Executor Trustee Removed For Delay

Executor Trustee Removed For Delay

Re Collett Estate 2017 BCSC 473 is the most recent of a judicial trend to remove an executor trustee for delay in the distribution and finalization of an estate.

In Collett the deceased died in 2008 and was removed as a result of the inordinate delay in finalizing a simple estate in a timely manner.

In Dirnberger Estate, 2016 BCSC 439, this Court wrote as follows in deciding to remove an executor as a result of his delays:

[13] The duty of an executor is to settle the affairs of the deceased and to distribute the estate in accordance with the terms of the will in a timely manner. Mr. Chase has failed to do this.

[14] I have concluded that Mr. Chase must be removed as trustee. I have reached this conclusion for two reasons. His actions demonstrate that he lacks the necessary capacity to act as trustee. . . . There is as well a want of reasonable fidelity.

[15] With regards to the first reason, this is a simple estate that has not been distributed more than four years after probate.

[16] In Levi-Bandel v. McKeen, 2011 BCSC 247, Justice Butler stated at paras. 21 and 23:

[21] . . . it is not only an act of misconduct that can be grounds for removal of a trustee. A failure to act can amount to grounds for removal . . . .

. . .

[23] . . . I have little difficulty in concluding that [the executor’s] inaction and her intransigence caused unnecessary delay. Her refusal or reluctance to proceed with the administration of the estate amounts to a want of reasonable fidelity and a failure to carry out her duties.

 Justice Butler further stated:

19      The test for removal of an executrix or trustee is not contentious. The leading authority in British Columbia remains the decision in Conroy v. Stokes, [1952] 4 D.L.R. 124 (B.C. C.A.). In Conroy, the Court of Appeal considered whether it was expedient to remove one trustee and appoint a replacement when some of the beneficiaries were dissatisfied with the way the trustee was handling the estate. The court confirmed at 126-127 that the main test for removal of a trustee is the welfare of the beneficiaries:

In Letterstedt v. Broers (1884), 9 App. Cas. 371, their Lordships of the Judicial Committee held that the main principle upon which the jurisdiction of Courts of Equity has been exercised to remove old trustees and substitute new ones in cases requiring such a remedy, is the welfare of the beneficiaries of the trust estate. 

20      In Letterstedt v. Broers [(1884), L.R. 9 App. Cas. 371 (South Africa P.C.)], the court noted that it is not every act of misconduct that should result in removal of a trustee, only acts or omissions which endanger the trust property or show “a want of honesty or a want of proper capacity to execute the duties, or a want of reasonable fidelity.”

21      However, it is not only an act of misconduct that can be grounds for removal of a trustee. A failure to act can amount to grounds for removal. In Scott v. Scott, [1991] 5 W.W.R. 185 (Sask. Q.B.), Baynton, J. relied on the inherent jurisdiction of the Saskatchewan Court of Queen’s Bench to remove a trustee where the actions of one trustee in refusing to sign cheques or provide an accounting produced a stalemate amongst the trustees. His refusal was motivated by his wish to be compensated by the trust for caring for one of the principals of the trust. He refused to sign cheques or provide the accounting until he was paid. The court found that the trustee’s deliberate failure to act placed him in breach of his fiduciary duties to the beneficiaries of the trust.

Security For Costs of Trial and Appeal

Security For Costs of Trial and Appeal

Arbutus Bay Estates Ltd v Canada ( A-G) 2017 BCCA 133 dealt with the law for security for costs for both an appeal as well as  trial that lasted 18 days and was appealed.

Security for costs was awarded in the amount of $50,000 for the trial and an additional $5000 for the appeal, and the appeal was ordered stayed until the funds were posted as security.

The Test for Security for Costs of an Appeal

[16]         The applicable principles for security for costs of appeal differ from those for security for costs of trial. The former is more readily ordered as the onus is on the appellant to demonstrate why it should not be granted. The latter is less frequently ordered as the onus is on the respondent to demonstrate why it should be granted. See Thompson v. Soundy, 2003 BCCA 82 at para. 11; and Siekham v. Hiebert, 2008 BCCA 299 at para. 13. The distinction between the two orders is relevant only to Canada’s motion.

