Adding Defendants

Adding Defendants

Stewart v. Stewart  2016 BCSC 1576 was a contested application for adding defendants to a court action commenced by one of four children to wind up a trust.

The application to add the remaining three children as defendants was opposed on the basis that the trustee could and would represent the interests of the other three children.

The court allowed the three defendants to be added as parties as there was a different legal position being put forward between the -plaintiff as a beneficiary and the applicants to be added as defendants as beneficiaries.

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

[34]         This subrule provides two alternate tests:

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

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

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

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

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

[38]         Their arguments include:

  • as in Kitimat, the relief sought by the plaintiff in these proceedings will affect the Applicants’ rights and interests under the Trusts. If the plaintiff is successful, there will be a direct financial impact on the Applicants in that among other relief, the plaintiff seeks orders that QPPC and its subsidiaries, ABC and its subsidiaries, the Stewart Trust, and the Martin Trusts be liquidated, dissolved or wound up and the Trustees of the Stewart Trust and Martin Trusts distribute one-quarter of the assets held by the Trusts to each of the plaintiff, and the Applicants, adjusted for any unequal distributions;
  • accordingly, if the plaintiff’s claims were successful, the operations of QPPC, ABC, and their subsidiaries would be terminated prematurely. The Stewart Trust and the Martin Trusts would also be terminated, the Trust assets distributed, and the Applicants’ rights and interests as beneficiaries under those Trusts would be eliminated;
  • the Stewart Trust and the Martin Trusts are a major source of income for the Applicants. The plaintiff has stated that the Applicants and the plaintiff have received over $34 million in equal shares from the Stewart Trust alone since its settlement. The relief sought by the plaintiff in these proceedings would terminate this ongoing income source;
  • it is no answer for the plaintiff  to say that the interests of the Applicants are not directly affected because they would be entitled to a distribution of an approximately equal share of the trust property should the relief be granted. The plaintiff has pled that the purpose of the Trusts was to allow the Deceased’s assets to grow in a consolidated and diversified manner for the benefit of the Deceased’s children and their issue.
  • this is not one of those situations where the beneficiaries’ input is necessary or helpful;
  • to the extent that any of the interests of the beneficiaries of the family trusts are affected by the claims brought in the within proceeding, their interests ought to and can be protected by the defendant trustees of the family trusts. The Applicants have not asserted any argument or defence that would be available to them as trust beneficiaries that is not available to be advanced, or has not been advanced, by the defendant Trustees of the family trusts.

[41]         I have concluded that the application should be granted. While I accept that the Applicants do not currently have a position adverse in interest to the trustees, that is not, in my view, the proper test to be applied.

Leave to Appeal

Leave to Appeal

The legal test for leave to appeal was restated in Ho Estate v. Ho 2016 BCCA 253 , upheld at 2016 BCCA 378, where the decision of one appeal judge was upheld by a panel when he refused leave to appeal on the basis that there was no reasonable chance of success.

16      Orders of a judge of the Supreme Court may be appealed as of right unless they qualify as limited appeal orders. The definition of a limited appeal order is set out in R. 2.1 of the Court of Appeal Rules. This definition includes “an order granting or refusing relief for which provision is made under … Part 7” of the SCCR, other than R. 7-7(6). Maisonville J.’s order is clearly an order made under Part 7 of the SCCR and qualifies as a limited appeal order; therefore, leave to appeal is required.

17      The test for leave to appeal was set out by Madam Justice Saunders in Goldman, Sachs & Co. v. Sessions, 2000 BCCA 326 (B.C. C.A. [In Chambers]) at para. 10:

[10] The criteria for leave to appeal are well known. As stated in Power Consolidated (China) Pulp Inc. v. B.C. Resources Investment Corp. (1988), 19 C.P.C. (3d) 396 (C.A.) they include:

(1) whether the point on appeal is of significance to the practice;

(2) whether the point raised is of significance to the action itself;

(3) whether the appeal is prima facie meritorious or, on the other hand, whether it is frivolous; and

(4) whether the appeal will unduly hinder the progress of the action.

18      The party who is seeking leave to appeal bears the onus of establishing that these four conditions have been met: B.C.T.F. v. British Columbia (Attorney General), (1986), 4 B.C.L.R. (2d) 8 (B.C. C.A. [In Chambers]) at 11.

