. In maintaining a balance between disclosure and confidentiality, the governing principle is to lean in favor of openness and disclosure- Deveron-Hercules Inc v. gill 21 CPC ( 2d) 455;
  3. The party viewing the confidential material shall give an undertaking to the court and the opposite party, the terms of which may vary from case to case- GEAC Canada Ltd v Prologic Computer Corp. 24 CPC (3d) 566;
  4. The party who is documents are being disclosed to be examined by an expert is entitled to have a representative present during the examination;
  5. An order preventing counsel from showing relevant documents to his client should only be granted in exceptional circumstances;
  6. The onus is on the party requesting the restriction to establish a legitimate reason for that restriction;
  7. Matters that do not require technical expertise, the parties may be required to produce the documents to a third party for the examination report to the court;
  8. In instances in which the probative value of the documents is not sufficiently great to outweigh the real and very considerable adverse effect of disclosing the trade secret, disclosure ought not to be ordered- Webster v Mastercraft Development Corp. (1991) 55 BCLR (2d) 121

Generally speaking, the court ordered production of several of the financial and estate documents to be produced, while also denying many other requests on the basis that they were unduly intrusive or not relevant.

Encroachment of a Spousal Trust

Encroachment of a Spousal Trust

Toigo Estate 2018 BCSC 936 reviewed the law of the court’s jurisdiction to grant an order approving a resolution of the trustees discretionary power to encroach upon the capital of a spousal trust created by the deceased in favor of his wife.

Pursuant to the spousal trust the spouse was to receive the net income from the estate during her lifetime, and the trustees having uncontrolled discretion to encroach on the capital of the residue of the estate in favor of the spouse during her lifetime.

The amount of the estate was substantial and the trustee approved a resolution allowing the spouse to encroach upon the capital of the estate in the amount of 50% so as to allow her to distribute the estate in accordance with her own estate planning.

The court reviewed the law and allowed the encroachment as recommended by the trustee.

Given the magnitude of the estate and the proposed encroachment, the trustee sought approval of the court prior to proceeding with the encroachment.

S. 86 (1) the Trustee act, RSBC governs the courts exercise of powers in relation to a trust. That section permits an executor or administrator to seek the following by way of petition:

“A trustee, executor or administrator may, without commencing any other proceeding, apply by petition to the court or by summons on a written statement to a Supreme Court judge in chambers, for any opinion, advice or direction of the court on a question respecting the management or administration of the trust property or the assets of the will maker or intestate.”

The court also retains inherent jurisdiction to supervise trust despite statutory enactments on the matter.

In Public Guardian and Trustee v Colwell 2004 BCSC 1622 qt para. 32 . The court stated:

“Donovan Waters Law of Trusts in Canada notes that courts have retained their inherent jurisdiction to supervise trusts – none of this legislation is taken away the inherent powers, so that the courts can fall back upon them should the statutory powers prove inadequate.

The key principle governing the courts inherent jurisdiction is the welfare of the beneficiaries of the trust.

In Mansbridge and Roulston 2004 BCSC 1605 , the court discussed section 86 of the Trustee act, and at paragraph 51 stated “ on an application for directions under section 86 of the Trustee act, the court should not exercise the trustee’s powers, but rather confine itself to advice on any legal issues that arise in connection with the trustees obligations. The principle is enunciated In re Fulford (1913) 29 )LR 375 at 382.

In Tomlinson Estate 2016 BCSC 1223 at paragraph 53-54, the court quoted Waters Law of Trusts in Canada, stating” the issue of management or administration as a limitation upon the trust the act power of the court to give his advice, opinion, or direction as being more particularly raised in connection with motions which turned out to involved a conflict as the ownership of the assets. The courts refused to give such assistance when there is essentially a conflict between interested parties, and this is not merely because the court has not necessary evidence before it, because it is felt that a fight whether or not it is patent, is not a matter of management or administration”

The court relied upon the inherent jurisdiction of the court to permit the substantial encroachment sought by the petitioner, as the encroachment would affect the residual beneficiaries being the grandchildren of the deceased in and to the substantial estate.

