Gifts In Contemplation of Marriage

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 abusive behaviour.

During the brief relationship, the plaintiff was a wealthy man and also paid down the defendant’s mortgage in the amount of $85,000 in November without any prompting by the defendant .

The plaintiff alleged that the gifts were conditional gifts, in contemplation of marriage and should be repaid. The defendant said the gifts were absolute and not conditional and that she is entitled to retain them. The ring was purchased on October 30,2013 and they became engaged on Christmas day that same year.

The defendant later returned the ring to the jewellery store and exchanged it for several pieces of jewellery.

The Court held that the gifts were absolute and that the defendant may keep them as there were several reasons why the plaintiff paid the debts and gave her the ring, and that marriage was probably the least important of the several reasons.

The court found they were not firmly committed to marriage when the debts were paid off , not did the purchase of the ring in October signify a firm commitment to marry.

The Engagement Ring

[69]          In British Columbia, the law relating to engagement rings is reasonably well-settled.

In Hitchcox v. Harper, [1996] B.C.J. No. 1861, the court pondered competing lines of authority, one which treated engagement rings as absolute gifts not returnable upon a termination of the engagement, and another which treated the gift of an engagement ring as being conditional on marriage and therefore returnable upon the failure of the condition. The court followed the latter line of authority.

[70]          Hitchcox was followed in Sperling v. Grouwstra, 2004 BCSC 330 [Sperling] and Zimmerman v. Lazare, 2007 BCSC 626 [Zimmerman]. For this reason I consider the law on this point to be settled in this jurisdiction.

[71 ] Fault for the termination of the engagement does not enter into the analysis: Sperling, at para. 24, and Zimmerman, at para. 9. Parenthetically, I note that in other jurisdictions the issue has been dealt with by way of legislation, such that fault for a termination of an engagement is not relevant there either: Manitoba – Equality of Status Act, C.C.S.M., c. E130, s. 5; Ontario – Marriage Act, R.S.O. 1990, c. M.3, s. 33; and Alberta – Family Law Act, S.A. 2003, c. F-4.5, s. 102.

[72]          The general approach in British Columbia to the question of the return of engagement rings, which I have described above, is still subject to evidence of a contrary intention on the part of the donor. This is the real issue here because Ms. R. maintains that Mr. S. gave her the engagement ring as an absolute gift at their final meeting.

[73]          For his part, Mr. S. emphasizes that the onus is on the recipient to prove the transferor intended the transfer to be a gift and that the evidence of gift must be very clear, citing Bath v. Bath, 2002 NLCA 21 [Bath] and Veitch v. Rankin, [1997] O.J. No. 4642 (Ont. C.J.) [Veitch].

Gifts in Contemplations of Marriage

[87]        In Fediuk v. Gluck (1990), 26 R.F.L.(3d) 454 (Man. Q.B.), aff’d [1991] M.J. No. 354 [Fediuk], the court suggested that a transfer of property cannot be considered to have been made in contemplation of marriage unless the parties “have agreed on, or committed themselves to, marriage and where the transfer or gift can be said to have been made in that context”: Fediuk, at para. 19. However, I consider it unwise to rely on that fact alone and instead find it preferable to consider the degree to which the parties had committed to marry as being part of the context from which the donor’s intent may be ascertained or inferred.

[96]          Although Robinson v. Cumming has been cited in modern cases and in at least one modern textbook (J. Crossley Vaines, Personal Property, 4th ed. (London: Butterworths, 1967), which itself is cited in Lummer v. Frohlich, 2007 ABQB 295), I prefer to analyse the issue using more contemporary sources. Courting behaviour and relationships between men and women are vastly different today than in the days of Mrs. Robinson and Mr. Cumming, whose case came to court nearly 70 years prior to the publication of Jane Austen’s first novel, itself a study in quaint (and outdated) manners and customs.