19      The merits threshold on an application for leave to appeal is relatively low: Bartram (Guardian ad litem of) v. Glaxosmithkline Inc., 2011 BCCA 539 (B.C. C.A. [In Chambers]) at para. 16 (Prowse J.A. in Chambers). However, an appeal that is vexatious, frivolous, or has no reasonable chance of success will not meet this threshold: Gichuru v. Law Society (British Columbia), 2012 BCCA 159 (B.C. C.A. [In Chambers]) at para. 22 (Bennett J.A. in Chambers), aff’d 2012 BCCA 171 (B.C. C.A.).

20      The overarching concern on an application for leave is the interests of justice: Hanlon v. Nanaimo (Regional District), 2007 BCCA 538 (B.C. C.A. [In Chambers]) at para. 2 (Saunders J.A. in Chambers). Even if the applicant has satisfied the four conditions from Power Consolidated (China) Pulp Inc. v. British Columbia Resources Investment Corp. [1988 CarswellBC 615 (B.C. C.A.)], leave may be denied if granting leave is not in the interests of justice: Movassaghi v. Aghtai, 2010 BCCA 175 (B.C. C.A. [In Chambers]) at para. 27 (D. Smith J.A. in Chambers).

 

Entered Court Orders

Entered Court Orders

The Court does not have jurisdiction  to re open entered court orders but may vary the order where has been a change of circumstance.

The court refused to re open or vary an entered court order in Sugrim v Sugrim 2016 BCSC 1644 when after entering a desk order under the Family Relations act under S 57,  (which has the effect of crystalizing matrimonial assets and severing jointly owned titles), the husband became incapacitated and was awarded $1.8 million in damages for the injury.

With the consent of the committee adult child of the patient, the wife’s application to set aside the entered court order was dismissed on the basis that inter alia there was a risk that the wife and her children were acting out of self interest and not in the best interest of the patient.

The Sugren case stated:

 [22]         The PGTBC submits and I agree that the court does not have jurisdiction to reopen and set aside an entered order. The court may, however, entertain a variation of an order on the basis of a change of circumstance.

[23]         I raised a question as to the validity of a consent to a s. 57 declaration. However, having reviewed the circumstances of this case and the authorities, I conclude that the declaration was valid.

[24]         This was not a situation where one party at a judicial case conference requested a s. 57 declaration and the other party opposed it, as was the case in Harrison v. Harrison, 2007 BCCA 120. InHarrison, Finch C.J. found the death of Mr. Harrison was a material new circumstance giving rise to a reconsideration of the previous order to avoid a miscarriage of justice. In that case, the order was not entered, so the court was not functus officio and there was evidence of a possible miscarriage of justice which does not exist in the present case.

[25]         The only issue before me is whether or not a committee has the authority to consent to an application to set aside the s. 57 declaration based on a material change in circumstance.

[26]         The claimant submits that s. 15 of the PPA provides that a committee of the patient has all the rights, privileges and powers with regard to the estate of the patient as the patient would have if of age of majority and of sound and disposing mind. Those rights include the ability to commence defend or otherwise conduct legal proceedings.

[27]         The PGTBC submits that the committee’s power is qualified in that she may only act in the best interests of the respondent.

[28]         In Beadle v. Beadle, 1984 CanLII 806 (BC CA), the PGTBC continued divorce proceedings and set an application for an undefended divorce down for hearing on behalf of an incapacitated claimant, citing Re Swartz, [1947] 2 W.W.R. 979 at 980 (B.C.C.A.) where the court agreed that a committee has the power to bring a divorce action on behalf of the patient and there was nothing in the PPA which limited that power. In Beadle, at para. 8, MacFarlane J.A. held that:

… [the] appointment [of a committee] contemplates … the full management of the affairs of the patient who is incapable of doing so herself. That includes, in my opinion, the management or conduct of any litigation which the patient has undertaken, or which might need to be undertaken in the best interests of the patient. To hold otherwise would put a severe limitation upon the proper management of a patient’s affairs while she is incompetent.

[29]         In Beadle, the court made a distinction between dealing with property matters and dealing with questions of status. In response to this concern, the court said that there are controls in place to ensure that a committee exercises caution in bringing proceedings which involve the status of the patient. Those controls lie in the discretion of the PGTBC under the PPA and under the Supreme Court Civil Rules where the court has the discretion to deny an appointment of a committee as the guardian ad litem of the patient in a proceeding.

