Court Declines to Order Two Consolidated Actions For Trial

Consolidated Actions For Trial

Suzuki v. DeValone, 2013 BCSC 632 was an appeal from a Masters decision who declined to order two separate actions to be consolidated for trial.

The BCSC, Justice Bowden agreed and dismissed the appeal

[21] In my view, the learned master found correctly that the issues in the two actions are completely different. Furthermore, the parties are not the same. In my view, the learned master correctly applied the decision in Peel. It was not said in Peel, as submitted to the master by the appellant, that if one matter disposes of the other, then they should be consolidated.

27] While that disposes of the grounds of appeal I will add that, although they were not referred to by her, in my view the decision of the learned master is in accordance with the principles enunciated by Master Kirkpatrick, as she then was, in Merritt v. Imasco Enterprises Inc. (1992), 2 C.P.C. (3d) 275 [Merritt].
[28]
At paras. 18 and 19 of Merritt, Master Kirkpatrick stated:
None of the submissions of counsel address the real issue to be determined. That is, are the issues raised by the pleadings sufficiently similar to warrant the order sought and will the order make sense in the circumstances? An application to have actions tried at the same time thus requires an examination of circumstances which may be of a more general nature than is made under R. 27 or 19.
I accept that the foundation of an application under R. 5(8) is indeed disclosed by the pleadings. The examination of the pleadings will answer the first question to be addressed: do common claims, disputes and relationships exist between the parties? But the next question which one must ask is: are they “so interwoven as to make separate trials at different times before different judges undesirable and fraught with problems and economic expense”? Webster v. Webster (1979), 12 B.C.L.R. 172 (C.A.). That second question cannot, in my respectful view, be determined solely by reference to the pleadings. Reference must also be made to matters disclosed outside the pleadings:
(1) Will the order sought create a saving in pre-trial procedures, (in particular, pre-trial conferences)?;
(2) Will there be a real reduction in the number of trial days taken up by the trials being heard at the same time?;
(3) What is the potential for a party to be seriously inconvenienced by being required to attend a trial in which that party may have only a marginal interest?; and
(4) Will there be a real saving in experts’ time and witness fees?

Contract Void For Mutual Mistake

mistake twice

Mutual mistake may void a contract.

The law of mutual mistake is set out in Bell v. Lever Bros., [ 1932] A.C. 161, and Dyson v. Moser, 2003 BCSC 1720.

A contract will be void from the start for mistake if a mistake by both parties to the contract renders the subject matter of the contract fundamentally different from that which both parties believed to exist at the time they entered into the contract, so long as the party seeking to set it aside was not at fault for the mistake

The executors bought court action re a complicated buy- sell agreement.

The court dismissed most of the action on the basis that both parties to the purported contract were mistaken about a fundamental term, the pice, and thus the contract void as there was no consensus ad item between the two parties

The failure to agree on the terms on which the purchase price would be paid, an essential term, means that there was no enforceable contract.

As a result, the parties did not reach a binding agreement on the terms for RR to buy BK’s shares in Kraft through the exchange of letters dated March 8,2007 and April 18,2007.
If so, was there a mutual mistake about something fundamental to that contract?

 

Re Opening a Completed Trial

Come IN

On rare occasions a trial that has been completed and judgement rendered, may be re opened.

Moradkhan v. Mofidi, 2013 BCCA 132 deals with the BC Court of Appeal dealing with the legal issue of when it may be appropriate, or not, for a trial judge to ” re-open” a trial, after judgement has been delivered. Generally speaking, once that has occurred, the trial court is “functus”, and a remedy if available, is to appeal.

Following a three day summary trial the chambers judge delivered her reasons for judgment on April 15, 2011: 2011 BCSC 485. After release of that judgment, an application to reopen the trial was brought by the appellant wife, Ms. Moradkhan. The application did not complete in the allotted time, and the judge invited the parties to make written submissions. Both parties made additional submissions, including submissions on matters that were not part of the application to reopen. They both filed additional evidence. Based on these additional submissions and evidence, and without a further oral hearing, the judge delivered supplementary reasons for judgment on August 25, 2011, almost entirely replacing her earlier judgment: 2011 BCSC 1157. A final, clarifying judgment was released several months later on May 17, 2012: 2012 BCSC 722.

