The Principles of Moot Court Cases

The Principles of Moot Court Cases

Moot court cases occur when a determination is sought on a matter which when decided by the court will not have any practical effect on the existing dispute such as the legal issue no longer exists.

The courts do however have discretion when the moot case is important enough to hear the case such as occurred in DaGG V Cameron Estate 2017 ONCA 366  where there was a strong public issue that required determination.

The General Principles of Moot Court Cases

31      Where, as here, the dispute between the parties has disappeared, the court still retains the discretion to proceed to hear the merits of the appeal: Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 (S.C.C.), at p. 353.

32      The exercise of that discretion is guided by a consideration of the presence or absence of the three rationales underpinning the mootness doctrine:

(i) whether the issues can be well and fully argued by parties who have a stake in the outcome;

(ii) the concern for judicial economy; and

(iii) the need for the court to remain alive to the proper limits of its law-making function in order to avoid intrusions into the role of the legislative branch: Borowski, at pp. 358-63; Ontario Provincial Police Commisioner v. Mosher, 2015 ONCA 722, 330 C.C.C. (3d) 149 (Ont. C.A.), at paras. 31-32. The interplay amongst the three rationales was described in Borowski at p. 363:

In exercising its discretion in an appeal which is moot, the Court should consider the extent to which each of the three basic rational for enforcement of the mootness doctrine is present. This is not to suggest that it is a mechanical process. The principles identified above may not all support the same conclusion. The presence of one or two of the factors may be overborne by the absence of the third, and vice versa.

Application of the principles in Moot Court Cases

33      Applying these criteria to this appeal, I have no concern about the absence of an adversarial relationship. Counsel for both parties argued the appeal with the same vigour as if the matter were not moot.

34      Regarding the factor of judicial economy, I am persuaded that although this is a case capable of repetition, it is one that could be evasive of review by this court given the costly three-stage appeal process involved: Borowski, at pp. 360, 364; Mosher, at para. 34

35      As well, there exists a strong public interest in the resolution of the legal issues raised by this appeal: Tamil Co-operative Homes Inc. v. Arulappah (2000), 49 O.R. (3d) 566 (Ont. C.A.), at paras. 25 and 26. The parties point to the long-standing practice in this province of including in separation agreements and court spousal and child support orders provisions requiring a payor spouse to maintain life insurance coverage and name the recipient spouse and children as beneficiaries under the policy. The effect of the Divisional Court’s decision is to expose such life insurance proceeds to competing claims under the SLRA from other children and former or subsequent spouses of the deceased payor. The implications of the Divisional Court decision will be felt well beyond the boundaries of this case.

36      Finally, the parties are not asking the court to decide an abstract question and thereby intrude improperly into the legislative sphere: Borowski, at p. 365. The issues raised by the parties are grounded in the specific facts in the record. The appeal was fully argued by interested parties based on a complete record, which puts the court in a position to make a fully informed decision on the issues of public importance raised by the appeals.

37      For these reasons, I would exercise our discretion to determine the issues raised in the appeal despite its mootness.

Dismissal For Delay (Want of Prosecution)

Dismissal For Delay (Want of Prosecution)

PMC Builders & Developers Ltd v Country West Construction Ltd 2009 BCCA 535 is one of the leading cases in BC for dismissal of a court action for delay, also known as want of prosecution.

It was recently followed in an estate case Re Strom estate 2017 BCSC 824 where the court declined to dismiss the case for delay in proceeding with the case to resolution.

It is a fact that a certain number of court cases are commenced and then never set for trial and sit for literally years without being resolved. It is open to the opposing party to apply to dismiss such an  action for delay. The courts will not dismiss an action for delay lightly and will review a number of criteria, especially any prejudice caused to the opposing party by the delay.

The test essentially is on balance is it in the interest of justice to dismiss the case for delay.

Dismissal For Delay: The Law

Lengthy delay by a plaintiff in bringing a claim to trial must be carefully considered in the context of evidence presented by both sides as to actual prejudice to the defendant in presenting its case at trial. Any prejudice will only be material to the extent that it was caused by the plaintiff’s inordinate delay, not by other events.