[30]         A litigation guardian must declare that he or she does not have any interest in the proceeding that is adverse in interest to the patient (Rule 20-2 of the Supreme Court Civil Rules).

[31]         Protection of the interests of the incompetent party is the primary consideration of the court.

[32]         In a concurring judgment, Lambert J.A. added (at para. 26):

… that where any proceedings are instituted by a committee in which matters of status and morals are involved, there is an obligation on the committee to bring before the court evidence that will satisfy the court that the proceedings are in the best interests of the person who is being represented by the committee.

[33]         In this case, the claimant says there has been a material change in circumstance which should give rise to a variation of the s. 57 declaration because the claimant asserts there is no longer a marital rift that will lead to a final divorce order.

[34]         The claimant asserts that there is a reasonable prospect of reconciliation as one party wishes to reconcile and the other party consents by way of his committee. This submission focuses on the status of the parties and not on what is in the patient’s best interests.  The respondent’s wish prior to his incapacity was to separate from the claimant.  It is unclear to me how the committee could come to the conclusion that he would now want to reconcile. It is open to the committee to satisfy the court that this change in status would be in the respondent’s best interests even though he cannot consent.

[35]         In Anderson v. Anderson Estates, [1990] O.J. No. 1123 (H. Ct. J.), the court considered whether an attorney appointed by power of attorney had the authority to exercise the patient’s right to elect or consent to receive an equalization payment in lieu of entitlement under the deceased spouse’s will. The court concluded that the fact the patient was incapacitated from personally making the election should not diminish her right. The Powers of Attorney Act, R.S.O. 1980, c. 386, s. 5 contemplated an attorney continuing to manage the affairs of the donor after the donor was deemed incompetent.

[36]         In Anderson, at para. 13, the court said:

… the right to elect is a very personal decision that should only be exercised by the surviving spouse and not left to a stranger to the marriage, lest the stranger interfere with the testator’s intentions without knowing whether or not the surviving spouse has made the choice to disregard his or her spouse’s last wishes. …, this concern can somewhat be alleviated by the fact that an attorney under power of attorney will always have a fiduciary duty to act in the best interest of the donor. It may also be possible for the donor to set out in the power of attorney his or her wishes with respect to such an election.

[37]         In the case before me, the claimant also asserts that it is in the respondent’s best interests to “have a home to return to should he ever be able to leave the care of the facility in which he currently resides.”

[38]         This assertion begs the question of whether the respondent is welcome in the home if the claimant is not successful with this application.

DECISION

[39]         The respondent’s incapacity is a material change in circumstance which may give rise to grounds to vary the declaration.

[40]         I agree with the PGTBC’s submission that the entered order cannot be reopened or re-heard and the only way a court can reconsider the order is on a variation application.

[41]         A variation application brought by the committee of the respondent will only be successful if the committee can satisfy the court that it is in the patient’s best interests to vary the order.

[42]         Having considered the reasons for the application, I conclude that while a variation of the s. 57 declaration may well be in the best interests of the claimant and her children, there is no evidence that satisfies me that a variation of the s. 57 declaration is in the best interests of the respondent. There is a risk that the claimant and her children are acting out of self-interest. We will never know what the respondent would want at this time, and his interests must be protected.

[43]         As far as I know, the respondent is being well cared for in a long-term care facility receiving 24-hour a day nursing care. His family visit him on a regular basis, and ensure that the care is adequate. He has sufficient funds in trust to finance his care. The PGTBC monitors the spending of those funds to make sure they are used in only his best interests and not in the interest of anyone else. Upon his death, those funds will be left to the beneficiaries of his estate. There is nothing in the material that leads me to believe the current situation is not in the best interests of the respondent. Accordingly, I dismiss the application.

 

Civil Conspiracy

Civil Conspiracy

Klaus v. Hamilton, 2015 BCSC 2386 involved a claimant who sued alleging he was a spouse of the deceased, for a variance of her will and for damages for civil conspiracy for alleging he was not a spouse.

The tort of civil conspiracy has two branches (Cement LaFarge v, B.C. Lightweight Aggregate, [1983] 1 S.C.R. 452] at 471-472):

  1. whether the means used by the defendants are lawful or unlawful, the predominant purpose of the defendants’ conduct is to cause injury to the plaintiff; or
  2. where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstances that injury to the plaintiff is likely to and does result[.]