Security for Costs of the Appeal

[17]         The appellant against whom security is sought bears the onus of showing why security should not be required: Creative Salmon Company Ltd. v. Staniford, 2007 BCCA 285 at para. 9. The ultimate question is whether the order would be in the interests of justice: Lu v. Mao, 2006 BCCA 560 at para. 6. The following relevant considerations were set out in Lu at para. 6:

(a) the appellant’s financial means;

(b) the merits of the appeal;

(c) the timeliness of the application; and

(d) whether the costs will be readily recoverable.

[18]         The appellant’s financial position is the principal basis on which an order for some, all, or none of the security for appeal costs is made. See Zen v. M.R.S. Trust Company (1997), 88 B.C.A.C. 198 at para. 18. It is a discretionary order. Courts have also distinguished between corporate and individual plaintiffs, generally treating corporate plaintiffs with less flexibility.

Security for Trial Costs

[19]         The principles governing the exercise of discretion in awarding security for trial costs are set out in Fat Mel’s Restaurant Ltd. v. Canadian Northern Shield Insurance Company (1993), 76 B.C.L.R. (2d) 231 (C.A.); and Kropp v. Swanaset Bay Golf Course Ltd. (1997), 29 B.C.L.R. (3d) 252 (C.A). They include:

(a)      The onus is on the applicant to show that it is in the interest of justice to order posting for security of trial costs;

(b)      The applicant must show prejudice if the order is not made; and

(c)      In determining the interests of justice the chambers judge should consider the merits of the appeal and the effect of such an order on the ability of the appellant to continue the appeal. See Bronson v. Hewitt, 2012 BCCA 268 at para. 13.

[20]         In general, an applicant requesting an order for security for trial costs should have its draft bill of costs assessed as “judicial economy militates against a two-step process”: International Hi-Tech Industries Inc. v. FANUC Robotics Canada Ltd., 2007 BCCA 272 at para. 4. However, this practice can be waived if it is in the interests of justice to do so: Leung v. Yung, 2016 BCCA 64 at paras. 36 and 38.

Stay of Proceedings

Stay of Proceedings

Gerritse v Hospital For Sick Children 2017 ONSC 1859 dealt with an application for a stay of proceedings in one court case until the paternity issue in another case was firstly decided.

The Court refused the application and cited the law as previously set out in Leung Estate v Leung 2004 CarswellOnt 1366.

[20] The law is well-settled as to what is required for a stay to be granted in this type of situation. Special circumstances are required. This must be viewed as one of the clearest of cases.

Two conditions must be met, both of which the moving parties have responsibility to demonstrate on a balance of probabilities:

(i) that continuance of the Application would work an injustice because it would be oppressive or vexatious or would amount to an abuse of process, and

(ii) the stay would not cause an injustice to the Applicants. Leung Estate v. Leung, 2004 CarswellOnt 1366 (S.C.J.), at paragraph 28, citing the decision of Justice Blair, as His Honour then was, in Canadian Express Ltd. v. Blair (1992), 11 O.R. (3d) 221 (Gen. Div.). 

Leung Estate v Leung stated:

28      In Canadian Express Ltd. v. Blair (1992), 11 O.R. (3d) 221 (Ont. Gen. Div.), Mr. Justice Blair set out the general principles that have been followed by the Court in this regard. Firstly, a stay should only be ordered when special circumstances are shown to exist. It will only be ordered in the clearest of cases. In quoting from McNair J. in Varnam v. Canada (Minister of National Health & Welfare) (1987), 12 F.T.R. 34 (Fed. T.D.), at p. 36 of that decision, Mr. Justice Blair quotes the following:

In order to justify a stay of proceedings two conditions must be met, one positive and the other negative: (1) the defendant must satisfy the court that the continuance of the action would work an injustice because it would be oppressive or vexatious to him or would be an abuse of the process of the court in some other way; and (b) the stay must not cause an injustice to the plaintiff. On both the burden of proof is on the defendant. Expense and inconvenience to a party or the prospect of the proceedings being abortive in the event of a successful appeal are not sufficient special circumstances in themselves for the granting of a stay.

