Converting a Petition to an Action

Converting a Petition to an Action

Kent v Kent 2017 BCSC 1392 discussed converting a Petition to an Action when a court action has been commenced by a Petition and becomes mired in the litigation process, usually due to disputed facts, and requires the petition process to be converted to an… Read more

Domicile

Domicile

Sato v Sato 2017 BCSC 1394 discusses in detail the legal issue of domicile. The issue was whether the deceased was domiciled in British Columbia at the time of his marriage to the plaintiff. If so his  2011 Will was revoked by operation of law…. Read more

Appeals From Master's Orders

Appeals From Master’s Orders

In Abermin Corp. v. Granges Exploration Ltd. (1990), 45 B.C.L.R. (2d) 188, 42 C.P.C. (2d) 25 (S.C.), Mr. Justice MacDonald succinctly set out the scope of review on an appeal from a Master’s order. He said at p. 31 [C.P.C.]: An appeal from a Master’s… Read more

Breach of Trust: "Knowingly Participating"

Breach of Trust: “Knowingly Participating”

In Scoretz v Kensam Enterprises Ltd 2017 BCSC 1356 a director of a corporate bare trust was found liable for damages for “knowingly participating” in the breach of trust by failing to deliver shares held in trust . The court found that it is clear… Read more

The Test For An Injunction

The Test for an Injunction

Grieg v Kritikopoulou 2017 ONSC 4594 sets out the Supreme Court of Canada test for the granting of an interlocutory  injunction to restrain certain activity 11 The moving party must meet the following three-part test to success on a motion seeking an interlocutory injunction: a)… Read more

Litigation Guardian: Lawyers Can Assess Mental Capacity

Litigation Guardian: Lawyers Can Assess Mental Capacity

In Gengenbacher v. Smith, 2016 BCSC 1164, the court examined what is the test that a solicitor must satisfy to determine if the solicitor can represent an individual seeking to be a litigation guardian of an adult under a legal disability and determined that the… Read more

Offers to Settle and Double Cost Awards

Offers to Settle and Double Costs

Connor Estate 2017 BCSC 1341 dealt with the issue of whether the plaintiff should be  awarded double costs after the filing of an offer to settle that the plaintiff beat at the trial. The issue was whether the plaintiff Chambers was a spouse of the… Read more

Same Sex Partnership: The Civil Marriage Act

Same Sex Partnership

Hinks v Gallardo 20114 ONCA 494 held that a British same sex partnership was a valid spousal marriage in Ontario and presumably also in British Columbia. A Canadian and a British citizen entered into a civil partnership under the Civil Partnership Act (UK) which created… Read more

Re-Opening a Trial: New Evidence

Re-Opening a Trial: New Evidence

Lambert v Peachman 2017 ONSC 4270 outlined the law relating to what is necessary in the form of new evidence to re-open a trial. Analysis 26      The principles and authority to re-open evidence of a trial are well established and noted by the Supreme Court… Read more

Sworn Financial Disclosure

Sworn Financial Disclosure

Shinder v Shinder 2017 ONSC 4177  sets out the importance of how sworn financial disclosure in family (and estate) court actions must be honest and complete as it is a “bedrock principle” that the parties are entitled to rely upon. The Supreme Court of Canada… Read more

Rebutting the Presumption of Resulting Trust

Rebutting the Presumption of Resulting Trust

The BC Appeal Court in Winstanley v Winstanley 2017 BCCA 265 ordered a new trial on the basis that the trial Judge erred in his determination as to whether the evidence at trial had rebutted the presumption of a resulting trust that arises when a… Read more

B.C. Court Case Transferred to Alberta

B.C. Case Transferred to Alberta

In subsequent reasons for judgement Cresswell v Cresswell 2017 BCSC 1183 a BC Court ordered a court action transferred to Alberta after finding that the plaintiff did not have standing to bring the action in BC as she was ordinarily resident in Alberta, did not… Read more

Summary of Special Costs Awarded by the Court

Summary of Special Costs

When one litigant is ordered to pay all or most of the other  litigants legal fees it is an award of special costs, and Siemens v Howard 2017 BCSC 1193 is a good summary of when the court will award special costs. The single standard… Read more

Unjust Enrichment Disallowed For Family Workers

Unjust Enrichment Disallowed For Family Workers

The BC Appeal Court in McDonald v McDonald 2017 BCCA 255 disallowed an award for unjust enrichment for various children who worked on the family farm for years without compensation, finding that “chores” amounted to a juristic reason to refuse a claim for unjust enrichment…. Read more

Is it a Petition or Notice of Claim?

Petition or Notice of Claim?

Litigators must choose the appropriate forum to commence a court action: a petition or notice of claim. Most cases are commenced by the use of a notice of claim while certain types of cases may or must be commenced by petition. Carphin v Braich Estate… Read more