20      As Esson J.A. said in Tundra Helicopters Ltd. v. Allison Gas Turbine, 2002 BCCA 145, 98 B.C.L.R. (3d) 238 (B.C. C.A.), at para. 37: “It is no light matter to dismiss an action for want of prosecution.” He continued:
As Diplock L.J. said in Allen v. Sir Alfred McAlpine & Sons Ltd., [[1968] 2 Q.B. 229 (C.A.)] at p. 259:
The application is not usually made until the period of limitation for the plaintiff’s cause of action has expired. It is then a Draconian order and will not be lightly made. It should not in any event be exercised without giving the plaintiff an opportunity to remedy his default, unless the court is satisfied either that the default has been intentional and contumelious, or that the inexcusable delay for which the plaintiff or his lawyers have been responsible has been such as to give rise to a substantial risk that a fair trial of the issues in the litigation will not be possible at the earliest date at which, as a result of the delay, the action would come to trial if it were allowed to continue.
21      Country West brought its motion in the present case well before expiration of the applicable limitation period in contract. I will return later to this aspect of the matter.
22      The appellant offered no explanation for the delay in prosecuting its claims and, as I have said, conceded before the chambers judge that the delay was inordinate and not excusable. I would not say, however, that the appellant’s conduct was contumelious. The appellant was merely
23      In addition to Tundra Helicopters , the leading cases in this court on R. 2(7) are Irving v. Irving (1982), 38 B.C.L.R. 318 (B.C. C.A.) and Busse v. Robinson Morelli Chertkow (1999), 63 B.C.L.R. (3d) 174 (B.C. C.A.).
24      In Irving, the action was brought by a wife against her husband for an interest in her husband’s business. The action was founded in partnership and quantum meruit. It remained dormant for ten years until the husband sought dismissal for want of prosecution. This was denied by a chambers judge but granted on appeal. The evidence was that the delay was a deliberate tactic in the hope that the law would change. Eventually the law did change in the case of Becker v. Pettkus, [1980] 2 S.C.R. 834 (S.C.C.), and the wife sought an amendment in her action to plead a constructive trust remedy. This court emphasized that the delay was deliberate and tactical as opposed to being negligent or caused by illness or impecuniosity. In addition, the court found that there was a direct conflict in the evidence of the husband and the wife as to the involvement of the latter in the business and that the husband was denied the testimony of several independent witnesses who had died and who would likely have been able to give material evidence in the area of conflict. There was a finding of specific prejudice.
25      In Irving, the court adopted the principles governing an application for dismissal for want of prosecution – delay and prejudice – as discussed in the Allen v. Sir Alfred McAlpine & Sons Ltd. [[1968] 2 Q.B. 229 (Eng. C.A.)] case in the passage I have already set out. At p. 328, Seaton J.A. said this:
The demonstration of inordinate delay, inexcusable delay and serious prejudice does not lead necessarily to dismissal. Those three factors are only the primary considerations; all of the circumstances must be considered. It is still for the courts to decide “whether or not on balance justice demands that the action should be dismissed”. Salmon L.J. in Allen v. Sir Alfred McAlpine & Sons Ltd. All of the statements of law are subject to the overriding principle that essential justice must be done. (See Freeman J.A., as he then was, in Ross and Ross v. Crown Fuel Co. Ltd. et al (1962), 41 W.W.R. 65 at 88, 37 D.L.R. (2d) 30 (Man.C.A.).)
26      In Busse, the action was framed in misrepresentation, breach of trust and breach of fiduciary duty against several defendants. The events giving rise to the litigation occurred in the early- to mid-1980s. The action was commenced in 1991 and more than six years later the defendants brought motions to dismiss for want of prosecution. The chambers judge adjourned the applications for consideration by the trial judge. In so doing, he applied obiter dictum given by Lambert J. A. in concurring reasons in Irving. On appeal, this court applied the statement of the law given by Seaton J. A. in Irving with reference to what was said in Allen. The delay was inordinate and inexcusable. It was intentional and for tactical purposes. There was “a strong likelihood of actual prejudice” to the defendants in presenting their cases at trial. The action was dismissed.
27      These cases suggest to me that a chambers judge charged with the hearing of an application for dismissal of an action for want of prosecution is bound to consider the following:
(1) the length of the delay and whether it was inordinate;
(2) any reasons for the delay either offered in evidence or inferred from the evidence, including whether the delay was intentional and tactical or whether it was the product of dilatoriness, negligence, impecuniosity, illness or some other relevant cause, the ultimate consideration being whether the delay is excusable in the circumstances;
(3) whether the delay has caused serious prejudice to the defendant in presenting a defence and, if there is such prejudice, whether it creates a substantial risk that a fair trial is not possible at the earliest date by which the action could be readied for trial after its reactivation by the plaintiff; and
(4) whether, on balance, justice requires dismissal of the action.
28      I consider the fourth question to encompass the other three and to be the most important and decisive question.

Costs: The Standard of Review

Costs: The Standard of Review

The BC Court of Appeal in Giles v Westminster Savings Credit Union 2010 BCCA 282 reviewed the standard of awarding costs and the various purposes for an award of costs.

The case was recently followed in Kyle Estate v Kyle 2017 BCSC 752 which stated inter alia  that the discretion to order the payment of double costs must be exercised in a just, principled and consistent way: Giles v. Westminster Savings Credit Union (2010, 5 B.C.L.R. (5th) 252 at para. 88 and such an order is permissive, not mandatory: Buttar v. Di SpiritoI, 2009 BCSC 72 at para.

Standard Review of Costs

72      Before considering the various challenges to the trial judge’s costs orders, I note that such orders are discretionary and appellate review is limited in scope. As Arbour J. stated in Hamilton v. Open Window Bakery Ltd. (2003), 2004 SCC 9, [2004] 1 S.C.R. 303 (S.C.C.), “[a] court should set aside a costs award on appeal only if the trial judge has made an error in principle or if the costs award is plainly wrong”: para. 27. More recently, in Victoria (City) v. Adams, 2009 BCCA 563, 313 D.L.R. (4th) 29 (B.C. C.A.), this Court said:

[180] The general rule with respect to costs is that they follow the event and are assessed on a party and party basis unless the court otherwise orders: Rules 57(9) and 57(1) of the Rules of Court. Courts retain the discretion to depart from the general rule where the circumstances justify a different approach: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371 at para. 22. It is a broad discretion, and this Court will only interfere “if there is misdirection or the decision is so clearly wrong as to amount to an injustice”: Agar v. Morgan, 2005 BCCA 579 at para. 26.