Frivolous Vexatious Litigants

Shutting Down the Frivolous Vexatious Litigant

Canada v. Olumide 2017 FCA 42 set out a road map on how to rid the court’s back log of the frivolous and vexatious litigant, albeit with ” dignity and respect.”

The Federal Court relied upon s 40 of the Federal Court act but most provinces have similar provisions including British Columbia to limit litigants found to be vexatious to having to obtain leave from the court before bringing further court action(s).

When faced with what appears to be a frivilous vexatious litigant, usually acting on his or her own without counsel, strongly consider bringing an application to the court for such an order.

The decision stresses that the courts are community property that exist to serve everyone and should not be commandeered in a damaging way to advance the interests of one.

A single vexatious litigant can gobble up scarce judicial  and registry resources and injure other innocent litigants awaiting to have their cases adjudicated.

Like all statutory provisions, section 40 must be interpreted in accordance with its text, context and purpose: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27; 154 D.L.R. (4th) 193; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 (CanLII), [2002] 2 S.C.R. 559. Further, we must give section 40 “such fair, large and liberal construction and interpretation as best ensures the attainment of its objects”: Interpretation Act, R.S.C. 1985, c. I-21, s. 12.

[16]           Section 40 is similar to the vexatious litigant provisions that are found in the statutes governing courts in other jurisdictions. Thus, much of their case law assists. An excellent summary of some of it appears in Canada v. Olympia Interiors Ltd., 2001 FCT 859 (CanLII), 209 F.T.R. 182, aff’d, 2004 FCA 195 (CanLII), 323 N.R. 191. The Federal Court’s discussion in Olumide v. Canada, 2016 FC 1106 (CanLII) is also useful.

[17]           Section 40 reflects the fact that the Federal Courts are community property that exists to serve everyone, not a private resource that can commandeered in damaging ways to advance the interests of one.

[18]           As community property, courts allow unrestricted access by default: anyone with standing can start a proceeding. But those who misuse unrestricted access in a damaging way must be restrained. In this way, courts are no different from other community properties like public parks, libraries, community halls and museums.

[19]           The Federal Courts have finite resources that cannot be squandered. Every moment devoted to a vexatious litigant is a moment unavailable to a deserving litigant. The unrestricted access to courts by those whose access should be restricted affects the access of others who need and deserve it. Inaction on the former damages the latter.

[20]           This isn’t just a zero-sum game where a single vexatious litigant injures a single innocent litigant. A single vexatious litigant gobbles up scarce judicial and registry resources, injuring tens or more innocent litigants. The injury shows itself in many ways: to name a few, a reduced ability on the part of the registry to assist well-intentioned but needy self-represented litigants, a reduced ability of the court to manage proceedings needing management, and delays for all litigants in getting hearings, directions, orders, judgments and reasons.

[21]           On occasion, innocent parties, some of whom have few resources, find themselves on the receiving end of unmeritorious proceedings brought by a vexatious litigant. They may be hurt most of all. True, the proceedings most likely will be struck on a motion, but probably only after the vexatious litigant brings multiple motions within the motion and even other motions too. In the meantime, the innocent party might be dragged before other courts in new proceedings, with even more motions, and motions within motions, and maybe even more.

[22]           Section 40 is aimed at litigants who bring one or more proceedings that, whether intended or not, further improper purposes, such as inflicting damage or wreaking retribution upon the parties or the Court. Section 40 is also aimed at ungovernable litigants: those who flout procedural rules, ignore orders and directions of the Court, and relitigate previously-decided proceedings and motions.

[23]           Section 40 exists alongside other express, implied or necessarily incidental powers the Federal Courts have to regulate litigants and their proceedings. These are found in the Federal Courts Act and the Federal Courts Rules, SOR/86-106. Other powers emanate from the Federal Courts’ plenary jurisdiction to regulate their proceedings: Canada (Human Rights Commission) v. Canadian Liberty Net, 1998 CanLII 818 (SCC), [1998] 1 S.C.R. 626; 157 D.L.R. (4th) 385. All of these powers are specific to particular proceedings before the Courts.