[31]         Mr. Klaus asserts that the defendants conspired to harm him personally, emotionally and financially.

[32]         There is limited evidence to support a claim of conspiracy. At most, there is some evidence that Ms. Hamilton prepared the notices ending tenancy and requests that Mr. Klaus leave the New Westminster apartment by March 31, 2009. There is also some evidence that Ms. Hamilton asked the staff of the Fleetwood Manor to prevent Mr. Klaus from seeing Ethel Colley. The three defendants attended at the apartment building to provide the notices to Mr. Klaus.

[33]         I cannot conclude that any of these constitutes a conspiracy as that is contemplated by the law.

Mandatory Injunctions: Harm Must Probably Occur

Mandatory Injunctions: Harm Must Probably Occur

McLean v. Law Society of British Columbia 2016 BCCA 368 reviewed the law on injunctions and held that the court should only grant a mandatory injunctions when the harm complained of would probably occur.

 
[17]        Both declarations and injunctions, speaking as they do to actions in the always unknowable future, are uncommon relief. The principles in equity are clear that a permanent injunction will not be ordered in the absence of a determination that the enjoined conduct is likely to occur. In Aquila Networks Canada (B.C.) Ltd. v. Borgnetta, 2004 BCCA 188 (CanLII) at para. 13, this court said:

In order to obtain an injunction Aquila must establish the likelihood that the apprehended behaviour will occur: Operation Dismantle Inc. v. Canada, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441 at 458. …

[18]        This same approach applies in respect to declarations concerning future conduct. In Operation Dismantle Inc. v. Canada, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441 at 457-458 Justice Dickson, for the majority, discussed the sparing approach that courts must take on applications for prospective declaratory and injunctive relief:

… the preventative function of the declaratory judgment must be based on more than mere hypothetical consequences; there must be a cognizable threat to a legal interest before the courts will entertain the use of its process as a preventive measure. As this Court stated in Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821, a declaration could issue to affect future rights, but not where the dispute in issue was merely speculative. In Solosky, supra, one of the questions was whether an order by a director of a prison to censor correspondence between the appellant inmate and his solicitor could be declared unlawful. The dispute had already arisen as a result of the existence of the censorship order and the declaration sought was a direct and present challenge to this order. This Court found that the fact that the relief sought would relate to letters not yet written, and thereby affect future rights, was not in itself a bar to the granting of a declaration. The Court made it clear, however, at p. 832:

… that a declaration will not normally be granted when the dispute is over and has become academic, or where the dispute has yet to arise and may not arise. [Emphasis added by Dickson J.]
A similar concern with the problems inherent in basing relief on the prediction of future events is found in the principles relating to injunctive relief. Professor Sharpe, Injunctions and Specific Performance (1983), clearly articulates the difficulties in issuing an injunction where the alleged harm is prospective, at pp. 30-31:

All injunctions are future looking in the sense that they are intended to prevent or avoid harm rather than compensate for an injury already suffered. …

Where the harm to the plaintiff has yet to occur the problems of prediction are encountered. Here, the plaintiff sues quia timet – because he fears – and the judgment as to the propriety of injunctive relief must be made without the advantage of actual evidence as to the nature of harm inflicted on the plaintiff. The court is asked to predict that harm will occur in the future and that the harm is of a type that ought to be prevented by injunction.

The general principle with respect to such injunctions appears to be that “there must be a high degree of probability that the harm will in fact occur”: (Sharpe, supra, at p. 31). In Redland Bricks Ltd. v. Morris, [1970] A.C. 652, at p. 665, per Lord Upjohn, the House of Lords laid down four general propositions concerning the circumstances in which mandatory injunctive relief could be granted on the basis of prospective harm. The first of these stated [at p. 665]:

1. A mandatory injunction can only be granted where the plaintiff shows a very strong probability upon the facts that grave damage will accrue to him in the future…. It is a jurisdiction to be exercised sparingly and with caution but in the proper case unhesitatingly.

It is clearly illustrated by the rules governing declaratory and injunctive relief that the courts will not take remedial action where the occurrence of future harm is not probable. This unwillingness to act in the absence of probably future harm demonstrates the courts’ reluctance to grant relief where it cannot be shown that the impugned action will cause a violation of rights.

Gift or Loan?

Gift or Loan?

It is often difficult for the court to determine if advancements of funds from one party to another done orally and without witnesses is a gift or loan.