Misdirection may include making an error as to the facts, taking into consideration irrelevant factors, or failing to take into account relevant factors, all of which would amount to an error in principle: Sutherland v. Canada (Attorney General), 2008 BCCA 27, 77 B.C.L.R. (4th) 142 (B.C. C.A.) at para. 24.

73      However, the discretion with respect to costs is not wholly unencumbered. As Mr. Justice Seaton stated in Royal Trust Corp. of Canada v. Clarke (1989), 35 B.C.L.R. (2d) 82 (B.C. C.A.) at 88:

Costs are in the discretion of the court, but it does not follow that the judge is to do whatever pleases him at the moment. Rules and decisions offer guidance that should ensure that different judges in similar cases make similar decisions.

74      The purposes for which costs rules exist must be kept in mind in determining whether appellate intervention is warranted. In addition to indemnifying a successful litigant, those purposes have been described as follows by this Court:

• “Deterring frivolous actions or defences”: Houweling Nurseries Ltd. v. Fisons Western Corp. (1988), 37 B.C.L.R. (2d) 2 (B.C. C.A.), leave ref’d, [1988] 1 S.C.R. ix;

• “To encourage conduct that reduces the duration and expense of litigation and to discourage conduct that has the opposite effect”: Skidmore v. Blackmore (1995), 2 B.C.L.R. (3d) 201 (B.C. C.A.) at para. 28;

• “Encouraging litigants to settle whenever possible, thus freeing up judicial resources for other cases: Bedwell v. McGill, 2008 BCCA 526, 86 B.C.L.R. (4th) 343 (B.C. C.A.) at para. 33;

• “To have a winnowing function in the litigation process” by “requir[ing] litigants to make a careful assessment of the strength or lack thereof of their cases at the commencement and throughout the course of the litigation”, and by “discourag[ing] the continuance of doubtful cases or defences”: Catalyst Paper Corp. v. Companhia de Navegação Norsul, 2009 BCCA 16, 88 B.C.L.R. (4th) 17 (B.C. C.A.) at para. 16.

75      Lastly, it must be also remembered that “the person who seeks to displace the usual rule [as to costs] has the burden of persuading the judge that the rule should be displaced”: Grassi v. WIC Radio Ltd. 2001 BCCA 376, 89 B.C.L.R. (3d) 198 (B.C. C.A.) at para. 24.

 

The Rising Trend of Self Represented Litigants

Self Represented Litigants

The Ontario Court of Appeal in Moore v Apollo & Beauty Care 2017 ONCA 383 discussed the increasing trend of self  represented litigants appearing before the courts.

Self represented litigants present a problem for both the Court and any opposing counsel due to their general unfamiliarity with the procedures of court.

The Court stated:

[41]            The new reality of civil litigation in public courts is the significant number of parties who are not represented by a lawyer, but present their own cases. Presiding over a trial where a party is not represented by a lawyer poses distinct challenges for a trial judge, and also brings with it distinct responsibilities.

[42]            Both the challenges and responsibilities are succinctly described in the Statement of Principles on Self represented Litigants and Accused Persons (the “Statement”) issued by the Canadian Judicial Council in September 2006. The Supreme Court of Canada endorsed the Statement in Pintea v. Johns, 2017 SCC 23.

[43]            The main challenge faced by a trial judge when a party is not represented by a lawyer lies in the difficulty of managing an adversarial proceeding when one party lacks formal training in the law and its procedures. As described by the Statement, at p. 3:

Self represented persons are generally uninformed about their rights and about the consequences of choosing the options available to them; they may find court procedures complex, confusing and intimidating; and they may not have the knowledge or skills to participate actively and effectively in their own litigation.

[44]            While self represented persons vary in their degree of education and sophistication, I think it safe to say that most find court procedures “complex, confusing and intimidating.” That state of affairs gives rise to the responsibility of judges to meet the need of self-represented persons for “simplicity” and to provide “non-prejudicial and engaged case and courtroom management” to protect the equal rights of self-represented persons to be heard: Statement, pp. 4 and 6.

[45]            The Statement, at p. 7, offers specific advice to judges about how to meet their responsibilities to self-represented persons in the courtroom environment:

Judges have a responsibility to inquire whether self represented persons are aware of their procedural options, and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications, before the self-represented person makes critical choices.

In appropriate circumstances, judges should consider providing self-represented persons with information to assist them in understanding and asserting their rights, or to raise arguments before the court.

Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons. 

 

 

 

 

Special Costs Not to Include Pre Litigation Conduct

Special Costs Not to Include Pre Litigation Conduct

The BC Appeal court in Smithies Holdings Inc. v. RCV Holdings Ltd., 2017 BCCA  extensively reviewed the law relating to an award of special costs and held that reprehensible pre litigation conduct should not be included when a judge exercises his or her discretion  as to award or not award special costs.

The court stated that oppressive or reprehensible conduct by a party in pre litigation might instead be awarded punitive damages, but any costs award for such behaviour should be limited to during the course of the litigation and not before.