[97]          One of those contemporary sources is Voglerv. Matzick (1988), 33 B.C.L.R. (2d) 82 (C.A.) at 84-85, where the court said:

I add this comment about gifts made “in contemplation of marriage”. Any gift may be made conditional, or subject to revocation. A term to that effect may be expressed or it may be implied. If it is implied, the factual matrix that gives rise to the implication must make the implication obvious, in accordance with the requirements of the officious bystander test. Where a household item is given by one prospective marriage partner to another, at a time when they are engaged but not sharing a household, the implication of a term that the gift was intended to be revocable if the marriage did not take place and the household never came into being, without any change of heart on the part of the donor, would be straightforward. As a form of shorthand, such a gift could be said to be “in contemplation of marriage”. But if the household is already in being, and if, as in this case, the donor may have had some motive for making the gift other than, or as well as, a prospective marriage, then the implication of a term that the gift is intended to be revocable if the marriage does not take place becomes much more problematical. A gift made “in contemplation of marriage” is not merely a gift between an engaged couple, with a marriage clearly in the offing. Nor is it a gift for use by both parties in a joint household. At the very least it requires that the gift would not have been made but for the impending marriage itself.

[Emphasis added.]

[98]          Although the passage just quoted is obiter dicta (because the case turned on relief granted by the trial judge that had not been claimed in the pleadings), the discussion of the law relating to gifts in contemplation of marriage is instructive and carries weight.

Importantly, the Court of Appeal noted that a motive or motives for making a gift other than, or as well as, a prospective marriage would make an implied term of revocability “problematical”. Indeed, that is the very situation presented in this case.

Laches

Laches

Laches was discussed and rejected by the court in Grewal v Khakh 2016 BCSC 2055, where the court quoted the Supreme Court of Canada:

52           In  M. (K.) v. M. (H.), , [1992] 3 S.C.R. 6, [1992] S.C.J. No. 85 (S.C.C.) at para. 98, where the court said:

A good discussion of the rule and of laches in general is found in Meagher, Gummow and Lehane, supra, at pp. 755-765, where the authors distill the doctrine in this manner, at p. 755:

It is a defence which requires that a defendant can successfully resist an equitable (although not a legal) claim made against him if he can demonstrate that the plaintiff, by delaying the institution or prosecution of his case, has either

(a) acquiesced in the defendant’s conduct or

(b) caused the defendant to alter his position in reasonable reliance on the plaintiff’s acceptance of the status quo, or otherwise permitted a situation to arise which it would be unjust to disturb.

Thus there are two distinct branches to the laches doctrine, and either will suffice as a defence to a claim in equity. What is immediately obvious from all of the authorities is that mere delay is insufficient to trigger laches under either of its two branches. Rather, the doctrine considers whether the delay of the plaintiff constitutes acquiescence or results in circumstances that make the prosecution of the action unreasonable. Ultimately, laches must be resolved as a matter of justice as between the parties, as is the case with any equitable doctrine.

Wills Variation-Assets Passing Outside of the Estate

Assets Passing Outside of the Estate

generally speaking, claimants do not have a claim against assets that pass “outside” of the estate in wills variation claims. The exceptions are if the transfer is tainted and legal remedies such  as resulting trust, undue influence and lack of mental capacity are available.

 

Assets Passing – Probably most people in North America die holding assets that pass from their name to others or their estate that pass both ” inside” and “outside” of the estate.

A deceased’s will only distributes assets that were personally owned by the deceased at the time of his or her death, and these assets are said to pass through, under  or “inside” of the deceased’s estate.

Many other assets owned by the deceased may pass “outside” of the deceased’s estate by mechanisms independent of the will.

In a wills variation action brought under section 60 WESA, a claim is limited to assets in British Columbia that pass “inside of the estate” pursuant to the will of the deceased.

If the deceased is not have a will, then there cannot be a wills variation claim and the assets will pass as an intestacy.

Similarly, there is no wills variation claim in the following assets owned by a deceased:

1.       Property owned as a joint tenant with a right of survivorship with someone else;

2.       named beneficiaries under an insurance policy;

3.       proceeds from pension plans with named beneficiaries;

4.       trusts;

5.       gifts made during the lifetime of the deceased; 

The list may not be exhaustive but it includes probably a majority of assets owned by the majority of Americans and Canadians that pass upon a death.

For example, most spousal couples likely own their property in joint tenancy with a right of survivorship, so that upon the first of the owners to pass, the property automatically goes to the survivor and does not form part of the assets that pass under the will.