The appeal court found fault with Justice Loo’s use of her discretion, and ordered a new trial.

The legal principles that govern the exercise of a judge’s discretion to reopen a trial (before judgment has been entered, as was the case here) are well settled.

Appeal Court Rules

[29] In Mohajeriko v. Gandomi, 2010 BCSC 60, 80 R.F.L. (6th) 435, MacKenzie J. (as she then was), in a family division of property case strikingly similar on its facts to the case at bar, summarized the leading cases on this question, beginning at para. 20 of her reasons for judgment:

[20] The defendant relies on my discretion to re-open the trial under Rule 40(7):

40(7) Where a party omits or fails to prove some fact material to the party’s case, the court may proceed with the trial, subject to that fact being afterwards proved as the court shall direct …

[21] The application to reopen the trial is said to be based on the discovery of new evidence. That was the basis advanced for reopening in Clayton v. British American Securities Ltd., [1934] 3 W.W.R. 257 (B.C.C.A.), which is generally regarded as the leading decision on the subject in this province.

[22] The Court of Appeal in Clayton held that the ability of a trial judge to reopen an issue before the order for judgment had been entered is an unfettered discretion, but one that is to be used sparingly. The basis for that principle is found in the judgment of Macdonald, J.A. at p. 295:

It is, I think, a salutary rule to leave unfettered discretion to the trial Judge. He would of course discourage unwarranted attempts to bring forward new evidence available at the 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 Court’s processes would likely result.

[23] In Mandzuk v. Vieira (1983), 43 B.C.L.R. 347, McLachlin J. (as she then was), reviewed the principles upon which the court’s discretion under Rule 40(7) will be exercised (at page 350):

(a) The rule is to be “used sparingly, only if a clearly meritorious case is made out and where substantial injustice might otherwise be done, as no doubt it is a rule easily susceptible to abuse and liable, if too freely applied, to serve as an encouragement to carelessness”: [citation omitted].

(b) The rule is not designed to enable a party to put his case twice, but rather to prevent the claim being disposed of without consideration of its merits; [citation omitted].

(c) The rule should not be used to permit introduction of a substantial amount of new evidence relating generally to the issues in the case: Swami v. Lo (No. 2) (1979), 15 B.C.L.R. 321. It may be noted that the rule uses the word “fact” in the singular rather than referring to the more compendious term “evidence”.

(d) The rule refers to proof of “some fact” omitted, not to proof of opinions. It does not appear to permit reception after the trial of opinion evidence.

(e) The Court must be careful to avoid the abuse to which the rule is susceptible. In this connection, it is relevant to inquire into the reasons for the failure to prove the omitted fact at trial. While it is not essential to establish that the failure to tender the evidence at trial was the consequence of an accidental slip or oversight, such evidence counters the possibility that the applicant deliberately or heedlessly split his case thereby abusing the process of the Court.

[24] In Akkor v. Roulston, 2009 BCSC 1584, the defendant sought to re-open the trial to introduce new evidence about the sale of his properties. Wedge J. summarized the principles applicable to the reopening of an issue to receive new evidence at paras. 20 to 21 as follows:

[20] A trial judge’s ability to re-open an issue to hear new evidence before formal judgment has been entered is an unfettered discretion that is to be used sparingly: [citation omitted].

[21] The test for reception of new evidence following the completion of trial and the delivery of judgment is not controversial. The party seeking to adduce such evidence must satisfy the court on a balance of probabilities that (i) a miscarriage of justice would probably occur without the rehearing and (ii) that the evidence or argument he now wishes to present would probably change the result of the trial: [citation omitted].

[25] Wedge J. addressed the difficulty of achieving fairness as a moving target, quoting at para. 30 the following passage from Gilpin v. Gilpin (1990), 50 B.C.L.R. (2d) 251, 29 R.F.L. (3d) 250 (C.A.) at p. 7:

My second observation relates to the submission of counsel for the respondent that the value of the matrimonial home may well have fallen since the date of trial and that what may appear to be fairness to the wife is, in fact, unfairness to the husband, because of what may well be a decline in value. I am sympathetic to this submission but I consider that it is a result of the legislative scheme adopted in the Family Relations Act. Continuing fairness is impossible to achieve. Fairness at a particular point in time is the legislative goal.

