Amending Court Pleadings

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 to have fair notice of the case against them to be met.

29      The applicants referred to the decision of British Columbia (Director of Civil Forfeiture) v. Violette, 2015 BCSC 1372in support of the application. In that case, the court considered the principles to be considered on an application to amend pleadings and noted:

[39] In Mayer v. Mayer, 2012 BCCA 77 at para. 215, the Court of Appeal affirmed that the fundamental purpose of pleadings is to define the issues to be tried with clarity and precision, to give the opposing parties fair notice of the case to be met, and to enable all parties to take effective steps for pre-trial preparation.

[40] Applications for leave to amend pleadings are considered on the same basis as applications to strike pleadings with the question being whether it is plain and obvious that the proposed amendments are bound to fail. In assessing that question, it is not determinative that the law has not yet recognized a particular claim. In its analysis, the court must be generous and err on the side of permitting an arguable claim to proceed to trial. See: McMillan v. McMillan, 2014 BCSC 546 at paras. 13-14, and cases cited therein.

[41] In Peterson v. 446690 B.C. Ltd., 2014 BCSC 1531 at para.37, this Court summarized the general principles arising on an application to amend pleadings as follows:

[37] Finally, the general principles arising on an application to amend pleading can be summarized as follows:

(a) Amendment to pleadings ought to be allowed unless pleadings fail to disclose a cause of action or defence: McNaughton v. Baker, [1988] 24 B.C.L.R. (2nd) 17 [(C.A.)].

(b) Amendments are usually permitted to determine the issues between the parties and ought to be allowed unless it would cause prejudice to party’s ability to defend an action: Levi v. Petaquilla Minerals Ltd., 2012 BCSC 776).

(c) The party resisting an amendment must prove prejudice to preclude an amendment, and mere, potential prejudice is insufficient to preclude an amendment: Jones v. Lululemon Athletica Inc., 2008 BCSC 719.

(d) Costs are the general means of protecting against prejudice unless it would be a wholly inadequate remedy.

(e) Courts should only disallow an amendment as a last resort: Jones, McNaughton, Innoventure S& K Holdings Ltd. et al. v. Innoventure (Tri-Cities) Holdings Ltd. et al., 2006 BCSC 1567.

30      Here, in my view, the question turns on prejudice. The position of the plaintiff that the new pleadings will raise matters going back 30 years raises no new prejudice. The entire action stems from matters going back 30 years.

31      The other prejudice argued is the potential expiry of the limitation period, the proximity of the trial date and the potential that the trial date will be lost and the fact that document discovery and examinations for discovery have been conducted on the basis of the amended counterclaim.

BC Wills Variation: Executor Added After Expiration of Limitation Date

Executor Added After Expiration of 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) 114, the plaintiff commenced an action (by an endorsed writ that existed then but no longer exists), under what was then known as the Wills Variation act, naming the defendant as a beneficiary but failing to name the executor as required by the rules of court.
The court ordered that the executor may be named as a party, despite the fact that the expiration of the limitation period under the wills variation act had expired, holding that the defect amounted only to an irregularity and not a nullity.
The court added the executor as a proper party to the action pursuant to what was then Rule 15(5) (A) (11) and section 4( (1) (A) of the Limitation act, which required that the new party be connected with the subject matter of the original action.
The court found that there was no prejudice to the executor, since he had in fact been served with the cause of action in his capacity as a beneficiary within the 180 day limitation, and the plaintiff had attempted to add the executor as a party in a timely fashion.
The court held that rule 8 (14) meant that all beneficiaries as well as the executor must be named as parties to the proceeding, and where such an individual as an executor is a party to an action in a representative capacity, that capacity should appear in the style of cause. If it is not, then the writ is a regular Raj Kour v Chan (1958) 27 WWR 191 AT 192.

The plaintiff must show that:

1) the person ought to of the named as a party, or b) the parties participation in the proceeding is necessary to ensure that all matters in the proceeding may be effectually adjudicated upon (Ent.. Realty v  Barnes Lake Cattle  Co. (1979) 13 BCLR 293 ( CA).
The court provided the following reasons for concluding that in these particular circumstances that the executor could be added as a party, despite the fact the   180 day limitation period ( then 6 months)  had expired:

20 (a) by R. 8(14) he must be a party;

21 (b) the Wills Variation Act claim was begun within the six-month period;

22 (c) the executor, while not named, was in fact served with the writ;

23 (d) it is clear from the endorsement that the claim is under the Wills Variation Act — not a personal claim against Mr. Cowan;