[24]           This sheds light on the role of section 40. Where a litigant’s misbehaviour is specific to a particular proceeding and isolated in its harm and unlikely to be repeated, the usual powers to regulate litigants and their proceedings will suffice. But where a litigant’s misbehaviour is likely to recur in multiple proceedings or actually recurs in later proceedings and where the purposes of section 40 are implicated by the nature or quality of the litigant’s conduct, section 40 remedies become live.

[25]           A litigant’s misbehaviour in just a single proceeding can result in section 40 remedies. The express text of section 40 makes this clear: it provides that where a party “has conducted a [single] proceeding in a vexatious manner,” the Court “may order that no further proceedings be instituted by the person in that court”: Campbell v. Canada, 2005 FCA 49 (CanLII) at para. 19.

[26]           On occasion, some courts, including this Court, have characterized section 40 as being a drastic, last-resort option. It has been called a “most extraordinary” power that “must be exercised sparingly and with the greatest of care” because an individual is “entitled to access the courts”: Olympia Interiors (F.C.A.), above at para. 6.

[27]           But in characterizing section 40, care must be taken not to exaggerate it. A declaration that a litigant is vexatious does not bar the litigant’s access to the courts. Rather, it only regulates the litigant’s access to the courts: the litigant need only get leave before starting or continuing a proceeding.

[28]           In 2000, our Court put this well:

An order under subsection 40(1) does not put an end to a legal claim or the right to pursue a legal claim. Subsection 40(1) applies only to litigants who have used unrestricted access to the courts in a manner that is vexatious (as that term is understood in law), and the only legal effect of any order under subsection 40(1) is to ensure that the claims of such litigants are pursued in an orderly fashion, under a greater degree of Court supervision than applies to other litigants.

(Canada (Attorney General) v. Mishra, [2000] F.C.A. no 1734, 101 A.C.W.S. (3d) 72.)

[29]           Seen in this way, section 40 is not so drastic. A litigant can still access the courts by bringing a proceeding but only if the Court grants leave. Faced with a request for leave, the Court must act judicially and promptly, considering the legal standards, the evidence filed in support of the granting of leave, and the purposes of section 40. The Court could well grant leave to a vexatious litigant who has a bona fide reason to assert a claim that is not frivolous and vexatious within the meaning of the case law on pleadings.

[30]           What is “vexatious” for the purposes of section 40?

[31]           Vexatiousness is a concept that draws its meaning mainly from the purposes of section 40. Where regulation of the litigant’s continued access to the courts under section 40 is supported by the purposes of section 40, relief should be granted. Put another way, where continued unrestricted access of a litigant to the courts undermines the purposes of section 40, relief should be granted. In my view, all of this Court’s cases on section 40 are consistent with this principle.

[32]           In defining “vexatious,” it is best not to be precise. Vexatiousness comes in all shapes and sizes. Sometimes it is the number of meritless proceedings and motions or the reassertion of proceedings and motions that have already been determined. Sometimes it is the litigant’s purpose, often revealed by the parties sued, the nature of the allegations against them and the language used. Sometimes it is the manner in which proceedings and motions are prosecuted, such as multiple, needless filings, prolix, incomprehensible or intemperate affidavits and submissions, and the harassment or victimization of opposing parties.

[33]           Many vexatious litigants pursue unacceptable purposes and litigate to cause harm. But some are different: some have good intentions and mean no harm. Nevertheless, they too can be declared vexatious if they litigate in a way that implicates section 40’s purposes: see, e.g., Olympia Interiors (F.C. and F.C.A.), above.

[34]           Some cases identify certain “hallmarks” of vexatious litigants or certain badges of vexatiousness: see, for example, Olumide v. Canada, 2016 FC 1106 (CanLII) at paras. 9-10, where the Federal Court granted relief under section 40 against the respondent; and see paragraph 32 above. As long as the purposes of section 40 are kept front of mind and the hallmarks or badges are taken only as non-binding indicia of vexatiousness, they can be quite useful.