[26] At para. 31 of Akkor, Wedge J. discussed the application of Gilpin in Hodgkinson v. Hodgkinson, 2004 BCSC 1630, aff’d 2006 BCCA 158, 53 B.C.L.R. (4th) 52:

In Hodgkinson, following the publication of the trial judgment, one of the parties applied to the trial judge to lead evidence that the proceeds from the sale of the matrimonial home were significantly less than anticipated in the judgment. At trial, the applicant had attempted to persuade the court to value the home at $2 million on the basis that when it was listed and sold it might sell for less than the listed price. The court instead valued the home at $2.2 million. The home was sold post-judgment for $2 million. The court refused the application to re-open the issue on the basis that the sale of the home – and the possibility that it would sell for less than the listing price – was contemplated in the reasons for judgment and was thus not “new evidence” that would have changed the result of the trial if it had been advanced earlier. Citing Gilpin, the court held that continuing fairness is difficult to achieve, and that fairness at a particular point in time is the goal. Fairness had been achieved at trial using a value of $2.2 million, and there was no injustice in maintaining the valuation at trial in all of the circumstances of the case.

[27] Finally, in Cheema v. Cheema, 2001 BCSC 298, 89 B.C.L.R. (3d) 179, the court noted that where a change in circumstances is, in effect, an argument that could have been presented at the original trial, the following principle from Sykes v. Sykes (1995), 6 B.C.L.R. (3d) 296 (C.A.), at para. 12 applies to bar the exercise of discretion to re-open:

Credibility Is Everything In a Lawsuit

Credibility caution

Credibility-Every trial lawyer can tell you how he or she had a great case, except the #%~|\#* Judge did not believe a word your client said!

It often comes down to who a Judge believes and accepts as a credible witness, as opposed to the opposite. I have seen cases where a judge did not believe the witnesses on either side.

The issue of conflicting evidence given by witnesses for each side is one that requires a trial by a judge with or without a jury, as it is near impossible to judge credibility from reading affidavits- the judge needs to observe and listen carefully to not only what the witness says, but how they appear doing it as well.

The law of credibility can be summarized as follows:

Credibility

In such cases where the parties assert inconsistent versions of the events at issue, it is useful to consider a number of factors including the attitude and demeanour of the witness whose testimony is at issue, the extent to which his or her evidence agrees with that of third parties who have no stake in the outcome of the lawsuit, or of other objective evidence, the likelihood or objective probability that the evidence being advanced is accurate or inaccurate, the interest of the witness has in the outcome of the case, and the ability of the witness to perceive, remember and articulate what he or she is testifying about.

] In Faryna v. Chorny [1952] 2 D.LR. 354 at 357, 4 W.W.R. (N.S.) 171 (B.C.C.A.), O’Halloran J.A. made the following observation:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

The Law of Set-Off – “I Don’t Owe You Because You Owe Me”

The Court of Appeal reviewed the law of set-off in Wilson v. Fotsch, 2010 BCCA 226. It described equitable set-off as being available provided that there is a relationship between the cross-obligations such that it would be unfair or inequitable to permit one to proceed without taking the opposing claim into account. The requirements for a claim of equitable set-off are as follows:

1. The party relying on a set-off must show some equitable ground for being protected against his adversary’s demands;
2. The equitable ground must go to the very root of the plaintiffs claim before a set-off will be allowed;
3. A cross-claim must be so clearly connected with the demand of the plaintiff that it would be manifestly unjust to allow the plaintiff to enforce payment without taking into consideration the cross-claim;
4. The plaintiff’s claim and the cross-claim need not arise out of the same contract; and
5. Unliquidated claims are on the same footing as liquidated claims.