As previously mentioned, it is not possible to bring a wills variation claim against a proper joint tenancy.

Measuring Tort Damages

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 . An order was made giving the the COurt held that maternal grandmother and her husband sole custody of plaintiff, and they adopted him.

The parties elected to proceed by special case to determine effect of plaintiff’s adoption on claim for damages resulting from death of biological parents.

The obligations of adoptive parents were gratuitous, in spite of legal obligation imposed on them, and ought not to reduce damages plaintiff would otherwise be entitled to.

The court held that None of infant plaintiff’s claims were extinguished upon his adoption  as the act of adopting the plaintiff did not reduce damages for loss of his biological parents.

Chief Justice McLachlin, on behalf of the Court, discussed the obligation of a parent to a child in Krangle (Guardian ad litem of) v. Brisco 2002 SCC 9 (S.C.C.). In that case, a child was born with Down syndrome and his parents sued his mother’s physician for failing to advise her of the availability of testing which would have revealed the Down syndrome. Had the testing been available to her, it was found that she would have had an abortion. The Chief Justice commented that:

22 . . . Jane Stapleton, “The Normal Expectancies Measure in Tort Damages ” (1997), 113 L.Q.R. 257, thus suggests, at pp. 257-58, that the tort measure of compensatory damages may be described as the “‘normal expectancies’ measure”, a term which “more clearly describes the aim of awards of compensatory damages in tort: namely, to re-position the plaintiff to the destination he would normally have reached … had it not been for the tort”. The measure is objective, based on the evidence. This method produces a result fair to both the claimant and the defendant. The claimant receives damages for future losses, as best they can be ascertained. The defendant is required to compensate for those losses. To award less than what may reasonably be expected to be required is to give the plaintiff too little and unfairly advantage the defendant. To award more is to give the plaintiff a windfall and require the defendant to pay more than is fair.

Interim Distribution Ordered

Interim Distribution Ordered

An interim distribution of $250,000  of his maximum estate entitlement of $460,000 was ordered to a 76 year old former spouse of the deceased who needed funds in Davis v Burns Estate 2016 BCSC 1982.

The application was made  under section 155 of the Wills, Estates Succession Act, S.B.C. 2009, c.13, (the “Act“) and Rules 8 — 1, 14 — 1, and 22-1 of the Supreme Court Civil Rules for the payment of an interim distribution.

The remaining litigants were refused the same advance primarily as they had not applied and were left to continue their litigation over the remaining $2,250,000. in the estate. They had opposed the interim advance unless the court awarded them the same but the court stated since they had not applied, the court could not review their application in light of the required law as set out in the Hecht case below.

Discussion of the Legal Principle to be Applied

31      In Hecht v. Hecht Estate (1991), 62 B.C.L.R. (2d) 145 (C.A.) at paras. 42- 46 the Court of Appeal set out a number of the factors the court was to consider when deciding whether to exercise its discretion to grant leave to the executors to make an interim distribution when Wills Variation Act proceedings have been commenced. The Wills Variation Act, R.S.B.C. 1996, c. 490, was repealed and replaced by the Act under which proceedings have been commenced by Leslie. Those factors included:
a. the amount of the benefits sought to be distributed as compared to the value of the estate;
b. the claim of the beneficiaries on the testator;
c. the need of beneficiaries for money; and
d. the consent of the residuary beneficiary to the proposed transfer.
See also Henney v. Sander, 2014 BCSC 889 at para. 38.

Fraudulent Misrepresentation

Fraudulent Misrepresentation

Jasmur Holdings Ltd v Taynton Developments Inc. 2016 BCSC 1902 reviewed inter alia the tort of fraudulent misrepresentation.

116.       The tort of fraudulent misrepresentation has four elements. They were recently summarized by the Supreme Court of Canada in Combined Air Mechanical Services Inc. v. Flesch 2014 SCC 8 (S.C.C.), at paragraph 21:

[21] From this jurisprudential history, I summarize the following four elements of the tort of civil fraud:

(1) a false representation made by the defendant;

(2) some level of knowledge of the falsehood of the representation on the part of the defendant (whether through knowledge or recklessness);

(3) the false representation caused the plaintiff to act;

and (4) the plaintiff’s actions resulted in a loss.