24 (e) there can be no prejudice to the defendant/beneficiary or executor in this case. There can be no more difficulty with old witnesses and poor memories than if the executor were named in the original writ;

25 (f) the purpose of limitation period under the Wills Variation Act is to enable the executor to distribute funds without fear of a claim being advanced after six months. In this case the beneficiary/executor was served with the writ within six months and there has been no prejudice in that regard;

26 (g) the position of executor, in a Wills Variation Act claim, is one of neutrality. He is to assist the court: Re McCarthy, [1919] N.Z.L.R. 807 (S.C.); Cookv. Webb, [1918] N.Z.L.R. 664. Thus his addition is not prejudicial;

27 (h) refusing to add the executor would not be in accordance with R. 2(1), which states that failure to comply with the rules (R. 8(14)) should be treated as an irregularity not a nullity.

Damage Assessments on Appeal

Damage Assessments on Appeal

“An appellate court will not interfere with a trial judge’s assessment of damages unless he or she erred in principle of law, misapprehended the evidence, failed to consider relevant factors or considered irrelevant factors, or there was no evidence on which the judge could have reached his or her conclusion: Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58 at para. 80.  

An award is inordinately low if it falls substantially below the range for damage awards in the same class of case, such that it demonstrates palpable and overriding error: Cory v. Marsh (1993), 77 B.C.L.R. (2d) 248 (C.A.); Le v. Luz, 2003 BCCA 640.”

As stated by the Supreme Court of Canada in the Naylor Group v Ellis-Don case stated:

It is common ground that the Court of Appeal was not entitled to substitute its own view of a proper award unless it could be shown that the trial judge had made an error of principle of law, or misapprehended the evidence (Lang v. Pollard, [1957] S.C.R. 858, at p. 862), or it could be shown there was no evidence on which the trial judge could have reached his or her conclusion (Woelk v. Halvorson, [1980] 2 S.C.R. 430, at p. 435), or the trial judge failed to consider relevant factors in the assessment of damages, or considered irrelevant factors, or otherwise, in the result, made “a palpably incorrect” or “wholly erroneous” assessment of the damages (Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, at p. 235; Laurentide Motels Ltd. v. Beauport (City), [1989] 1 S.C.R. 705, at p. 810; Widrig v. Strazer, [1964] S.C.R. 376, at pp. 388-89; Woelk, supra, at pp. 435-37; Waddams, supra, at para. 13.420; and H. D. Pitch and R. M. Snyder, Damages for Breach of Contract (2nd ed. 1989) 15§5).  Where one or more of these conditions are met, however, the appellate court is obliged to interfere. 

Funeral Service

Funeral Service

It is surprisingly common for loved ones of a deceased person to argue or even litigate over the funeral service and disposition of the remains of a deceased person.

One of the leading cases in BC is Kartsonas v Kartsonas Estate 2010 BCCA 336 where the children of the deceased and a niece had joint custody of the deceased’s funeral.

The children wanted a religious service and the niece disagreed arguing the deceased was an atheist at the time of his death.

The children succeeded at both the Supreme Court and the Curt of Appeal whom ordered that the children have responsibility for the funeral and disposition of his remains. 

Section 5(1) of the Cremation, Interment and Funeral Services Act, S.B.C. 2004, c. 35, sets out the order of priority of persons to control the disposition of the remains of a deceased person.

The first priority is given to the personal representative named in the will of the deceased.

The next following priorities are given to the spouse of the deceased and the adult children of the deceased.

Section 5(4) of the Act authorizes an application to be made by a person claiming that he or she should be given the sole right to control the disposition of the remains of a deceased person, a s. 5(6) provides that if such an applicant is successful, he or she is deemed to be at the top of the order of priority

Section 5(5) of the Act provides direction to the court in hearing an application under s 5(4). It reads as follows:

(5) When hearing an application under subsection (4), the Supreme Court must have regard to the rights of all persons having an interest and, without limitation, give consideration to

(a) the feelings of those related to, or associated with, the deceased, giving particular regard to the spouse of the deceased,

(b) the rules, practice and beliefs respecting disposition of human remains and cremated remains followed or held by people of the religious faith of the deceased,

(c) any reasonable directions given by the deceased respecting the disposition of his or her human remains or cremated remains, and

(d) whether the dispute that is the subject of the application involves family hostility or a capricious change of mind respecting the disposition of the human remains or cremated remains.

11      Clause (c) of s. 5(5) provides that reasonable directions given by the deceased person are to be taken into account on an application under s. 5(4). However, I note that the deceased’s wishes are not determinative and are only one factor to be taken into account by the court.