[261] The textbook by S.M. Waddams, The Law of Damages, looseleaf (Toronto: Canada Law Book, 1991 at para 1.1770, says the following with respect to tortfeasors who use the proceeds of a conversion to pay down the plaintiff’s debts:
The preferable view, therefore, seems to be not to reduce recovery, on account of repayment of the debt, in any case in which the defendant could not, in an independent action, obtain restitution for the benefit conferred upon the plaintiff by repayment of the debt.

[262] Mr. Justice Stinson of the Ontario Superior Court of Justice commented on the court’s unwillingness to allow recovery of benefits conferred by “officiousness” in J. B.C. Consulting Inc. v. Gray (2000), 47 O.R. (3d) 212 at para. 19, as follows:
[19] Historically, juridical justification for retention of the benefit has been described as existing where a plaintiff acted officiously, or where the defendant has been the unwilling or unwitting recipient of benefits conferred by the plaintiff, that is, where the defendant’s affairs have been interfered with via the plaintiffs payment without the defendant’s awareness or despite the defendant’s objections. The courts have allowed recovery where

the plaintiff has conferred the benefit on the defendant as the result of a legal or practical compulsion, in the absence of officiousness.
[263] Stinson J. allowed the set-off in JBC Consulting. Although there was no compulsion on the plaintiff to confer the benefit, the defendant knew of the benefit he would receive before it was given. Although the defendant did not acquiesce, neither did he object.
[264] Stinson J. also adopted the following passage from J.D. McCamus and P.D. Maddaugh, The Law of Restitution in Canada (Aurora: Canada Law Book, 1990) at 739-740, as an accurate statement of the modern approach to restitution:

In sum, the few unfortunate constraints that have developed in connection with the principle enunciated by Cockburn C.J. in Moule v. Garrett must perforce lose much of their relevance in light of the modern theory of the law of restitution based upon the doctrine of preventing an unjust enrichment. Thus, it should not matter that one party has discharged another’s liability in circumstances of practical, as opposed to strictly legal. compulsion. Nor should it be of concern if the liability of each of the parties should arise from different sources. Indeed, in cases of practical compulsion or economic duress, it is meaningless to speak of any liability whatsoever on the part of the plaintiff to have satisfied the obligation owed by the defendant. Discharge of another’s liability ~ although conferred in an indirect fashion ~ is, after all, simply one form of enrichment. So long as that benefit is bestowed by a plaintiff in circumstances such that the defendant cannot, in all good conscience, retain it, restitutionary relief ought to be awarded…

Solicitor Client Privilege

Solicitor Client Privilege

 

[22] Recently the Supreme Court of Canada has said that to ensure public confidence, access to justice, and the quality of justice within Canada, solicitor-client privilege must be as close to absolute as possible: Blood Tribe Department of Health v. Canada (Privacy Commissioner), 2008 SCC 44 at U 9.

[23] Solicitor-client privilege is substantive law applicable to all interactions between client and lawyer when the lawyer is providing legal advice or acting as a lawyer. The privilege belongs to the client and not the lawyer and a court will not permit a solicitor to disclose a client’s confidence: Blood Tribe, atfl 9, Andrews v. Law Society (British Columbia), [1989] 1 SCR. 143 at p. 173.

[24] It follows that a solicitor is legally and ethically bound to protect the privileged information that belongs to his or her client, and it is improper for a lawyer not to claim it without showing that it has been properly waived: Bell v. Smith, [1968] S.C.R. 664, Lavalee v. Canada (Attorney General), 2002 SCC 61 at fl 24 and 35. A breach of confidentiality can give rise to liability for damages or an injunction: Ott v. Fleishman (1983) 46 B.C.L.R. 321. Ipso facto, a breach of solicitor-client privilege can give rise to the same liability.

[25] Solicitor-client privilege survives the death of the client and inures to the next of kin, heirs or successors in title: Geffen v. Goodman Estate (1991), 81 D.L.R. (4th) 211 at U 55-57. [26] Of course, in the instant case, the Plaintiffs say that solicitor-client privilege has been effectively waived by the Estate. They cite authorities such as Bank Leu AG v. Gaming Lottery Corp., [1999] O.J. No. 3949, affd [2000] O.J. No. 1137 (Div. Ct.) and Monco Holdings Ltd. v. B.A.T. Development Ltd. 2001 ABQB 133 for the proposition that where a client impugns the conduct of his solicitor as negligent there is an implied waiver of solicitor-client privilege. Thus, commencement of the action by the executor of the will against the testator’s solicitor is waiver of the privilege and should be sufficient for the solicitor to waive the privilege and does so.