In Courage estate 1975 10 NFLD & PEIR 511 the court stated that the law is long settled that were trustees are given the right to encroach on capital, coupled with broad discretionary powers, the courts will not interfere with the exercise of these powers unless they are exercised unfairly and there are no mala fides with regard to their exercise.

“It is the noted that in this case, the trustees are given power to encroach on the capital of the whole residuary estate, not just a portion thereof, and I can find nothing in the will to support the contention that the amounts to be divided amongst the children after the way staff, are to be placed in any special category during her lifetime.”

Essentially, the court is in effect making a declaration that the trustees proposed exercise of the power is lawful, in other words, that the proposed exercises within the proper ambit of the power, but the trustees are acting honestly, as in reaching their decision.

The trustees have taken into account all relevant matters, have taken into account no irrelevant matters, and have not reached a decision that no reasonable body of trustees could have reached. The effect is to protect the trustees from any challenge to the decision by persons interested in the trust, and to make clear that the trustees are entitled to indemnity from the trust assets in respect of the costs or other financial consequences of their decision. It is immaterial that the court had it been exercising a discretion of its own, would’ve exercised it in a way different from that proposed by the trustees.
The court, however, should exercise caution, and not act as a rubberstamp or take a lax approach.

The court found that all of the above-noted legal considerations are consistent with section 86 (1) of the Trustee act

The court found that the trustee’s decision was made in good faith, that he did not stand to gain from the encroachment in any way, and the proposed division, that is equal shares between each of the deceased children and equal shares between the grandchildren, is a desirable and proper encroachment by the spouse of the deceased in order to more equitably distribute the estate amongst the grandchildren of the deceased.

Adjournment of Trials

Adjournment of Trials | Disinherited Vancouver Litigation

The adjournment of a trial is a discretionary matter to the court, and the discretion must be exercised in accordance with the interests of justice, which in turn require a balancing of the interests of the parties.

The facts of the application for an adjournment are often very important to the application of the legal principles governing same.

One aspect of the overall interests of justice is bringing matters to an expeditious conclusion. In the BC Court of Appeal decision Sidoroff v Joe 76 BCLR )2d) 82 . The court stated at paragraph 10:

The balancing of the interests of justice is a difficult and delicate matter that requires a careful consideration of all of the elements of the case, and certainly one of them is the expeditious and speedy bringing to a conclusion of these matters. So there is no error in principle in stating that as an aspect of the overall interests of justice.

One of the leading case in British Columbia is Navarro v Doig River First Nation 2015 BCSC 2173, where the court adjourned the trial and reviewed the law relating to same.

The court may order adjournment of a trial by application pursuant to rule 12-1(9) (a) or at a trial management conference, according to Rule 12-2 (9) (1) .

An adjournment under Rule 12-2 cannot be based upon affidavits, but can be based upon the trial briefs and statements of counsel, even if one party objects.

If a trial management judge considers that further evidence by way of affidavit is required, the matter be referred to a chambers judge for application. Reasons for an adjournment at a a trial management conference include that the matter cannot be completed in the time set for trial or that there are outstanding pretrial matters that show that the matter is not ready for trial.

A judge has broad 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 legal principles. The exercise of discretion is a delicate and difficult matter that addresses the interests of justice might balancing the interests of the plaintiff and of the defendant.

There are numerous factors to be considered on an adjournment application. The paramount consideration is the interests of justice and ensuring that there will remain a fair trial on the merits of the action- Graham v Vandersloot 2012 ONCA 60.

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

Factors or considerations to adjournment trial in no particular order of priority are:

• the expeditious and speedy resolution of matters on their merits;
• the reasonableness of the request;
• the timeliness of the request;
• 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;
• the fact of a self represented litigant

Securing a fair trial on the merits of the action is the ultimate goal. This requires consideration of the nature of the claim. If the claim is novel, then the prospect for success is one factor to consider. However, the prospect for substantial succession not be the sole basis for refusal of an adjournment.

