Adding a Party to an Action

Party to an Action

Stewart v. Stewart 2016 BCSC 1576 dealt with an application to adding a party to an action under  Rule 6-2(7)(b) and (c) of the Supreme Court Civil Rules, B.C. Reg. 168/2009.

The applicants were beneficiaries under two  trusts settled by the deceased. The total value of the combined assets of the deceased exceeded $500 million .

The court added the additional parties as necessary parties to ensure that all matters in the proceeding are effectually adjudicated upon.

A: RULE 6-2(7)(b)

34      This subrule provides two alternate tests:

  • whether the person ought to have been joined as a party, or
  • whether that person’s participation in the proceeding is necessary to ensure that all matters in the proceeding may be effectually adjudicated on.

35      The Applicants, relying on Kitimat (District) v. Alcan Inc.,2006 BCCA 562at para. 28, submit that if either of the circumstances referred to in paragraph 34 above arise, then the person should be added as a party.

36      They argue it is necessary to join the Applicants as defendants since their direct interests might be affected by the granting of the relief sought in the NOCC.

37      Kitimat was considered and applied in Delta Sunshine Taxi (1972) Ltd. v. Vancouver (City), 2014 BCSC 2100at para 14:

[14] “Ought” is a broader concept than “necessary” and includes situations in which joining the person may be more than mere convenience but less than necessity (Kitimat at para. 29). Necessary parties are those whose direct interests might be affected by the relief sought (Canadian Labour Congress v. Bhindi (1985), 1985 CanLII 384 (BC CA), 61 B.C.L.R. 85 at 94 (C.A.) (Canadian Labour Congress), Kitimat at paras. 30-32). In Kitimat, the petitioners sought to quash a decision of the province that authorized Alcan Inc. (“Alcan”) to sell hydro power that it produced for use outside of Kitimat’s aluminum industry, without adding Alcan as a party. The Court found that Alcan ought to have been joined and that Alcan was a necessary party because a binding order would limit the instruments held by Alcan, without its participation. In other words, the effect of the petition could be to limit the ability of Alcan to sell the hydro power it produced, so affecting the value of the power and the financial interests of Alcan.

 

43      While it is the case that the Applicants and the trustee defendants take a similar position in opposing the plaintiff’s claims, as between the plaintiff and the Applicants, this is a case where “the rights of the beneficiaries inter se are to be affected by any order which might be made”. There is a different position being advanced between the plaintiff qua beneficiary and the Applicants qua beneficiaries: Re Herron Estate, [1941] 3 W.W.R. 877 (BCCA) at para. 7, [1941] 4 D.L.R. 203; see also Boe v. Alexander, 21 E.T.R. 246 at para. 105, affirmed (1987), 15 B.C.L.R. (2d) 106 (BCCA).

44      It may also be the case that certain beneficiaries may agree with the plaintiff that the Expedited Inheritance should occur.

45      Accordingly, the Applicants have satisfied both of the alternate tests referred to above. Notwithstanding the plaintiff’s lack of consent, they have also established “strong reasons” to be added as defendants should that be their wish to do so.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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