117      With respect to negligent misrepresentation, the elements were described in Queen v. Cognos Inc. [1993] 1 S.C.R. 87 (S.C.C.) at 110:

. . . (1) there must be a duty of care based on a “special relationship” between the representor and the representee; (2) the representation in question must be untrue, inaccurate, or misleading; (3) the representor must have acted negligently in making said misrepresentation; (4) the representee must have relied, in a reasonable manner, on said negligent misrepresentation; and (5) the reliance must have been detrimental to the representee in the sense that damages resulted. . . .

118      As Kirkpatrick J. said in PD Management Ltd. v. Chemposite Inc. 2006 BCCA 489 (B.C. C.A.), at paragraph 14:

[14] It is settled law that an alleged misrepresentation must pertain to a matter of fact. In MacMillan v. Kaiser Equipment Ltd., 2003 BCSC 672, aff’d 2004 BCCA 470, this Court dismissed the claims for damages for misrepresentation because “it is clear that each of the alleged representations relate to a future occurrence, and not to an existing state of events. A future offer . . . is not an actionable representation” (para. 85). 

137      The plaintiffs rely on D. Debenham, The Law of Fraud and the Forensic Investigator, 3rd ed. (Toronto: Carswell, 2012) at page 14 with respect to their claim of constructive fraud:

Constructive fraud does not require a proof of design to mislead or deceive another, but of some failure to perform an obligation in good faith, or in accordance with the intention of the parties, often out of self-interest. It is not simply bad judgment or negligence, but it is more – a failure to properly respect the rights of one who is vulnerable to the power of another. That vulnerability may be as a result of a preceding contractual obligation which has left one person at the mercy of another, or it may be as a result of the facts and circumstances of the particular case. Constructive fraud does not imply fault, in the sense of intentional misconduct, like actual fraud does. The standard for constructive fraud is objective, while actual fraud (also known as “fraud at law”) requires a subjective dishonest intention. Thus, in cases like Boardman v. Fhips and Regal (Hastings) Ltd. v. Gulliver, the courts have found constructive fraud where the defendants thought they were acting entirely properly, because the court found that their conduct did not comport the legal standard required of someone who had power over the affairs of another.

Removed Executor Gets No Fees

Removed Executor Gets No fees

Watson v Strong 2016 BCSC 1897 dealt with a passing of accounts claim for executor’s fees by a removed executor  that was rejected by the court. The court instead awarded %4.5 fees on an interim basis to the executor who replaced the removed executor, with a further .5% fees when the estate is finalized.

The court outlined the criteria for determining executor’s remuneration and then listed all the reasons why the removed executor was not entitled to any fees.

45      Executor’s remuneration is contemplated by the will and by s. 88 of the Trustee Act, R.S.B.C. 1996, c. 464. The executor is entitled to a fair and reasonable allowance of a maximum of 5% of the gross aggregate value of all the assets of the estate for his or her care, pains and trouble and his or her time spent on the executorship.

46      The criteria to be considered in determining the executor’s remuneration are as follows:

a) the magnitude of the trust (or estate);

b) the care and responsibility involved;

c) the time occupied in the administration of the estate;

d) the skill and ability demonstrated;

e) the success achieved in the final result (McColl, Re (1967), 65 W.W.R. 110 (B.C. S.C. [In Chambers])).

1. Marian’s claim to Executor’s Remuneration

47      Applying the criteria as required, I have determined that Marian has not applied any skill or ability in her role as executor to justify any executor’s remuneration. She is a major cause of the excessive delay in getting Elwell Street sold, and of the associated legal expenses. I would be illogical to award a fee in light of the unnecessary delay and expense that Marian has caused. Marian says she spent 262 hours taking junk to the dump, arranging for curbside pick-up of junk by the City of Burnaby, and attending the property when the City of Burnaby bylaw inspector attended. The attendance of the bylaw inspector was due to debris on the property. The letter from the City dated September 13, 2013 to Marian and Rick refers to twelve previous Licence Office letters regarding a complaint about a sawmill business being operated on the property. The sawmill business was Gordon’s. The letter goes on to say:

A site inspection conducted on 2013 September 10 revealed: a dismantled portable saw, an accumulation of rough cut lumber, lumber, used building materials, construction debris, pieces of metal, sign, fridge drawer, sink, hand truck, rowing machine, seat from a [sic] automobile, wooden boxes, several pieces of outdoor furniture and various forms of debris stored on the property.