Also, for consideration is the question of whether there has been a previous adjournment, and if so, the reasons for that, prior adjournment. If the circumstances of not changed, subsequent application will likely not be successful.

Timeliness of the request is a factor. An application made it the opening of trial on the grounds that a party cannot be present will be carefully scrutinized as to the effect upon other parties, whether the parties evidence is crucial, and what other recourse was available. If the trial is already underway in adjournment may be indefinite, the court will want to consider whether to certain that granting an adjournment would resolve the issue that was the cause of the adjournment request.

The explanation for the need of an adjournment is an important consideration. It is been said that simple neglect to get property ready for hearing, while irksome for the other party, will still usually lead to an adjournment on the 30 that the prejudice to the person denied the adjournment will be greater than prejudice to the person who’s forced to accept an adjournment.

Prejudice to the parties. If an adjournment is granted or not granted must be considered. Any prejudice to be suffered by either side must be weighed and balanced. However, it is non-compensable prejudice that is pivotable. If the problems raised by an explanation of prejudice can be met by conditions of an adjournment, then, upon consideration of all of the circumstances, and adjournment may be granted.

Overall delay in the history of proceedings may be a factor. Prolonged delay due to tactical considerations may be inexcusable and resulting injustice to the other side because a fair trial is no longer possible. However, a delay forced on a party by negligence listers, impecuniousity, or illness is distinguished from tactical delay. The issue is whether the delay is excusable in light of the reason for it, and other circumstances.

The fact that a litigant’s self representative is relevant, but does not entitle him to a pass. The object is to facilitate as far as reasonable the ability of a self represented litigant to fairly present his case on the relevant issues.

The court may impose terms and conditions to an adjournment under rule 13 (1) (19) , however, the terms must be just and all of the circumstances. A party seeking certain terms and condition should generally prove that he or she will be prejudiced in some way by the order.

Converting a Petition to an Action

Converting a Petition to an Action

Certain claims such as proving a will in solemn form must be brought by petition, and if the matter is to proceed, the petition must be converted to an action by way of a court order.

In Kerfoot v Richter 2018 BCCA 238 the executor of an estate brought a petition to prove the will of the deceased in solemn form. The beneficiaries in the will were the deceased’s three adult children, one of whom received only a small portion of the estate. The appellant disputed the validity of the will and applied to have the proceedings converted from a petition to an action. The appellant contended that the deceased lacked testamentary capacity of the will was procured as a result of undue influence by her two siblings, the respondents.

Her application was dismissed by the chambers judge but the Court of Appeal allowed the appeal and ordered that the petition be converted to an action.

The appeal court stated that the test to be applied on an application to convert a proceeding brought by petition to an action is whether on relevant facts and applicable law, there is a bona fide triable issue. The materials before the chambers judge were sufficient to establish a triable issue.

In making the order to convert the petition into an action, the trial judge will continue to have full discretion to give directions concerning the out procedure to be followed in accordance with Supreme Court rules 22 –1-(7) (d) and 25-14 (8).

Rule 25-14(8) provides a similar discretion to the court to give directions about the procedure in estate matters, and provides:

8. Without limiting any other power of the court under this or any other part of the Supreme Court civil rules, the court may, on its own motion or on application, give directions concerning the procedure to be followed in any matter under this part, and without limiting this, they give directions respecting any of the following:

a) The issues to be decided;
b) who the parties will be, including directions for the addition or substitution of a party
c) how evidence may or must be presented;
d) summary disposition of any or all issues in the matter
e) the trial or any or all of the issues in the matter
f) pleadings;
g) examinations for discovery and discovery of documents, service or delivery of a notice, process, order or document on any person
h) dispensing with service or delivery
i) representation of any person or interest.