The wishes of a deceased person as to the nature of his or her burial can be made binding on the person with conduct of the disposition of the deceased’s remains if they are expressed in his or her will or other document that complies with the requirements of s. 6 of the Act. In the present case, Mr. Kartsonas expressed a preference in his will and his representation agreement as to who should have conduct of the disposition of his remains but his preference for a non-religious funeral was not contained in a document complying with s. 6.

The Law of Mistake

The Defence of 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 of another. This will result in a mistake and when that occurs, one of the parties may  attempt to vitiate the contract.

I have seen this occur when negotiating a settlement at a mediation- the parties were mistaken as to the terms of what was intended to be contained in the settlement, and one party sued to vitiate the settlement. There are three types of mistake in law, common, mutual and unilateral

THE  LAW  OF MISTAKE

As to the distinction between the types of mistake giving rise to vitiation of the underlying contract, in whole or in part, Prowse, J.A. adopted the following summary from Ron Ghitter Property Consultants Ltd. v. Beaver Lumber Co. (2003), 17 Alta. L.R. (4th) 243 (C.A.) at paras. 12 — 13:

12. There are three types of mistake: common, mutual and unilateral: see Cheshire, Fifoot & Furmston, Law of Contract, [14th ed. (London: Butterworths, 2001)], supra, at 252-53 for a summary of each.

Common mistake occurs when the parties make the same mistake. For example, one party contracts to sell a vase to another when unbeknown to both, the vase was destroyed and no longer exists. 

Mutual mistake occurs when both parties are mistaken, but their mistakes are different. In this event, the parties misunderstand each other and are, to use the vernacular, “not on the same page”.  

Unilateral mistake involves only one of the parties operating under a mistake. If the other party is not aware of the one party’s erroneous belief, then the case is one of mutual mistake but if the other party knows of it, of unilateral mistake. What adds to the confusion is that the distinction between mutual and common mistake is sometimes blurred when courts use the two terms interchangeably. 

13. The presence or absence of an agreement is one of the foundational differences amongst the three types of mistake. With common mistake, the agreement is acknowledged. What remains to be determined is whether the mistake was so fundamental as to render the agreement void or unenforceable on some basis.

But in the case of a mutual or unilateral mistake, the existence of an agreement is rejected. As explained in Cheshire, Fifoot & Furmston, supra at 253: 

Where common mistake is pleaded, the presence of agreement is admitted. The rules of offer and acceptance are satisfied and the parties are of one mind. What is urged is that, owing to a common error as to some fundamental fact, the agreement is robbed of all efficacy. Where either mutual or unilateral mistake is pleaded, the very existence of the agreement is denied. The argument is that, despite appearances, there is no real correspondence of offer and acceptance and that therefore the transaction must necessarily be void.

“Survive By Five Days”

"Survive By Five Days"

S  10 of WESA provides for when a person does not survive a deceased person by five (5) days or longer when provided for in an instrument(  ie a will) is conclusively deemed to have died before the deceased persona for all purposes and thus will not inherit.

Todoruk v BC Land Title and Survey Authority 2016 BCSC 2241 when a married couple of 67 years died when one died on January 12 and the other died on January 17.

The issue before the court was the interpretation of the words ” survive by five days.”

[2]          The calculation of time is addressed in the Interpretation Act, R.S.B.C. 1996 c. 238 [Acf. Sections 25(1), (4) and (5) say as follows:

(1) This section applies to an enactment and to a deed, conveyance or other legal instrument unless specifically provided otherwise in the deed,  conveyance or other legal instrument.

(4)           In the calculation of time expressed as clear days, weeks, months or years, or as “at least” or “not less than” a number of days, weeks, months or years, the first and last days must be excluded.

(5)           In the calculation of time not referred to in subsection (4), the first day must be excluded and the last day included.

IF the court found that the second spouse survived the first spouse to die then her share passed to the husband. If it was found that she did not survive the husband by five days then her estate would be considered as tenants in common with his estate.

The court held that the second to die did in fact survive the first to die by five days, and that s 10 WESA  does not state clear days

Therefor the first and last days are included and amount to five days.

The reasoning followed a previous case interpreting survive by thirty days Re Day Estate 1982 BCJ 1288 which also said that part days are not to be counted.