Rosas v. Toca 2016 BCSC 1754 dealt with such a situation. The plaintiff won over $4 million in a lottery and advanced over $600,000 to the defendant to buy a house.

The plaintiff demanded repayment and the defendant asserted the funds were a gift. Alternatively the defendant asserted the claim was statute barred as out of time and succeeded on this point.

The court did however find that the funds were intended as a gift and not a loan largely relying on the corroboration of the bank manager who handled the bank draft.

It was not necessary to resort to the law of resulting trusts as the court determined that the intention of the plaintiff was to make a loan and not a gift.

The Court stated:

As set out in the case of Clifford v. Flores 2004 BCSC 358, the Court must decide whose version of events is most reliable in order to decide the issues.  Mr. Justice Cohen noted at paragraph 39 in that case:
[39]      The credibility of the witnesses must be tested against those facts that are not seriously in dispute, and the preponderance of the evidence and the probabilities surrounding the events.

[40]      Although this task is primarily one of fact finding, some legal principles submitted by defence counsel are of assistance:

a)         First, the plaintiff carries both the legal and evidentiary burden of proving on a balance of probabilities, that the alleged oral contract was made.
b)         Second, the basic contractual principles of offer and acceptance, and certainty of terms are applicable.  These principles are summarized in Friedman, The Law of Contract in Canada (4th ed.). at pp. 16-17, and 20, as follows:
Constantly reiterated in the judgments is the idea that the test of agreement for legal purposes is whether parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract. The law is concerned not with the party’s intentions but with their manifested intentions. It is not what an individual party believed or understood was the meaning of what the other parties said or did that is the criterion of agreement; it is whether a reasonable man in the situation of that party would have believed and understood that the other party was consenting to the identical terms.
…
Sometimes it is a simple matter to decide what the parties have manifested to each other, and consequently, whether they have agreed, and if so, upon what. This is especially true where a document containing their agreement has been prepared and signed by the parties. If the plain wording of the document reveals a clear and unambiguous intent, it is not necessary to go further.
…
It is different, however, where the language is not unambiguous but vague and uncertain. In the absence of the requisite certainty and clarity the courts will not declare that a contract exists.

Judgement Does Not Sever Joint Tenancy

Judgement Does Not Sever Joint Tenancy

The registration of a judgement against one owner of a jointly owned property does not sever joint tenancy.

If the only asset owned by the judgement debtor is the joint tenancy property, then registration of the judgment against the interest of the debtor will not sever the joint tenancy under the execution proceedings.

Canadian Imperial Bank of Commerce v. Muntain [1985] B.C. J. No. 3075  followed  Re Young [1968] B.C.J. No. 209, 70 D.L.R. (2d) 594 (BCCA) which stated:

28 In my view the registration of a judgment under s. 35 of our Execution Act does not sever a joint tenancy and I revert to the words of the trial Judge in the Power v. Grace case (approved by the Court of Appeal) [[1932] 1 D.L.R. at p. 892]:

The trend of the authorities is that a mere lien or charge on the land, either by a co-tenant or by operation of law, is not sufficient to sever the joint tenancy; there must be something that amounts to an alienation of title.
…

34 Immediately following the death of the debtor it seems to be beyond question that his interest in the joint tenancy existing prior to his death was extinguished. There still remained entered in the register of judgments an entry made under s. 35 of the Execution Act indicating the indebtedness of the deceased debtor. As at that moment the legal representative of the judgment debtor had no interest in the lands in question because of the operation of the jus accrescendi. The question then is whether the registration of the judgment, a first step in an uncompleted execution, constituted an encroachment upon the surviving joint tenant’s rights acquired under the jus accrescendi.

35 Appellant admits that if the execution procedure under ss. 33 to 59 of the Execution Act had been carried to a point where an order for sale was made, the jus accrescendi would have been extinguished. It is not necessary to make a finding on this point here.

36 It is my view that following the death of the debtor-joint tenant, the judgment creditor had no more than a “charge” or “encumbrance” against an interest which no longer existed.

Deceased Assets Vest In Executor

Deceased Assets Vest In Executor

A deceased person’s assets vest in his or her executor or administrator after death.

If an executor is removed or renounces the new executor/trustee then holds the assets in trust as they now vest with the new executor/trustee.