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

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, the court must not way it, but is limited to assessing whether it establishes a triable issue. The court referred to Skye Bridge investments LTD v. Metro motors LTD 2006 BC CA 500:12. If sufficient material facts of being pleaded to support every element of a cause of action, but one or more of those pleated material facts are contested, then the judge ruling on a rule 18 (6)  application is not to weigh the evidence to determine the issue of fact for the purpose of the application. The judges function is limited to a determination as to whether a bona fide triable issue arises on the material before the court in the context of the applicable law. If a judge ruling on a rule 18 (6) application must assess and weigh the evidence to arrive at a summary judgment, the plane and obvious are beyond doubt test is not be met.

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 there is a triable issue cannot rely on mere allegations, but must establish the existence of material issues , Canada v Lameman 2008 SCC 14 at paragraph 11. It is this latter requirement that precludes a matter from being referred to trial on the basis of mere assertions.

Witness Immunity and Republication of Judgements

Witness Immunity and Republication of Judgements

I have on occasion received letters from parties involved in litigation that I have blogged about demanding that I remove the blog because of involving their name, however the law is clear that republication of a judgment without amendment or commentary that remains in force does not afford a party aggrieved by the judgment to a civil claim.

The BC Court of Appeal recently dealt with the immunity of a witness in respect of evidence given in court, and the issue of republication of a judgment in Lefebvre v Durakovic Estate 2018 BCCA 201.

The court held that a witness enjoys absolute immunity in respect of evidence given in court, and that republication without abridgement, alteration or commentary of a judgment that remains in force does not afford a party aggrieved by the judgment to a civil claim.

The plaintiff had commenced a broad ranging action against defendant alleging various forms of abuse, defamation, breach of trust, breach of contract, extortion, intimidation, negligence and so forth, and the plaintiff appealed the judge’s decision to strike out portions of the action on of the basis of an abuse of process by giving false testimony before the registrar.

The court initially discussed the issue of witness immunity and quoted the decision McDaniel v. McDaniel 2008 BCSC 653, varied, at 2009 BCCA 53 , which held that witnesses are absolutely immune from civil liability for anything that they say in court, even if what they said is false, and even if they harboured malicious motives for giving evidence. The immunity is expensive. It applies to evidence given before quasi-judicial administrative tribunals as well as courts. It also applies to out of court statements made in the course of preparing to give testimony, and even to discussions with counsel for the purpose of determining whether or not the witness has relevant evidence to gift, or litigation that is in contemplations, statements made by a potential witness on the subject matter of the litigation will fall within this immunity.

The immunity is essential to the administration of justice in order to foster an atmosphere in which witnesses and counselor unfettered in their preparations for judicial proceedings, neither should face the possibility of a civil suit over there discussions. The needy, however, does have limits. It is not apply to everything a lawyer does in his or her professional capacity, nor does it apply simply because matters discussed between the parties might potentially at some point come before judicial or quasijudicial body. The immunity is directed at facilitating the gathering and preparation of evidence for litigation. That is not the context in which a statement is made the immunity will not apply.

The lawyer had republished the judgment on his website and the plaintiff took issue with this and the court held that the plaintiff had no cause of action in respect of the publication of the chambers judge’s reasons for judgment.

The court held that the accurate republication of a decision of the court is subject to at least qualified privilege. The materials provided by counsel in the court application included a reference to the judgment of McDougall v. Knight (1890) 25 QBD 1 (C.A) which set out the rationale for the privilege:

The judgment of a judge of the land is in itself an act of such public and distinct character as to make it in the interest of the Commonwealth that they should know it in toto, and provided it is either given verbatim correctly, or correctly summarize, it seems to me that the public policy requires that to be the law, I have no hesitation in saying that I believe that to be the lot the present day. It appears to me that it would be to put an end you fetter on the press to hold that the publication of the judgment is not privileged. Unless the judgment fairly summarize the evidence. I cannot doubt that the judgments of courts must be presumed to be fair, accurate inadequate and to make the person who report such a judgment prove that it is so, when to put on him a burden inconsistent with the interests of the Commonwealth.

In 1890, the main way of publishing judgments would’ve been through the press, and the court held that the same rationale is available today in respect to publication on the Internet.