Chain of Executorship When Executor Dies

Chain of Executorship When Executor Dies

The chain of executorship when the executor dies before finishing his or her  duties  refers to where probate has been taken by an executor who survives the original testator, the right of such executor to a grant of probate does not cease and the representation to and the administration of the testator’s estate devolves to his executor. Re Aikins Estate (1963) 41 W.W.R. 226, at 227

4      Re Aikins Estate (1963) 41 W.W.R. 226, a decision of Friesen, Surr. Ct. J., where that learned judge gave a careful decision in a similar matter and refused the order. In his reasons, Friesen, Surr. Ct. J., at p. 227, quoted from Macdonell & Sheard’s Probate Practice at p. 113 as follows:

‘… if a sole executor, or the survivor of several executors, having proved the will, dies without having completed the administration of the estate, his executor when he proves the will becomes the executor of the original testator. It is only an executor who has proved the will who can transmit the executorship, and, therefore, if the executor named predeceases the testator or dies without having taken probate there must be an administration.’

One of the leading cases on the topic in British Columbia is O’Gorman Estates (1965)  51 WWR 762

Taxation of a Lawyers Account

Taxation of a Lawyers Account

Lawyer client relationships sometimes go off the rails and a dispute may arise about an unpaid account. The remedy is taxation of the account before a registrar of the Supreme  Court and both the client and the lawyer have the right to have the matter determined  in that manner pursuant to the Legal Professions act.

Master Taylor sitting as a registrar allowed an unpaid family lawyer’s account in full for $25,356 after reciting many pages of letters between the lawyer and the client that clearly demonstrated a severely strained relationship, and a client who would not follow advice.

The lawyer had the client sign a retainer agreement that provided for such possible  lawyer client problems and the procedure for resolving them which the court found useful in determining the proper account for services rendered under  the circumstances.

I recommend reading Lindsay Kenney LLP v Yehia 2016 BCSC 2121 for an inside look into how lawyers on occasion have to deal with clients who the court found to be ” one of the most difficult clients a lawyer could possibly have.”

That case was a heated matrimonial proceeding but estate litigation files certainly have the tendency to also become extremely emotional to the expense of common sense and reason.

Lawyers invariably give good advice to their clients and when the clients fail to follow the advice, it usually costs the client dearly as it did with Mr. Yehia.

The court set out the Provisions of S 71 Legal Professions Act governing the taxation of lawyers accounts:

Matters to be considered by the registrar on a review

71 (1) This section applies to a review or examination under section 68 (7), 70,77 (3),

78 (2) or 79 (3).

(2)           Subject to subsections (4) and (5), the registrar must allow fees, charges and disbursements for the following services:

(a)  those reasonably necessary and proper to conduct the proceeding or business to which they relate;

(b)  those authorized by the client or subsequently approved by the client, whether or not the services were reasonably necessary and proper to conduct the proceeding or business to which they relate.

(3)           Subject to subsections (4) and (5), the registrar may allow fees, charges and disbursements for the following services, even if unnecessary for the proper conduct of the proceeding or business to which they relate:

(a)  those reasonably intended by the lawyer to advance the interests of the client at the time the services were provided;

(b)  those requested by the client after being informed by the lawyer that they were unnecessary and not likely to advance the interests of the client.

(4)           At a review of a lawyer’s bill, the registrar must consider all of the circumstances, including

(a)  the complexity, difficulty or novelty of the issues involved,

(b)  the skill, specialized knowledge and responsibility required of the lawyer,

(c)  the lawyer’s character and standing in the profession,

(d)  the amount involved,

(e)   the time reasonably spent,

(f)    if there has been an agreement that sets a fee rate that is based on an amount per unit of time spent by the lawyer, whether the rate was reasonable,

(g)   the importance of the matter to the client whose bill is being reviewed, and

(h)   the result obtained.

(5)   The discretion of the registrar under subsection (4) is not limited by the terms of an agreement between the lawyer and the lawyer’s client.

Who Can Be an Expert Witness?

Who Can Be an Expert Witness?

The complexity  litigation issues  has increased the need and use of expert witnesses, and just who can be one is sometime an issue in itself.

Some of the experts that I have  utilized over years of estate litigation are geriatric psychiatrists, accountants and forensic auditors, and on occasion hand writing experts.

Very often the parties present evidence by the expert that they wish to call as to qualifications and experience testifying as an expert and then the cross examination, before the court rules on whether the evidence will be accepted as expert opinion.