48      The letter states the City requires removal of all of the items listed and the lumber to be neatly stacked.

49      Finally, the City issued a ticket on August 22, 2014 based on the unsightly property. Rick appealed the ticket, but lost. The adjudicator noted that the City worked with the owner’s representative for three years to clean up the property and allowed debris to remain until the property was vacated on May 26, 2014. A second ticket was issued September 26, 2014 for unsightly property. In my view, it was inevitable that the City would take action regardless of Marian having attended the bylaw inspections. The bylaw inspector’s supervisor wanted him to close the file. It was inevitable that the patience of the City would eventually run out and a ticket would be issued. In any event, if Marian had not obstructed the timely sale of the property, the unsightliness issue would not have lingered as long as it did.

50      Marian says she preserved the property and because of her refusal to agree to an earlier sale of the property, the property increased in value and therefore, she should receive a care and management fee. Before being removed as executor, Marian resisted Rick’s attempts to sell Elwell Street. She wanted to buy the property herself, but had no realistic way of doing so.

51      The other beneficiaries wanted the property sold. If the property had been sold earlier, each beneficiary would have received his or her share to invest as he or she wished. Marian’s self-interest conflicted with her duties as executor to act for the benefit of all beneficiaries. I do not consider Marian’s hindering of the sale of the property a point in her favour in her claim for an executor’s fee.

52      Marian’s conduct as executor has resulted in her being removed by court order. That order was based on Marian obstructing the proper administration of the estate. She is responsible for the estate having to spend money on legal fees that would otherwise go to the beneficiaries.

53      Further, she has refused to claim the principal residence exemption (“PRE”) which would save the estate $60,000, $15,000 of which would go into her own pocket. She was only willing to claim the PRE if she were paid $30,000 for executor’s fees and that the estate dropped its claim for special costs. Needless to say, the offer was rejected. Even if I were to award Marian executor’s remuneration for junk clearing and attending at the property during the bylaw inspections, the amount of that fee would be very modest and eclipsed by the $60,000 she is costing the estate by refusing to claim the PRE. Marian’s own legal counsel advised her to claim the PRE and to leave her claim for executor’s remuneration to be determined by the court. Her refusal to claim the PRE is unreasonable. Marian still has the opportunity to act reasonably and claim the PRE because she is within the time limit for re-filing. She testified that “it’s still on the table”, which I take to mean that she may decide to claim the PRE. It is in her own interests to claim the PRE, even if she is not motivated by the interests of the other beneficiaries. If she requires some professional accounting assistance to re-file, Rick, as executor, might consider covering her reasonable accounting fees for this purpose. Such fees would be a reasonable estate expense.

Re-Opening a Case For New Evidence

Re-Opening 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 so.

The Court reviewed the law relating to the discretion of the court   and declined to re- open the case to allow new evidence.