Contingency Fee Agreement Not a Lottery

Contingency Fee Agreement Not a Lottery

Mide-Wilson v Hungerford Tomyn Lawrenson and Nichols 2013 BCSC 374 is a very interesting case relating to the intricacies of the “poor man’s key to the courtroom”, the contingency fee agreement is not a lottery for the lawyer.

This is where the lawyer and the client agree to enter into a fee arrangement based on a % of the recovered amount, to be the fee, rather than the traditional pay as you go hourly rate, that no one, client and lawyer alike, prefers anymore.

On December 8, 2008 the date the fee agreement was entered into::

a) Everyone believed they were in the Action for the long-haul;

b) Home had told Rennie on October 17 that he was not interested in paying

Ms. Mide-Wilson anything;

Ms. Mide-Wilson was not interested in a settlement wherein she was paid money by Home and Gibson; she wanted the company back;

A significant amount of legal work would be necessary on a go forward basis;
and

e) The value of the assets was somewhere in the $100 million range.

They settled on a %20 fee agreement, which resulted in the lawyers recovering a $17 million fee, which the client refused to pay on the basis that it was unreasonable.

The supreme court ultimately agreed and reduced the account to $5 million.

On a taxation of the account prior to the supreme court hearing,  the Registrar had  allowed $9 million, but on appeal, Justice Goeppel  of the Supreme Court stated :

“In the circumstances of this case, I find that $9 million is not a proper fee for the work actually done and does threaten the integrity of the profession. While the Solicitors took on a case in which there was great risk, the case and the risk ended within months of the commencement of the retainer.” and “In order to maintain the integrity of the legal profession, a legal account must have some relationship to the actual work carried out. To allow the fees awarded in this case given the work the Solicitors actually did would call into question the integrity of the profession.”

[180] A contingency fee agreement is not a lottery ticket. Success in the action does not guarantee a fee in the amount set out in the agreement. Even if the agreement was neither unfair nor unreasonable at the time it was entered into, the final account must be reasonable and proper given the services provided and the risk undertaken.

Having determined that the CFA was not unfair or unreasonable under the circumstances existing at the time it was entered into, the Solicitors’ account remains subject to review pursuant to the provisions of s. 70 of the LP A. A contract can itself be fair and reasonable and yet the fees purportedly charged pursuant to it may not be recoverable: Doig v. Davidson Muir, 106 B.C.A.C. 80,

48 B.C.L.R. (3rd) 53 at para. 19. As noted in Coad v. Rizk (1999), 68 B.C.L.R. (3d) 340 (S.C.), the provisions of s. 68 and 70 are not mutually exclusive, but work in concert to ensure that both the initial fee agreement and what is subsequently billed pursuant to that agreement are appropriate.

[154] In this case the registrar dismissed the application to cancel the CFA. I have upheld that decision. The matter now to be determined is the proper fee to which the Solicitors are entitled.

[155] In Commonwealth Investors Syndicate Ltd. v. Laxton (1994), 94 B.C.L.R. (2d) 177 (C.A.) [Commonwealth No. 2], the court had to wrestle with the reasonableness of the fee that a contingency contract had generated. McEachern C.J.B.C. said at para. 25:

I take the foregoing to mean that a contingency fee agreement under the old regime had to be reasonable in the result. This brought into play the well established principles which generally govern the fixing of a lawyer’s fee such as those stated in Yule v. Saskatoon (City) (1955), 1 D.L.R. (2d) 540, [17 W.WR. 296], (Sask. C.A.), and, of course, those further considerations that apply only to contingency fees. These include at least the risk of there being no recovery at all and the expectation of a larger fee based upon results than would be appropriate in non-contingency cases.

