Change of Venue of Trial

      Harder v Harder estate 2017 BCSC 425 discussed the law relating to changing the venue of trial or interlocutory proceedings from where the action was originally commenced to another city.   The defendants in Harder sought an order transferring the proceedings  from Victoria to… Read more

Res Judicata, Cause of Action Estopppel and Merger in Judgement

Wolverton Securities Ltd v Schemel 2009 BCSC 1048 discusses the concepts of res judicata, cause of action estoppel and merger in judgement and states that the concepts are often used interchangeably in various judgments.   The concepts essentially bar a litigant from suing a second… Read more

Civil Fraud

The tort of civil fraud ( as opposed to criminal fraud)  was reviewed by the Supreme Court of Canada in Bruno Appliance and Furniture Inc. v Hyrniak 2014 SCC 8  and concluded there are four elements .   18      The classic statement of the elements… Read more

Pleading the Tort of Conspiracy

It occasionally occurs in estate litigation that parties conspire with others to defeat the claims of a party that give rise to a court  pleading of the tort of conspiracy.   For example, I recently had a situation where the executor attempted to sell the… Read more

The Principles of Interpreting Contracts

Dusanjh v Wright Estate 2017 BCSC 340 sets out the law relating to interpreting contracts when there is an ambiguity as to it’s meaning.   The children of the deceased brought a petition that argued the deceased had established a trust in their favour and the… Read more

Striking Out a Court Pleading

A court pleading may be struck out by the Court pursuant to Rule 9-5 ( 1) which states: 1) At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of pleading, petition or other document… Read more

Misfeasance of Public Officials

It occasionally occurs in estate litigation that a party has complaints about the misfeasance of  public officials, (usually  against the Public Guardian and Trustee), as a result of perceived deliberate  unlawful actions on the part of the public official against the complainant . The tort… Read more

Amending Court Pleadings

Russell Estate v Larson 2017 BCSC 113 contains a good summary of the law relating to amending court pleadings.   Pleadings are very important in litigation so as to give a concise definition of the issues to be tried and to allow the opposing party… Read more

Executor Added After Expiration of Wills Variation Limitation

Wills Variation Limitation. Under the provisions of section 60 WESA, an action under the wills variation provisions must be commenced within 180 days of the grant of probate or the action is statute barred. In the 1987 decision Cowan v Cowan 17 BCLR ( 2d)… Read more

Damage Assessments on Appeal

The appeal case of Gadhri v 0760815 BC Ltd 2017 BCCA 31 confirmed long standing law that an appeal court will not vary a trial judge’s award of damages assessments unless the following occurs: “An appellate court will not interfere with a trial judge’s assessment… Read more

Mistake

Teather v Kawashima 2016  BCSC  2231 involved litigation where the defence of mistake was argued and the Court reviewed the law.   When parties are negotiating a contract it may occur that  one party is thinking of one thing while the other party is thinking… Read more

Fertility and WESA

A deceased husband’s frozen sperm at a fertility centre was declared to be personal property under WESA and previous case law and thus could be inherited by the widow on an intestacy. The court in KLW v Genesis Fertility Centre 2016 BCSC 1621 ordered to release of… Read more

Gifts In Contemplation of Marriage

Gifts In Contemplation of Marriage. P.S. v H.R. 2016 BCSC 2071 involves a claim for the return of a gift ( a $17,000  engagement ring) made in contemplation of marriage arising from a whirlwind relationship of three months that abruptly ended due to the plaintiff’s… Read more

Measuring Tort Damages

In Trotter –Brons (Litigation guardian) v Corrigan 2016 BCSC 1891 the court sets out the rule for measuring tort damages. Action was brought pursuant to Family Compensation Act for damages arising from deaths of infant plaintiff’s biological parents who were killed in motor vehicle accident… Read more

ReOpening a Case For New Evidence

B(K) v B(J) 2016 BCSC 1904 involved an application for reopening a case that had been decided and attempt to introduce new evidence as to the increased valuations of two properties.   The over riding test is  it in the interests of justice to do… Read more