Grewal v Khakh 2016 BCSC 2055 recently adopted the long established rule as first set out in Regina v Bunnis ( 1964) 44 C.R. 262 and adopted by the BCCA in Regain v Kinnie  1989 CarswellBC 205 at paragraph 12:

.. The test to be applied by the judge was, if I may say with respect, correctly stated by Tyrwhitt-Drake C.C.J. in Regina v. Bunniss (1964), 44 C.R. 262 at 264. The judge was stating the effect of the definition of an expert witness given by Lord Russell of Killowen C.J. in The Queen v. Silverlock, [1894] 2 Q.B. 766. Tyrwhitt-Drake C.C.J. said this:

From this it is clear that so long as a witness satisfies the Court that he is skilled, the way in which he acquired his skill is immaterial. The test of expertness, so far as the law of evidence is concerned, is skill, and skill alone, in the field in which it is sought to have the witness’s opinion. If the Court is satisfied that the witness is sufficiently skilled in this respect for his opinion to be received, then his opinion is admissible.

Copy of Will Probated

Copy of Will Probated

Under certain circumstances a copy of a will rather than the original, may be admitted to probate as the last valid will of the deceased.

The competing claimants will typically  argue that there is a presumption of revocation when the original will cannot be produced.

There is more information on this topic under my  blog heading of lost wills.

In short reasons for judgement, Canada Trust v MacMillan 2016 BCSC 1909 sets out a situation where the court was satisfied by evidence that the will maker executed a last will that had become lost due to changes in the law firms that held the will. Evidence was also led that she was mentally capable  at the time the will was signed, as it was argues she had suffered from mental illness for much of her life.

Canada Trust v MacMillan 2016 BCSC 1909

APPLICATION by bank for pronouncement of force and validity of last will of deceased in solemn form.

Gray J., In Chambers:

1      I am prepared to make the order requested. I will just give some very brief reasons for judgment.
2      Canada Trust is seeking a series of orders. The most important is a pronouncement for the force and validity of the last will of Joan Margaret MacMillan (“Ms. MacMillan”) dated November 5, 2002, in solemn form.
3      Ms. MacMillan passed away in March 2014 at the age of about 81 years. She had an estate which is presently worth a little bit more than two million dollars.
4      There were really three areas of concern that were addressed. The first is that the original signed will is not available. However, there is evidence that Mr. Argue was the lawyer who prepared the will. He was a lawyer with the law firm Owen Bird at the time he did the initial work on the will, and a few days later he started working at the law firm Campney & Murphy, and he was a lawyer with that firm when the will was executed.
5      A wills notice was filed saying that the will was kept at the law firm Campney & Murphy, but that law firm ceased operations, and the will was not found in the vault.
6      Two copies of the will were found, one in the deceased’s personal documents, and the other with Canada Trust, which was involved in referring Ms. MacMillan to Mr. Argue for preparation of the will. There was also an email from Mr. Argue to the Canada Trust officer who had been involved, saying that the will had been executed.
7      On the basis of all this, I am satisfied that the will was executed in compliance with the Wills Act formalities, even though we do not have the original will itself. We have the copy. It is appropriate with the correction in the name of the cousin, to Dorothy C. Anderson (“Ms. Anderson”). The name originally provided was Dorothy T. Anderson, but that name was incorrect.
8      The will itself provided that the residue would be distributed equally between Ms. Anderson and James V. Bennett, or to the survivor. In fact, Ms. Anderson predeceased the will maker. So pursuant to the will, it would be Mr. Bennett who would receive the entire residue of the estate.
9      Mr. Bennett was not a relative of the will maker. He met her in connection with doing some private investigation work for her. After that, he spent some time assisting her with chores, assisting her around the home, and having some social interaction with her such as lunches and teas and so on.
10      There was a concern about the will maker’s capacity to make the will. Ms. MacMillan had a history of mental illness. She suffered bipolar disorder, with episodes of depression and episodes of manic behaviour. She had some hospitalizations over the course of her lifetime. However, at the time of giving instructions and the execution of the will, she satisfied Ms. Taylor of Canada Trust and the lawyer, Mr. Argue, that she had testamentary capacity. She knew the extent of her estate. She knew that she had no living parents or siblings or children.
11      There is also the evidence of Dr. Sloan, a geriatric physician, and Dr. Hurwitz, a neurologist and psychiatrist, based on their review of medical records, all suggesting that the will maker had testamentary capacity. I am satisfied that Ms. MacMillan had the necessary capacity to execute the will at the time she did so.
12      A concern was also raised about undue influence. I have read Mr. Bennett’s affidavit, and I have not seen any evidence that suggests that there was undue influence.
13      Having considered all these things, I will make the orders sought and I am happy to initial the approved form of order.