[183] While the terms of the contract set the maximum fee, the proper fee is ultimately determined by a consideration of the factors set out in s. 71(4) augmented as noted in Commonwealth No. 2 by those further considerations that apply only to contingency fees including the risk of no recovery and the expectation of a larger fee based upon results than would be appropriate in non-contingency cases. Regardless of the terms of a contingency fee agreement, those factors and considerations cap the amount that lawyers can charge. A lawyer is never entitled to more than a proper fee.

Consolidation For Trial of Separate Actions

consolidateOccasionally parties commence court actions relating to the same facts and issues, and the courts will under certain circumstances order that they be consolidated for trial and pre trial matters.

Situations arise on occasion in litigation where one court action is commenced that has some overlapping “interest” with another case, and one of the parties moves to have them joined together for one common trial rather than two separate ones.

As much as that simple proposition might make common sense, there are also situations where while there might be two court actions between the same or other parties, the case to one of the parties party may be appear to be more of a “square peg in a round hole”, and thus resist the application to join them together.

 

The leading cases on the issue in BC are Merritt v Imasco Enterprises Inc, (1992) BCJ 160 BCSC, and Peel Financial Holdings Ltd v western Delata Lands partnership 2003 BCSC 784:

The criteria are:

1. Do common claims, disputes and relationships exist between the parties;

2.Are the actions sought to be consolidated so interwoven as to make separate trials at different times before different judges undesirable and fraught with problems and economic expense;

a) Will the order sought create a savings in pre trial procedures;

b) will there be a reduction in the number of trial days taken up by the trials being heard at the same time;

c) What is the potential for a party to be seriously inconvenienced by being required to attend a trial in which that party may only a marginal interest

d) will there be any real savings in expert’s time and witness fees

e) Is one of the actions at a more advanced stage than another

f) Will the order result in a delay of the trial of one of the actions and if so, does any prejudice which a party may suffer as a result of that delay overweigh the potential benefits which a combined trial might otherwise have

g) IF the actions are not consolidated, will this lead to inconsistent results

 

In Peel Financial Holdings , the court said at para 27 that consolidation may be appropriate when parties are the same ad issues are in common so that the disposition of one action necessarily disposes of the other

Expert Opinions in Records are Generally Inadmissible Evidence

Expert Opinions in Records are Generally Inadmissible Evidence

Expert opinions contained in the hospital records are generally inadmissible Reid v Balcaen  2003 BCSC 1533, and Egli v Egli 2003 BCSC 1716.

This is because hearsay evidence is not admissible for the truth of the contents unless it can be admitted by applying the proper legal  principles.

In the Reid case,  the plaintiff has applied to introduce into evidence hospital records from a hospital.

These records have been certified by the appropriate records officers from the respective institutions.  The plaintiff relied on s. 51 of the Hospital Act, R.S.B.C. 1996, c. 200, which provides as follows:

51(1) A record regarding a patient that is prepared in a hospital by an employee or by a practitioner is the property of the hospital.

(2)   A copy of a hospital record certified to be true and correct by the administrator of the hospital or by another officer of it is admissible as evidence in a court without proof of the official position or signature of the administrator or officer.

[4]  Within the records of the hospital, there is a consultation report prepared by a doctor specialist.

The defendant objects to the introduction into evidence of that report on the basis that it is an expert opinion and the plaintiff has not complied with the requirements of Rule 40A of the Rules of Court.

[6]            Interpreting the section in the manner set out above is to interpret it in a manner that is consistent with the approach that has been taken by courts in this province to s. 42 of the Evidence Act, R.S.B.C. 1996, c. 124, which deals with the admissibility of business records and is often relied upon to ground the admissibility of clinical records, a close cousin of hospital records.  Although there are limitations or safeguards built into s. 42 of the Evidence Act that are not found in s. 51 of the Hospital Act (for example, the former section is limited to matters “in which direct oral evidence of a fact” would be admissible), there is no reason, particularly in light of the principled approach to hearsay evidence that has been endorsed by the Supreme Court of Canada, to approach these two sections differently.