Special costs are typically awarded when there has been some form of reprehensible conduct on the part of one of the parties: Young v. Young [1993] 4 SCR 3 at 134–138. Special costs are not compensatory; they are punitive: Grewal v. Sandhu, 2012 BCCA 26 at para. 106. They are awarded when a court seeks to disassociate itself from some misconduct: Fullerton v. Matsqui (District) (1992), 74 B.C.L.R. (2d) 311 (C.A.) at para. 23. There are circumstances where special costs may be ordered where there has been no wrongdoing: Gichuru v. Smith, 2014 BCCA 414 at para. 90. These reasons are not concerned with such types of cases.

[57]         The leading authority on special costs is this Court’s decision in Garcia v. Crestbrook Forest Industries Ltd. (1994), 9 B.C.L.R. (3d) 242 (C.A.). There, Mr. Justice Lambert, writing for the Court, set out that the threshold for special cost awards is “reprehensible conduct”. He noted the continuum of circumstances in which special costs could be awarded, ranging from “milder forms of misconduct deserving of reproof or rebuke” to “scandalous or outrageous conduct”:

[17]      Having regard to the terminology adopted by Madam Justice McLachlin in Young v. Young, to the terminology adopted by Mr. Justice Cumming in Fullerton v. Matsqui,  and to the application of the standard of “reprehensible conduct” by Chief Justice Esson in Leung v. Leungin awarding special costs in circumstances where he had explicitly found that the conduct in question was neither scandalous nor outrageous, but could only be categorized as one of the “milder forms of misconduct” which could simply be said to be “deserving of reproof or rebuke”, it is my opinion that the single standard for the awarding of special costs is that the conduct in question properly be categorized as “reprehensible”. As Chief Justice Esson said in Leung v. Leung, the word reprehensible is a word of wide meaning. It encompasses scandalous or outrageous conduct but it also encompasses milder forms of misconduct deserving of reproof or rebuke. Accordingly, the standard represented by the word reprehensible, taken in that sense, must represent a general and all encompassing expression of the applicable standard for the award of special costs.

[100]    At the outset, it is important to emphasize that in exercising the power to fix costs a judge cannot act arbitrarily or capriciously. He or she must act in a manner consistent with the Rules and the principles that have long governed such awards. In Stiles v. B.C. (W.C.B) (1989), 38 B.C.L.R. (2d) 307 (C.A.) at 310, Lambert J.A. articulated the limits on a judge’s power to award costs:
…Generally, the decisions on costs, including both whether to award costs, and, if awarded, how to calculate them, are decisions governed by a wide measure of discretion. See Oasis Hotel Ltd. v. Zurich Insurance Co. (1981), 28 B.C.L.R. 230, [1981] 5 W.W.R. 24, 21 C.P.C. 260, [1982] I.L.R. 1-1459, 124 D.L.R. (3d) 455 (C.A.). The discretion must be exercised judicially, i.e. not arbitrarily or capriciously. And, as I have said, it must be exercised consistently with the Rules of Court. But it would be a sorry result if like cases were not decided in like ways with respect to costs. So, by judicial comity, principles have developed which guide the exercise of the discretion of a judge with respect to costs. Those principles should be consistently applied; if a judge declines to apply them, without a reason for doing so, he may be considered to have acted arbitrarily or capriciously and not judicially.
[Emphasis added in [131]     As has been set out in many authorities reviewed here, pre-litigation conduct that gives rise to a cause of action will already be the subject of a damage award flowing from the objectionable conduct. Where a party’s misconduct is so malicious, oppressive and high-handed that it offends the court’s sense of decency, an award of punitive damages may also follow. Whiten provides a principled structured framework for such awards.

[132]     Special costs are an inherently unsatisfactory mechanism to punish pre-litigation conduct. Special costs are intended to punish reprehensible conduct which as per Garcia includes scandalous or outrageous conduct as well as milder forms of misconduct deserving of reproof or rebuke. The case law has considered a range of pre-litigation conduct, including breach of contract, negligence, breach of fiduciary duty, fraud, misappropriation, deceit, sexual assault, failure to follow a constitutionally mandated process and murder. All such conduct could be said to be deserving of rebuke.

[133]     Attempting to draw the line on a principled basis as to what pre-litigation conduct should be sanctioned by special costs and which should not is, as amply demonstrated by the case law, a near impossible task. It is also an unnecessary task as the law already provides appropriate relief and remedies for such conduct. In my respectful opinion, special costs should only be awarded to punish reprehensible conduct in the litigation.

[134]     In the result, I am of the view that a bright line can and should be drawn so that judges will be able to exercise their discretion in like cases in a like manner. Special costs should be reserved to punish and deter reprehensible conduct in the course of litigation. Pre-litigation conduct should not be considered in determining whether such an award is appropriate. There are other suitable mechanisms to censure pre-litigation conduct.

APPLICATION OF THE BRIGHT LINE RULE

[135]     It is clear from the trial judge’s reasons that special costs were awarded in this case because of the pre-litigation conduct. That conduct was the central issue in the trial. It is the basis of RCV’s claim for loss of opportunity. I note in his costs reasons the trial judge stated that RCV did not claim punitive damages and in the circumstances of this case, it could not have done so. While it is true that RCV did not seek punitive damages, I am not aware of any reason why it could not have done so.

[136]     For the reasons I have set out, pre-litigation conduct should not have been considered in determining the cost award. I thus find the trial judge erred in principle. In the result, I would allow the appeal and set aside the award of special costs. RCV is entitled to the costs of the trial on a party and party basis. The Appellants are entitled to the costs of the appeal.