Browne v Browne Estate 2015 BCSC 28, the court  removed an executor and stated:

[22]         At common law the executor derives title from the will: Sustrik Estate v. Floyd, 2005 ABQB 880.

Section 102 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 provides:

(2)        The estate of a deceased person vests in the person’s personal representative when the personal representative assumes or is appointed to that office.

Pleadings

Pleadings

The Public Guardian and Tristee for BC v Johnston 2016 BCSC 1388 discusses the requirements of proper pleadings and when the Court may intervene to strike out, stay the proceedings, or amend the pleadings of a party.

An application was brought under Rule 9-5 (1) to strike portions of a rambling 32 page response.

The Court stated the following about the requirements of proper court pleadings:

[39] The applicants rely on Rule 9–5(1) of the SCCR. It provides that, at any stage of the proceeding, the Court may order that the whole or any part of the pleading or other document be struck or amended on the ground that:
a) it discloses no reasonable claim or defence, as the case may be;
b) it is unnecessary, scandalous, frivolous or vexatious;
c) it may prejudice, embarrass or delay the fair trial of the proceeding; or
d) it is otherwise an abuse of the process of the court.

[40] Where one or more of the grounds enumerated in Rule 9-5(1) are made out, the Court may pronounce judgment or order that the proceeding be stayed or dismissed, and that the costs of the application be paid as special costs.

[41] The raison d’être of Rule 9-5(1) is as a mechanism to enforce the rules of pleadings: Doyle Construction Co. v. Carling O’Keefe Breweries of Canada Ltd., [1988] B.C.J. No. 831, 27 B.C.L.R (2d) 81 (C.A.) [Doyle].

[42] The paramount function of pleadings is to define the issues of fact and law with clarity and precision, in order to give the opposing party fair notice of the case to be met at trial. Equally important is that by defining the essential contours of the case, pleadings facilitate useful pretrial case management, establish the parameters of pretrial discovery and disclosure, and determine the necessity and scope of expert opinions: Keene v. British Columbia (Ministry of Children and Family Development) & Others, 2003 BCSC 1544; Sahyoun v. Ho, 2013 BCSC 1143 [Sahyoun].

[43] Pleadings are not a vehicle to outline a detailed narrative of the facts and events that may have bearing upon the case. Evidence is not to be included: Sahyoun at para. 29; Rule 3-7(1). Rather, pleadings must be summary in nature, setting out a concise and orderly statement of the material facts that give rise to the claim (or counterclaim), establish a defence, or relate to matters raised by the claim: Doerksen v. First Open Heart Society of British Columbia, 2010 BCSC 1291.

[44] Material facts are the facts that are essential to formulate each cause of action or defence; no averment crucial to success should be omitted: Pyke v. Price Waterhouse Ltd. , 40 C.P.C. (3d) 7, 1995 CarswellBC 907 (S.C.); Delaney & Friends Cartoon Productions Ltd. v. Radical Entertainment Inc. et al, 2005 BCSC 371; Skybridge Investments Ltd. v. Metro Motors Ltd., 2006 BCCA 500; Young v. Borzoni et al, 2007 BCCA 16 at para. 20.

[45] It is the expectation that material facts will be stated succinctly and with precision, and also be organized in a way that informs the Court of the issues of fact and law it is being called upon to decide: Homalko Indian Band v. British Columbia, [1998] B.C.J. No. 2703, 25 C.P.C. (4th) 107 (S.C.); Glenayre Manufacturing v. Pilot Pacific Properties, et al, 2003 BCSC 303.

 

[46] Particulars and material facts are different in their character and purpose. Broadly speaking, particulars are intended to limit the generality of the pleadings and the issues to be tried; enable the other side to properly prepare for trial; tie the hands of the party supplying the particulars; and inform the opposing party what the pleader intends to prove, as distinct from the mode in which the case is to be proved: Cansulex Ltd. v. Perry, 1982 CarswellBC 836 (C.A.). They should follow the material facts and be identified as such. Although particulars must supply sufficient detail of the case to be met, they are not to include the evidence that is anticipated will be adduced at trial to prove the pleaded facts.

 

[47] The distinctions between evidence and material facts, and between evidence and particulars can be difficult to draw in practice. Despite the challenges, the integrity of those lines must be maintained as stringently as is reasonably possible.