The appeal court held that the judge was correct in finding that the plaintiff could have no claim in respect of the republication. The publication complained of in parts of the claim that were struck was of a judgment that continued in force. The judgment was not the subject of any publication ban. In publishing the judgment. The defendant did not abridge, alter, nor did he comment on it. It is not alleged in the context in which the judgment was published distorted the findings of the court

Absent special circumstances such as a publication ban, the publication of a judgment is in the public interest. A judge and is unlike other court documents, such as pleadings, arguments are affidavits. A judgment as a public declaration of an independent, impartial body vested with the authority to make decisions.

The mere fact that a person feels aggrieved by the judgment of a court does not give them a right to restrict its publication order claim, damage in respect of it. Merely alleging that a person who republishes a judgment is motivated by malice does not turn the completely lawful dissemination of a public decision of the court into an actionable tort.

The court did leave open the possibility that republication of a judgment could give rise to copyright issues or privacy legislation as same were not involved in this case.

Impeaching Witness Credibility

Impeaching Witness Credibility

The Supreme Court of Canada summarized the law relating to the impeachment of witness credibility in the rule in Browne v. Dunn in R.v Lyttle 2004 SCC 5 at paragraph 64:

“The rule in Browne v Dunn requires counsel to give notice to those witnesses whom the cross examiner intends later to impeach. The rationale for the rule is that the cross examiner should give an opportunity of making any explanation, which is open to the witness, not only as a rule of professional practice in the conduct of the case, but that is essential to fair play and fair dealing with witnesses.”

The rule although designed to provide fairness to witnesses in the parties, is not fixed, and the extent of its application is within the discretion of the trial judge, after taking into account all of the circumstances of the case.

In R.v Quansah 2015 ONCA 237 at paragraph 77 the court summarized the fairness considerations animating the confrontation principle:

1. Fairness to the witness whose credibility is attacked: the witnesses alerted that the cross examiner intends to impeach his or her evidence, and given a chance to explain why the contradictory evidence, or any inferences to be drawn from it, should not be accepted;

2. Fairness to the party whose witness is impeached- the party calling the witness has notice of the precise aspect of that witnesses testimony that are being contested, so that the party can decide whether or what confirmatory evidence to call; and

3. Fairness to the trier of fact: without the rule, the trier of fact would be deprived of information that might show the credibility impeachment to be unfounded, and this compromise the accuracy of the verdict.

The purpose of the rule in Browne v Dunn is to protect trial fairness. (– R. Podolski 2018 BCCA 96 at paragraph 145)

While it is often referred to as a rule, it’s legal application will depend on the circumstances of the case. The rule is not ossified, and flexible rule of universal and unremitting application that condemns a cross examiner who defaults to an evidentiary abyss.

The jurisprudence reflects that were trial fairness is unaffected by lack of cross examination, a cross examiner’s failure to confront a witness will not violate the rule in Browne v. Dunn.

This may be a case where it is clear or apparent, on considering all of the circumstances, which may include the pleadings and questions put to the witness an examination for discovery, that the witness or opposite party had clear, ample and effective notice of the cross examiners position or theory of the case. Therefore, where the other party, the witness, and the court are not caught by surprise because they are aware of the central issues of the litigation, the rule in Browne v. Dunn is not engaged.

Where the rule is engaged, a trial judge enjoys broad discretion in determining the appropriate remedy, and there is no fixed consequence for an infringement of the rule.

Factors to consider:

In Quansah at paragraph 117, the court listed the following factors that may inform the appropriate remedy:

  • The seriousness of the breach;
  • the context of the breach;
  • the timing of the objection
  • the position of the offending party;
  • any request to permit recall of a witness
  • the availability of the impugned witness for recall;
  • the adequacy of an instruction to explain the relevance of failure to cross examine.

A trial judge may diminish the weight of the contradictory evidence. Other remedies include recalling the witness, and in the jury context, giving a specific instruction to the jury about the failure to comply with the rule as a factor to consider in assessing credibility.