Independent Legal Advice – 7 Factors to Look For

Independent Legal Advice

I am typically attempting to set aside a transaction or a will and I often look to see if there was independent legal advice (ILA) given and if so, was it truly independent.

For example on a recent file a daughter took her mother to a lawyer and instructed the lawyer to transfer the mother’s property into joint tenancy with her mother’s  grandson, the son of the instructing daughter.

The owner/grandmother then died and the grandson purported to be the owner of the property.

When we obtained and reviewed the lawyers file, he not only took instructions to prepare the transfer from the mother of the recipient grandson of the interest in joint tenancy,  but the bill was also rendered to the daughter , while meanwhile the lawyer  takes the position that he acted for the donor grandmother.

If so, where was her independent legal advice?

Factors to Look For in Independent Legal Advice

1. The person taking advantage of the wealth transfer is present at the time the advice is given or the time the documents are signed.

2. Some or all of the instructions have come from the person taking advantage from the transaction.

3. The lawyer does not have a full understanding of the client’s overall asset picture, and is unable to assess or to discuss the extent to which it will impoverish them.

4. The lawyer has any prior professional relationship with the person taking advantage.

5. The lawyer has a past or current personal relationship with the person taking advantage (e.g., childhood friend, best friend of lawyer’s wife).

6. The lawyer is upon close scrutiny really acting for someone other than the client, or is acting in a joint retainer with the person taking advantage.

7. Any part of the fees are being paid by the person taking advantage under the rela­tionship rather than by the client himself or herself.

Use of Multiple Wills Approved

Use of Multiple Wills Approved

In re: Berkner Estate 2017 BCSC 619 the Court approved the use  of Multiple Wills in estate planning. 

The applicant submits that a person is entitled to have more than one valid will. As an example, multiple wills may be used when a will maker has assets in multiple jurisdictions. Rather than preparing a single will and then seeking a resealing in all other jurisdictions where the deceased holds property, multiple wills may be utilized. The Canadian Estate Planning Guide (Toronto: Wolters Kluwer, 1995) (loose-leaf revision 233), ch. 10, at p. 216 states:

In a world in which individuals frequently maintain assets in different jurisdictions, the convenience of using multiple wills has long been recognized. The testator simply prepares an original will for each jurisdiction in which he or she has assets. The principal advantage is that each will can be submitted to the proper court or put into effect without any dependence on the other will(s). Where there are assets in several jurisdictions, there is no need to limit oneself to two wills. But in each case, care should be taken to ensure that the will satisfies the formalities of execution of the relevant jurisdiction. Likewise, it is necessary to ensure that one will does not accidentally deal with assets that are also dealt with under another will and thereby create a situation of conflict, presumably resulting in the provisions of the later-dated will having priority with respect to the disposition of such assets.

10      There is no evidence that the deceased prepared two wills to address jurisdictional issues. A more likely motivation for the two wills is found in the following paragraph from the Canadian Estate Planning Guide:

Multiple wills are also used in some provinces as a means of reducing probate tax. Simply put, the basic strategy is to sequester assets that do not require probate in one will, while dealing with the remaining assets that do require probate in a second will. Of course, only the second will is probated, thereby saving probate tax on the assets covered by the primary will. . . .

11      The estate planning strategy of preparing two wills but only applying for probate of one of them was permitted in two Ontario cases, Granovsky Estate v. Ontario, 1998 CanLII 14912, 156 DLR (4th) 557, which I will refer to later, and also in Kaptyn v. Kaptyn (2010), 2010 ONSC 4293.

12      Authority for permitting two wills can be found in Astor, In the Goods of, [1876] P.D. 150, at p. 152:

. . . The question of incorporation in the probate of separate documents has frequently been a subject of consideration, and, I may say, a troublesome matter both to myself and my predecessors, in carrying out the jurisdiction I have now to exercise. I endeavoured to lay down the principles which should guide me in these cases In the Goods of Lord Howden (4), in which I held that where an English will ratifies and confirms a foreign will, it is right that the latter should be incorporated in the probate. In the present case, however, the testator has carefully used the clearest and strongest language to indicate his intention of keeping the English property separate from the American, and for that purpose has made the English will, which does not purport to ratify or confirm the American will, but merely expresses his desire that, if the two cannot be kept totally distinct, the English will shall be treated as a codicil to the American one. I have come to the conclusion that his wishes need not be disappointed, and that there is no reason why I should insist on the incorporation of the American will in the English probate.

13      The Astor case was referred to by the Ontario Court in each of Granovsky Estate and Kaptyn, and I am satisfied that it remains good law in the absence of any rule or legislation to the contrary 

Gratuitous Agency

Gratuitous Agency

Agency can simply be defined as a person authorized by another to act for him or her with entrusted business, and the agent represents that the agent is acting for another under the contract of the relation of agency.

The  case of Siemens v Howard 2017 BCSC 587 involved the plaintiff alleging a gratuitous realtor agency agreement that had been breached and damages should be awarded. The judge found that there was no agency agreement created.

A lawyer and a realtor are two common examples of the many types of agency relationships that exist in the business world.

The plaintiff  Siemens asserted that Mr. Howard was his realtor and agent, and that Mr. Howard acquired Old Riverside in breach of Mr. Howard’s obligations to Mr. Siemens.