[7]            In McTavishv.MacGillivray (18 July 1997), Vancouver Registry No. D944248 (B.C.S.C.), Burnyeat J. had occasion to consider s. 42 of the Evidence Act and its application to clinical records.  He reviewed the rationale underlying the common law exception to the hearsay rule as defined by Mr. Justice Hall in Ares v.Venner, [1970] S.C.R. 608.  In doing so, he noted that the foundation for that exception lay in the twin dictates of Wigmore that ground the principled approach to the hearsay rule that has been embraced by the Supreme Court of Canada.  Those twin dictates are a circumstantial guarantee of trustworthiness and necessity.  As to the relationship between the Rules and s. 42 of the Evidence Act, Burnyeat J. concluded at para. 11 that:

Section 42 should not be used to avoid the provisions of Rule 40A, especially where potential witnesses are otherwise available and the only “necessity” is that there has not been compliance with Rule 40A.

[8]            In my view, there is no reason to give s. 51 of the Hospital Act any different treatment than that accorded to s. 42 of the Evidence Act.  Indeed, there are compelling reasons for treating them similarly.

[9]            Returning to the facts of this matter, I find that the consultation report of Dr. Watson is admissible, provided it is stripped of those portions that are properly viewed as expert opinion or are otherwise inadmissible.

Judge Seeks To End Long Running Estate Trial of Thirty Court Actions

Long Running Estate Trial

In a case he called “Ontario’s long running estate trial legal drama,” a Superior Court judge has declared a plaintiff who launched dozens of lawsuits in an estate dispute a vexatious litigant.

The property at 140 Dunvegan Rd. in Toronto is at the heart of the long-running legal battle over the estate of Edward Assaf. Photo: Laura Pedersen

William Assaf has been fighting for a bigger share of his father’s estate since Edward Assaf died in 1971. According to a recent ruling, his battles were “motivated by a belief that a terrible injustice had been done by his father to his mother, who he felt had been abused in life and cruelly treated in the will.”

There have been more than 30 lawsuits and over 100 different court orders in the matter, according to the March 6 ruling by Justice Edward Morgan. Assaf has brought motions against the administrator of his father’s will, the current owners of the elder Assaf’s estate, and a lawyer involved in the case. Courts in several instances have ruled his motions were meritless.

In the absence of action to control future claims, Assaf “will remain a Pirandellian character in search of an author, re-enacting past struggles in a dramatic loop he cannot seem to escape,” wrote Morgan in Burton v. Assaf.

Judges who presided over previous motions in the same matter described the Assaf litigants using similar language. Former Superior Court justice David Cromarty said the litigants were “figures in a classical tragedy, bent upon destroying that which surrounds them, especially their monetary inheritance.” That was back in 1980 in Assaf v. Koury that dealt with an application by Vivian Assaf against her late husband’s estate.

Attempting to bring the legal saga to a close, Morgan said the court has to play the role of gatekeeper to protect the publicly funded justice system. “William Assaf has persistently attempted to re-litigate issues already determined by the court,” wrote Morgan. “He has brought claims and appeals that no reasonable person could expect to win. What’s more, he has initiated actions, motions, and appeals that contain no legally recognizable claim and that do little more than oppress and harass his opponents with repetitions of prior claims.”

The Assaf family’s litigation is “long and painful,” Morgan said, adding the matter is “so extensive that it would be counter-productive to attempt to trace it all.”

The case relates to the will Assaf’s father left upon his death that favoured his daughter, Barbara Laroq, while leaving only small annual payments to Assaf and his mother Vivian. Assaf produced a different will and “claimed to have found [it] among his father’s possessions,” wrote Morgan.

“The found will was held to be a forgery.”

Assaf was convicted of uttering a forgery and sentenced to four years in jail, a number later reduced to 2-1/2 years. The executor of his father’s estate, Robert Bosada, was also found to have forged a document at one point. The judge who presided over that case admonished Bosada but said his actions had no bearing on the ownership of the property.

“In any case, the continued litigation of issues respecting the property and the damages claims in the action would certainly amount to an abuse of process,” wrote Morgan, whose alphabetical list of the claims to the property extends to the letter Y.

Assaf “has attempted to appeal virtually every ruling, often simply for the sake of filing an appeal and then having it dismissed for failure to perfect,” wrote Morgan, adding Assaf has also consistently failed to pay costs awarded against him.