Reopening Proceedings and New Evidence

11      Counsel should proceed as quickly as is reasonably possible to have the decisions of the trial judge reduced to the form of an order and to have the order approved or settled and entered; see Re Janke (1977), 2 B.C.L.R. 378 (S.C.).
12      However, a trial judge retains discretion to re-open an issue before formal judgment has been entered. This discretion is unfettered but is to be used sparingly; see Cheema v. Cheema, 2001 BCSC 298at para. 4; Sykes v. Sykes (1995), 6 B.C.L.R. (3d) 296 (C.A.) at para. 9; and Clayton v. British American Securities Ltd. (1934), 49 B.C.L.R. 28 at 66-67 (C.A.).
13      In Lemare Lake Logging Ltd. v. British Columbia (Minister of Forests & Range), 2009 BCSC 902, Grauer J. reviewed the case law relevant to the discretion to re-open, and at para. 7, said:
  1. This discretion should be exercised sparingly and with the greatest care to avoid unwarranted attempts to disturb the basis for judgment, or to permit a litigant to re-establish a broken down case.
  2. The onus is on the applicant to establish that a miscarriage of justice would probably occur if the matter is not reopened.
  3. New evidence is a usual, but not an essential, prerequisite; where it is offered, the onus is on the applicant to establish that it would probably change the result of the proceeding.
  4. The credibility and weight of the proposed fresh evidence is a relevant consideration in deciding whether its admission would probably change the result.
  5. Although the question of whether the evidence supporting the application could have been presented at trial by the exercise of due diligence is not necessarily determinative, it may be an important consideration in deciding whether a miscarriage of justice would likely occur if the hearing is not reopened.
  6. In general, reconsideration of an issue is not an alternative to an appeal.
14      In Bronson v. Hewitt, 2010 BCSC 871, Goepel J., as he then was, concluded:
[33] From my review of the authorities I take the law to be that new evidence will only be admissible on a reconsideration application if it would likely change the result and, except in exceptional circumstances, the evidence could not have been obtained by reasonable diligence before the trial. In exceptional circumstances, in order to prevent a miscarriage of justice, fairness may dictate that new evidence will be admissible even though the evidence may have been discoverable prior to trial. New evidence will generally not be admissible in situations where the evidence was not called at trial because of tactical considerations.
15      Apart from new evidence, a judge may also properly re-open if satisfied, either because of the argument of one of the parties, or on the basis of his or her own reconsideration of the record, that the original judgment was in error because it overlooked or misconstrued material evidence or misapplied the law; Sykes at para. 10.
16      The Court of Appeal recently considered the principles applicable to a reconsideration application in Moradkhan v. Mofidi, 2013 BCCA 132. The Court reviewed the law at paras. 28-32, relying heavily on the summary of MacKenzie J., as she then was, in Mohajeriko v. Gandomi, 2010 BCSC 60 at paras. 20-27, 31-32. Justice Garson said:
[31] I agree with, and adopt the comments of MacKenzie J. I would summarize the main principles applicable to such an application in the following way:
  • it is generally speaking in the interests of justice to consider that a trial is complete when each side has closed their case and the judge has delivered his or her judgment;
  • a judge’s unfettered discretion to reopen a trial should be exercised with restraint;
  • a party may not use the rule to re-argue, re-cast, or re-state his or her case, rather the rule is available to remedy what might otherwise be a substantial injustice;
  • it is not intended that a party should be able to lead substantial new evidence, nor does the rule generally permit the leading of new expert evidence;
  • the reasons that the evidence was not led or submissions not made in the first place may be relevant to the exercise of the judge’s discretion, particularly where the failure to do so in the first place was a considered or pragmatic decision; and
  • the discretion should only be exercised if the reception of the new evidence would probably change the result of the trial.
I would add to this list that a judge may reasonably exercise such discretion where a relatively discreet error in math or some mechanical consideration of the evidence is clearly in error. Finally, the overarching consideration is whether it is in the interests of justice that the court reopen the case. (See also Brown v. Douglas, 2011 BCCA 521, 314 B.C.A.C. 143.)
[32] From a procedural point of view it seems to me that fairness would dictate that an application must be made to the judge on notice to the other party with an outline of the evidence to be tendered. The judge will then decide to reopen or not, and may direct a further hearing, or if appropriate, decide the question concurrently with the application to reopen. Such an application must be governed by the Supreme Court Civil Rules, B.C. Reg. 168/2009, relating to interlocutory procedures and the conduct of trials. …

Examinations for Discovery Ordered

Examinations for Discovery Ordered

Estate of Patricia Connor deceased, 2016 BCSC 1934 dealt with the court ordering examinations for discovery and production of various documents in an action between half siblings of the deceased and a purported spouse of the deceased as inter alia the parties knew little to nothing about the other .

20      Rule 25-14(8) of the Supreme Court Civil Rules provides the Court with discretion to direct examination for discovery or provision of documents in those matters of administration of estates. Accordingly, I direct that Mr. Chambers attend an examination for discovery for this purpose. With respect to the examination for discovery, counsel for Mr. Chambers will be able to object to questions that are too far-reaching as per the normal course.