The principal relief sought by Mr. Siemens is a declaration that Mr. Howard holds Old Riverside on a constructive trust for Mr. Siemens, and an order that the property be conveyed to Mr. Siemens accordingly. Mr. Siemens asserts that he is entitled to that relief based on the principles set out by the Supreme Court of Canada in Soulos v. Korkontzilas, [1997] 2 S.C.R. 217 (“Soulos SCC“), where a constructive trust was imposed as a remedy for wrongful conduct by an agent. A claim for general damages was abandoned by Mr. Siemens at the close of trial.

3      Mr. Howard says that there was never any agency relationship between him and Mr. Siemens, that he owed no obligations to Mr. Siemens and that, at all times, he was entitled to acquire Old Riverside for himself.

Mr. Howard says that he and Mr. Siemens discussed Mr. Siemens acquiring a portion of Old Riverside from Mr. Howard, but they were never able to reach an acceptable agreement on the essential terms. Accordingly, Mr. Howard says that he has no liability to Mr. Siemens and the action should be dismissed.

The Court found there was no agency relationship and dismissed the claim.

130      The principle applicable to deemed or gratuitous agency is stated in Bowstead & Reynolds on Agency, 20th ed. (London: Sweet & Maxwell, 2014), at p. 61, as follows:

Agreement between principal and agent may be implied in a case where each has conducted himself towards the other in such a way that it is reasonable for that other to infer from that conduct consent to the agency relationship.

131      That principle was cited and applied, for example, at trial in Soulos v. Korkontzilas (1991), 4 O.R. (3d) 51 (Gen. Div.) (“Soulos Trial“), at pp. 65-66, in support of the trial judge’s finding that Mr. Korkontzilas was the agent of Mr. Soulos. This finding was accepted in the subsequent appeals to the Ontario Court of Appeal and the Supreme Court of Canada. Indeed, in Soulos SCC, McLachlin J. observed, at para. 12, that “Most real estate transactions involve one person acting gratuitously for the purchaser, while seeking commission from the vendor.”

132      Thus, the fact that Mr. Siemens had no obligation to pay a commission to Mr. Howard is irrelevant to the question whether a deemed agency relationship existed.

133      The concept of gratuitous agency in relation to a realtor or real estate agent appears to have received little explicit attention in B.C. It is mentioned in Sandhu v. Shiell, 1996 CanLII 2193 (B.C.C.A.), where Lambert J.A. (writing for the court) said:

16      The [plaintiffs/appellants’] argument based on the existence of a relationship of gratuitous agency is said to be supported by a decision of the Ontario District Court in Calandra v. B. A. Cleaners (1990), 11 R.P.R. (2d) 63 where such a relationship was found. Reliance was also placed both on that case and on this passage from the “Restatement of the Law” 2d ed., vol. 2: Agency (2d) of the American Law Institute, at s.378:

One who, by a gratuitous promise or other conduct which he should realize will cause another reasonably to rely upon the performance of definite acts of service by him as the other’s agent, causes the other to refrain from having such acts done by other available means is subject to a duty to use care to perform such service or, while other means are available, to give notice that he will not perform.

17      That is a statement of a very attractive legal principle. I would not be prepared to say, in the context of this case, that the concept of “gratuitous agency” is entirely foreign to the law of British Columbia, but it is not necessary for me to say anything more about it than that.

 

Gift to Witness to Will Cured By S 43 WESA

Gift to Witness to Will Cured By S 43 WESA

Bach Estate 2017 BCSC 548  cured a gift to witness to will to be valid   when prior to WESA  on March 31, 2014 it would  have been invalid.

One of the witnesses to the will was the husband of the deceased and a beneficiary under her will.

The Court followed the reasoning of previous decisions made under S 58 WESA to cure defective wills  and allowed extrinsic evidence to be introduced to show the true testamentary intention of the testator.

Validity

(2) A person may witness a will even though he or she may receive a gift under it, but the gift may be void under section 43 [gifts to witnesses].

(3) A will is not invalid only because a witness was, at the time the will was signed by the will-maker, or afterwards became, legally incapable of proving the will, unless the witness was not 19 years of age or older at the time the will was signed by the will-maker.

47      The document signed by Mr. Bach on September 9 meets the requirements of ss. 37(1) and 40 and is therefore a valid will under the WESA. This act revoked all prior wills created by Mr. Bach: s.55 WESA.

48      The difficulty arises from s. 43(1):

43(1)  WESA states:

Unless a court otherwise declares under subsection (4), a gift in a will is void if it is to

(a) a witness to the will-maker’s signature or to the spouse of that witness,

(b) a person signing the will by the will-maker’s direction, or the spouse of the person signing, or

(c) a person claiming under a person, other than the will-maker, referred to in paragraph (a) or (b).

49      One of the witnesses to this will was Mr. Thibodeau, the husband of the beneficiary under the will.

50      Prior to 2014, the law was clear: the court had no discretion to allow for such gifts: see Estate of Jason M. Bird, 2002 BCSC 1584. This rule operated as a safeguard against fraud and undue influence, however, the rigid application often defeat the genuine intention of the testator. Under the rule, the gift to Ms. Thibodeau would have failed.