[48] Where a party pleads a legal conclusion such as, for example, the existence of a duty of care or of a fiduciary duty, sufficient material facts must be pleaded to support that conclusion: Ferstay v. Dywidag Systems International, 2008 BCSC 793; Rule 3‑7(9).

[49] Where, as in the case at hand, there are allegations of fraud, breach of trust, undue influence and misrepresentation, inclusion of full particulars, including the dates and items as they are known at the time of the pleading, are mandatory: Rule 3‑7(18).

[50] Rule 9‑5(2) confirms that no evidence is admissible on an application brought to strike a pleading on the ground that it does not disclose a reasonable claim or defence. The facts are to be taken as pleaded. Evidence is admissible, however, in relation to the other grounds.

[51] In Citizens for Foreign Aid Reform Inc. v. Canadian Jewish Congress, 36 C.P.C. (4th) 266, 1999 CarswellBC 2111 (S.C.), Romilly J. provided an overview of the key principles that inform the analysis of whether a pleading ought to be struck under the predecessor to sub-rules 9-5(1)(b) and (c) at para. 47:
[47] Irrelevancy and embarrassment are both established when pleadings are so confusing that it is difficult to understand what is being pleaded: Gittings v. Caneco Audio-Publishers Inc. (1987), 17 B.C.L.R. (2d) 38 (B.C.S.C.). An “embarrassing” and “scandalous” pleading is one that is so irrelevant that it will involve the parties in useless expense and will prejudice the trial of the action by involving them in a dispute apart from the issues: Keddie v. Dumas Hotels Ltd. (1985), 62 B.C.L.R. 145 at 147 (B.C.C.A.). An allegation which is scandalous will not be struck if it is relevant to the proceedings. It will only be struck if irrelevant as well as scandalous: College of Dental Surgeons of B.C. v. Cleland, (1968), 66 W.W.R. 499 (B.C.C.A.). A pleading is “unnecessary” or “vexatious” if it does not go to establishing the plaintiff’s cause of action or does not advance any claim known in law: Strauts v. Harrigan, [1992] B.C.J. No. 86 (Q.L.) (B.C.S.C.). A pleading that is superfluous will not be struck out if it is not necessarily unnecessary or otherwise objectionable: Lutz v. Canadian Puget Sound Lumber and Timber Co. (1920), 28 B.C.R 39 (C.A.). A pleading is “frivolous” if it is obviously unsustainable, not in the sense that it lacks an evidentiary basis, but because of the doctrine of estoppel: Chrisgian v. B.C. Rail Ltd. et al. (6 July 1992), Prince George Registry 20714 (B.C.S.C.).

[52] A pleading may be embarrassing or scandalous within the contemplation of the Rule where it: does not state the real issues in an intelligible form; is overly prolix; includes irrelevant facts; is calculated to confuse the opposing party and make it difficult, and perhaps impossible, to answer; or contains arguments or evidence: Kuhn v. American Credit Indemnity Co., [1992] B.C.J. No. 953 (S.C.); McNutt v. A.G. Canada et al., 2004 BCSC 1113 at para. 41; B.C./Yukon Association of Drug War Survivors v. Abbotsford (City), 2014 BCSC 1817 at paras. 93-94; Spillane v. United Parcel Service Canada Ltd. et al, 2006 BCSC 687 at para. 22; Budgell v. British Columbia, 2007 BCSC 991 at para. 20.

[53] That being said, so long as the pleadings do not confuse the opposing party or make it difficult for that party to understand the case that must be met, sheer verbosity does not ordinarily provide sufficient justification for striking a claim: Doyle at para. 4; 347202 B.C. Ltd. v. Canadian Imperial Bank of Commerce, [1995] B.C.J. No. 449 (S.C.); Stanley v. KCL West Holdings Inc. et al, 2004 BCSC 1555.

[54] A crucial consideration in determining whether to strike a pleading under Rule 9‑5(1)(a) is whether it can be preserved by amendment: International Taoist Church Canada v. Ching Chung Taoist Association of Hong Kong Limited, 2011 BCCA 149. The prospect of rectifying deficient pleadings by way of amendment is also a factor in considering whether the pleading ought to be struck on the other grounds: Ahmed v. Assu, 2014 BCSC 1768; Willow v. Chong, 2013 BCSC 1083 at para. 23.

Adding a Party to an Action

Adding a Party to an Action

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

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

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

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

34      This subrule provides two alternate tests:

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

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

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

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

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

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

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

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