21      I also order the production of the following documents as requested:

a) Tax returns for both Ms. Connor and Mr. Chambers for the past five years;

b) Separation Agreement in Mr. Chambers’ family law proceedings;

c) Ms. Connor’s medical records from 2000 to the date of her death;

d) Production of documentation dealing with Ms. Connor’s Registered Retirement Savings Plan;

e) Any documentation dealing with Mr. Chambers’ Registered Retirement Savings Plan, pension, and life insurance; and

f) Any documentation dealing with Ms. Connor’s funeral arrangements.

Legal Fees Agreements

Legal Fees Agreements

The test as to whether a legal fees agreement was “fair and reasonable” was recently reviewed in Hammerberg Lawyers LLP v Ikeda 2016 BCSC 621.

The agreement in question was a contingency fee agreement. The lawyers worked on a difficult case for a long time but found that the client would not co operate and eventually obtained an order removing the firm as the lawyers for the -plaintiff. The plaintiff then settled her case directly with the insurance company and the lawyers sued the plaintiff for their fees and won.

The court found that it was a difficult case, the client could not have afforded to prosecute it without a contingency fee and that the settlement was a result of the work performed by the law firm.

In reviewing the law on fee agreements the court stated :

[86]         Registrar Nielsen has summarized the framework for this type of analysis in Spraggs & Company v. Carnaby, 2015 BCSC 1504:

[25]      Section 65 of the Legal Profession Act allows a lawyer or a law firm to enter into an agreement with any other person, requiring the payment for services provided or to be provided.

[26]      Section 68 of the Legal Profession Act allows a person who has entered into an agreement with a lawyer to have the agreement examined and cancelled if the agreement was unfair or unreasonable at the time it was entered into. However, section 68(3) of the Legal Profession Act provides a strict limitation period for such a review which has not been met in this case. The client’s failure to properly challenge the agreement within the time provided by the Legal Profession Act is sufficient to dispose of this issue.

…

[28]      The test for determining whether an agreement is fair and reasonable was established in Commonwealth Investors Syndicate Ltd. v. Laxton, 50 BCLR (2d) 186 (BCCA), leave to appeal refused [1990] S.C.C.A. No. 479 QL. The Court stated at pages 198 and 199:

In our opinion s. 99 contemplates a two-step enquiry.

The first step investigates the mode of obtaining the contract and whether the client understood and appreciated its contents. The enquiry would include whether, at the time the contract was entered into, there was any lack of capacity on the part of the client, whether there was any undue influence exercised or unfair advantage taken by the solicitor, whether any mistake was made, or whether any other flaw arose in the formation of the contract which would indicate that the client did not understand and appreciate its content. The onus would be upon the solicitor to satisfy the foregoing requirements of the enquiry. Should any of those be found, the contract would not be “fair” in the sense of the statute and Re Stuart. The court would declare the contract cancelled, or would modify it, or the bill could be remitted for taxation.

The second enquiry, assuming the contract is found to be fair” involves an investigation of the “reasonableness” of the contract. On this investigation, extending from the time of the making of the contract until its termination or its completion, all of the ordinary factors which are involved in the determination of the amount a lawyer may charge a client are to be considered, and each factor may be the subject of professional evidence to assist the judge in determining the reasonableness of the fee in the particular circumstances.

[29]      This approach continues to be endorsed by the court. See Mide-Wilson v. Hungerford Tomyn Lawrenson & Nichols, 2013 BCCA 559, at paragraphs 22 and 23.

…

[35]      Having found the agreement to be fair and reasonable is not the end of the matter. It remains to be determined whether the agreement results in a “fair fee” (see Mide-Wilson, supra, at paragraphs 69 to 73, 76 to 77, and 100.

[36]      Section 71(5) of the Legal Profession Act provides that the discretion of the Registrar is not limited to the terms of an agreement between the lawyer and the client. Therefore, the bill is to be reviewed keeping in mind the principles of review which are summarized in s. 71 of the Legal Profession Act which provides:

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.