51      However, on March 31, 2014, WESA came into force. Under this new legislation, gifts made in these circumstances are still presumptively void however, the court now has the discretion to declare them valid under s. 43(4):

(4) On application, the court may declare that a gift to a person referred to in subsection (1) is not void and is to take effect, if the court is satisfied that the will-maker intended to make the gift to the person even though the person or his or her spouse was a witness to the will.

52      I am not aware of any case in British Columbia in which this provision has been applied. I find however, that recent jurisprudence under s. 58 of the WESA (concerning court-ordered curing of formally deficient wills) that relates to testamentary intent instructive.

53      For example, in Yaremkewich Estate (Re), 2015 BCSC 1124, Watchuk J. considered s. 58 and the concept of testamentary intent. She stated:

[29] WESA, which came into effect on March 31, 2014, contains a new provision in s. 58 that even if a document fails to comply with the formalities of the statute, a court may nonetheless order that the document is fully effective as if it had complied with the statute.

The provision reads as follows:

Court order curing deficiencies

58(1) In this section, “record” includes data that

(a) is recorded or stored electronically,

(b) can be read by a person, and

(c) is capable of reproduction in a visible form.

(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents

(a) the testamentary intentions of a deceased person,

(b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or

(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.

(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made

(a) as the will or part of the will of the deceased person,

(b) as a revocation, alteration or revival of a will of the deceased person, or

(c) as the testamentary intention of the deceased person.

(4) If an alteration to a will makes a word or provision illegible and the court is satisfied that the alteration was not made in accordance with this Act, the court may reinstate the original word or provision if there is evidence to establish what the original word or provision was.

[30] Accordingly, s. 58(3)(a) empowers the court to order that a document or other record is fully effective as the will of a deceased person if the court is satisfied that the document represents the testamentary intentions of that deceased person.

[Emphasis added.]

54      The same inquiry is relevant under s. 43(4). Watchuk J. continued:

Evidence

[31] As a preliminary matter, the statements that Ms. Yaremkewich made to the various affiants and the other evidence of her intention in the affidavits are admissible evidence in this case.

[32] The approach to evidence under Manitoba’s Wills Act, R.S.M. 1988, c. W-150 was summarized by Philp, J.A. in Langseth Estate v. Gardiner (1990), 75 D.L.R. (4th) 25 at 33 (Man. C.A.)

The general rule that extrinsic evidence is not admissible in construing a will (the function of a court of construction) does not apply to the probate court whose duty is to determine whether a document is a valid will. Extrinsic evidence is admissible on the question of testamentary intent, and the Court is not limited to the evidence that an inspection of the document provides.

Testamentary Intent

[33] The s. 58 curative provision was well summarized in Estate of Young, 2015 BCSC 182 [Young]. This provision is one of WESA‘s “most far-reaching remedial provisions”, and it represents a marked departure from the traditional, formalistic approach to the creation of wills (at para. 16). It confers the court with a broad discretion to treat a testamentary record as valid even if it does not comply with the formalities of the statute. However, this provision can only be used to cure errors concerning formalities, and cannot cure substantive errors such as testamentary incapacity or undue influence (at para. 17).

[34] To apply s. 58, the applicant must prove on the balance of probabilities that the record at issue is authentic and that it represents the testamentary intentions of the will-maker: Young at paras. 19, 36; and Bunn Estate (Re) (1992) 100 Sask. R. 231 at 237 (C.A.) [Bunn Estate]. This analysis asks whether the court is satisfied that the document records the will-maker’s deliberate or fixed and final expression of intention as to the disposal of her property upon death. This was summarized in Young as follows:

[34] As is apparent from the foregoing, a determination of whether to exercise the court’s curative power with respect to a non-compliant document is inevitably and intensely fact-sensitive. Two principal issues for consideration emerge from the post-1995 Manitoba authorities. The first in an obvious threshold issue: is the document authentic? The second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions, as that concept was explained in George.

[35] In George the court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.

[Emphasis added.]

55      The question, then, is whether the gift expresses the testamentary intentions of Mr. Bach, despite the fact that the will was witnessed by the spouse of Sharon Thibodeau. Extrinsic evidence is admissible.

56      Here, there is the evidence from Ms. Veres: she deposed that when she visited Mr. Bach in August, 2014, he made no mention of intending to change his will. He was frustrated in his efforts to sell the house and said to her in this regard: “you would just have to deal with selling the house yourself”.

57      I note that if a person chooses to exclude a relative from her or his will, it is human not to mention it. The statement he apparently made, however, implies that he was not intending to change his will.

58      But the evidence to the contrary is overwhelming. First, Ms. Thibodeau deposed that on July 17, 2014 the deceased told her that he intended to change his will.

59      Her affidavit goes on:

  1. We were sitting in Terry’s house, and Terry started a conversation with me and said he was going to change his Will, and that he wanted to leave everything to me, including his house. He said that I had always been there for him, and I had been so good to him all his life. He said that he did not know what he would have done without me. Terry said, “why should Jamie have my house?”, and that he had worked hard for it.
  2. Terry stated that Jamie [Veres] has a farm and all that land, she doesn’t need it. He further stated that Jamie had always told him that she did not want the house.
  3. Terry told me he was going to call Jamie and let her let her know that he was going to change his Will. I have no knowledge as to whether Terry told Jamie that he intended to change his Will or not; I never questioned him about that at any time.