In addition to their own family members, Assaf and his mother brought claims against the purchasers of the property in question. The owners of the home in Toronto’s Forest Hill, Mary Matthews and James Archer-Shee, have, “doubtless to their lasting regret, stumbled into the Assaf family maelstrom,” wrote Morgan.

Although Matthews and Archer-Shee are the rightful owners of 140 Dunvegan Rd., Assaf and his mother have challenged their ownership since their 1998 purchase, Morgan added.

Assaf also sued Bernard Burton, the lawyer who once represented Bosada.

“In about 2003 or 2004, somewhere in that area, we had been in court about 135 times,” says Burton.

“Imagine this, including appeals to the Court of Appeal,” he adds.

While family law matters often lead to heated disputes, estates litigation “in some ways can be even worse,” says Toronto lawyer Garry Wise.

“Sibling rivalries go back to the beginning of time; they’re hugely entrenched,” he says.

“When parents make choices in the way they construct their wills and plan for their estates that leave one child or more than one child feeling out of the favoured circle, it’s just a prescription for this stuff to go on and on and on.”

There’s a cautionary tale for lawyers in cases like this one, says Wise. When they help clients draft a will, they should warn them about what could happen if they exclude someone or favour one child over others, he notes.

“The vast majority of their estate could get swallowed up by litigation if they don’t act in a way that is perceived as even-handed.”

There are no administrative controls in the justice system that stop persistent litigants from suing repeatedly, says litigation lawyer James Morton.

“In Ontario, pretty well anyone is allowed to sue anyone for anything. The controls on that are costs and in an extreme case an order, as in this decision, for declaring someone a vexatious litigant. There is nothing administrative to stop me from suing again and again and again for the same relief against the same people.”

Although courts have discretion to use the vexatious litigant label on their own accord, it’s unusual for them to make such an order unless there’s an application asking for it, says Morton.

“The court upon seeing an abusive process could make an order to ensure that things proceed in an orderly fashion without useless motions, but it would be very, very, very unusual for the court to take such a dramatic step without anyone asking,” he adds. “The role of a judge or judicial officer is not to litigate for people; it is to decide questions they’re asked.”

At a time when courts are seeing greater numbers of self-represented litigants, Wise says this case is a caricature of what he calls a broader problem of loose gatekeeping in Ontario’s courtrooms.

“I think there’s a question that’s bound to be asked sooner rather than later about our court system as a whole, which is: How much longer will our country be able to afford to maintain a robust court system to all to deal with what are essentially personal and private disputes?” he asks.

As a fundamental tenet of democracy, tinkering with the court system isn’t easy, says Wise. But “at a certain point, we are going to have to as a society draw lines,” he adds.

For his part, Morgan noted the vexatious litigant declaration “does not deprive a person of access to justice; rather, it provides extra scrutiny by the court, and impresses potential claims with a form of orderliness without prejudicing their merits.”

Still, Morton calls the vexatious litigant declaration an effective deterrent. “In my experience, when you have a vexatious litigant, it is extremely rare that they would bring an application or a claim that the judge will permit to go forward,” he says.

But Burton says an appeal of the recent decision wouldn’t come as a surprise.

“Judging by the past, of course he will appeal,” he says.

“However, this is the first step, I hope, on the way to some sort of finality.”

He adds: “We are prepared, when we get the order, to send a copy of it around to every court registrar in Ontario just to make sure he doesn’t walk in and, you know, not tell them and put something down.”

Assaf’s agent, Daniel Barna, says the pair disagree with the notion that Bosada’s forged documents didn’t have any bearing on the ownership of the property.

“What we were hoping Justice Morgan would do was recognize that the only way previous orders had been obtained was through lying to the courts,” he tells Law Times.

The true owner of the property, Barna maintains, is Savarin Ltd., a Bay Street nightclub once owned by Assaf’s father. Assaf is now the owner of the company.

“The judges have chosen to believe Bosada, found to be a forger and a perjurer,” he says. Assaf will appeal the vexatious litigant declaration, he adds.

Asked about the costs still unpaid by Assaf, Barna says: “Well, of course these guys have siphoned all the money out of the estate.”