60      Furthermore, as outlined above, Mr. Bach advised his friend Wendy Boyes that he was leaving all of his estate to his sister Sharon. He told her that on August 9, 2014. On September 2, 2014 he told his sister, Diane Vanderburg, that he wished to leave all of his estate to Ms. Thibodeau.

61      Dr. Willms’ evidence in this regard is significant as well. She deposed that a document expressing Mr. Bach’s intention to leave his estate to his sister was signed. She said that it was read aloud to him and that he stated that he agreed with the contents of the document and that he understood that the document was intended to indicate his wishes for the estate.

62      Finally, there is the evidence of the last 24 hours of Mr. Bach’s life. The deceased had asked Ms. Thibodeau and her husband to take him to a notary for the purpose of making a new will and making other final arrangements. That included signing a power of attorney appointing Ms. Thibodeau as his attorney.

63      On all the evidence, I am satisfied that the document executed on September 9, 2014 amounts to a will and represents Mr. Bach’s testamentary intent. The gift is not void.

64      The application is therefore allowed.

Spoliation of Evidence

Spoliation of Evidence

Spoliation of evidence is the intentional destruction of relevant evidence when litigation exists or is pending.

There are few cases on the issue in Canada but it does occur on occasion.

In Holland ( Guardian ad litem) v Marshall 2008 BCCA 468 the appeal court stated re a medical malpractice suit where it was alleged hospital records had been deliberately destroyed:

55      Justice Brooke stated his understanding of the law of spoliation of evidence based on four case authorities to which he was referred by counsel for the respondents. The following is a summary of what was stated:

1. A rebuttable evidentiary presumption arises where evidence of spoliation exists; the doctrine of spoliation is an evidentiary rule raising a presumption and not an independent tort giving rise to a cause of action (St. Louis v. R. (1896), 25 S.C.R. 649 (S.C.C.)).

2. In an appropriate case, destruction of documents carries a procedural but not substantive remedy, an action for damages cannot be sustained solely on the ground that documents have been destroyed (Endean v. Canadian Red Cross Society (1998), 48 B.C.L.R. (3d) 90 (B.C. C.A.)).

3. Spoliation requires four elements in evidence: a) the evidence has been destroyed; b) the evidence destroyed was relevant to an issue in the lawsuit; c) legal proceedings were pending; and d) the destruction of documents was an intentional act indicative of fraud, or an intention to suppress the truth (Dyk v. Protec Automotive Repairs Ltd. (1997), 41 B.C.L.R. (3d) 197 (B.C. S.C.)).

4. There is no common law duty of care to preserve property which may possibly be required for evidentiary purposes; such an obligation can only be imposed by court order granted pursuant to the Rules of Court (Dawes v. Jajcaj, 1999 BCCA 237, 66 B.C.L.R. (3d) 31 (B.C. C.A.), aff’g (1995), 15 B.C.L.R. (3d) 240 (B.C. S.C.), leave to appeal ref’d (2000), [1999] S.C.C.A. No. 347 (S.C.C.)).

56      Justice Brooke accepted the evidence presented by the Hospital that Ms. Holland’s records were destroyed in accordance with its policy in place at the time and not for the purpose of suppressing evidence. He concluded there was no evidentiary foundation for Ms. Holland’s assertion of spoliation on the part of the defendant physicians or the Hospital. In that regard, Brooke J. said:

In Gray v McNeil 2016 ABQB 645 the court found evidence of spoliation had been rebutted by corroborative evidence:

A mother had contents of the deceased’s laptop computer erased days before examination for discovery, and her actions in erasing laptop computer amounted to spoliation .

Counsel for both parties agreed that the  laptop would be examined, and the mother engaged in deliberate act to destroy evidence so it was not available for ongoing legal proceedings.

The mother did not merely wipe out evidence of deceased’s private life, but also evidence that could prove or disprove whether and when 2011 will was created on laptop.

Spoliation created presumption that evidence on computer would have been unfavourable to mother, but the presumption was rebutted by other evidence that corroborated mother’s evidence. 

Spoliation, which is the intentional destruction of relevant evidence when litigation exists or is pending: McDougall v. Black & Decker Canada Inc., 2008 ABCA 353, 440 A.R. 253 (Alta. C.A.), at para 29. The spoliation of relevant evidence is a serious matter. As was noted in Doust v. Schatz, 2002 SKCA 129, 227 Sask. R. 1 (Sask. C.A.), at para 27 “[t]he integrity of the administration of justice in both civil and criminal matters depends in a large part on the honesty of parties and witnesses. . . . A party is under a duty to preserve what he knows, or reasonably should know, is relevant in an action….”

124      The principle remedy for spoliation is the imposition of a rebuttable presumption that the evidence which was destroyed would not have assisted the spoliator. The presumption can be rebutted by evidence showing the spoliator did not intend, by destroying the evidence, to affect the litigation, or by other evidence that proves her case, McDougall at para 18:

. . . Spoliation in law does not occur merely because evidence has been destroyed. Rather, it occurs where a party has intentionally destroyed evidence relevant to ongoing or contemplated litigation in circumstances where a reasonable inference can be drawn that the evidence was destroyed to affect the litigation. Once this is demonstrated, a presumption arises that the evidence would have been unfavourable to the party destroying it. This presumption is rebuttable by other evidence through which the alleged spoliator proves that his actions, although intentional, were not aimed at affecting the litigation, or through which the party either proves his case or repels the case against him.