[35]           A word of two needs to be said about proving vexatiousness. Often the record offered in support of section 40 applications is laborious to assemble and voluminous to present. It needn’t always be so.

[36]           Again, the issue is whether the litigant should be subject to an additional level of regulation, not whether the litigant’s access to court should be forever barred. This invites focused, well-chosen evidence, not an encyclopedia of every last detail about the litigant’s litigation history. In some cases, the requirement of vexatiousness can be proven by an affidavit that provides only the most relevant information, court decisions that describe the litigant’s intentions and conduct, and selected pleadings and documents that demonstrate vexatiousness.

[37]           Some prosecuting these applications forget that other courts’ findings of vexatiousness under similarly-worded provisions can be imported into later applications against the same litigant and can be given much weight: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (CanLII), [2003] 3 S.C.R. 77. The wheel needn’t be reinvented.

[38]           Even where other courts have declared the respondent to be a vexatious litigant, the applicant must file evidence of the respondent’s vexatious behaviour in this Court bearing in mind the comments in paragraph 36, above. As a legal matter, the applicant bears the legal burden of proving vexatiousness on the balance of probabilities. But as a practical matter, due to the weight that can attach to other courts’ findings, a respondent might have to offer highly credible evidence in order to resist the application.

[39]           Finally, a few words about the reasons for judgment in vexatious litigant applications. In matters such as this, sometimes reasons for judgment describe litigants, their conduct, and their attitudes in lurid ways that might amuse the more sophomoric among us. Happily, I have never seen that approach taken in the Federal Courts. There, the reasons have been restrained and appropriate, clinical in tone and minimalist in approach. This is as it should be. Courts should treat all litigants—even vexatious ones—with dignity and respect. To the court, the litigant may deserve to be declared a vexatious litigant. But to others, the litigant may be an employee or volunteer, a friend or acquaintance, an aunt or uncle, a parent or child—and a good one too. No one deserves to be tarred and feathered and paraded through the town square, least of all by courts.

[40]           Often little need be said in support of a finding of vexatiousness: see the summary of law on adequacy of reasons in Canada v. Long Plain First Nation, 2015 FCA 177 (CanLII), 388 D.L.R. (4th) 209 at para. 143, citing R. v. R.E.M., 2008 SCC 51 (CanLII), [2008] 3 S.C.R. 3; R. v. Dinardo, 2008 SCC 24 (CanLII), [2008] 1 S.C.R. 788; R. v. Walker, 2008 SCC 34 (CanLII), [2008] 2 S.C.R. 245; R. v. Sheppard, 2002 SCC 26 (CanLII), [2002] 1 S.C.R. 869; Hill v. Hamilton-Wentworth Police Services Board, 2007 SCC 41 (CanLII), [2007] 3 S.C.R. 129. In assessing adequacy, appellate courts review the reasons offered against the record and the submissions made: R.E.M. at paras. 35 and 55. If the record contains detail, the reasons need only summarize or say a few things. Frequently in cases such as these, less is more.

Court May Hear Additional Evidence Before Entry of Order

Court May Hear Additional Evidence Before Entry of Order

Clayton v British American Securities Ltd ( 1934) 3 WWR 257 ( BCCA) upheld  the discretionary  power of a trial judge to hear additional evidence after judgement was pronounced but before the order was entered .

At the close of a trial judgment was reserved and after the lapse of some months the Judge pronounced judgment in favour of the plaintiff in accordance with written reasons then handed down.

The judgment so pronounced not having been entered, the defendant company moved for and obtained an order permitting it to adduce further evidence. The action was one brought by the beneficiaries of the estate of a deceased against the trustees for a declaration of breaches of trust and for damages thereby suffered. The paramount issue resulted from an allegation of fraudulent concealment and it was with respect to this issue that the leave to adduce further evidence was given. The plaintiffs appealed.

The BC Court of Appeal held  that the matter was one within the discretion of the trial Judge, that the discretion had been properly exercised and therefore that the appeal should be dismissed

(Stevenson v. Dandy, [1918] 3 W.W.R. 662 [Alta.] discussed; Baden-Powell v. Wilson, [1894] W.N. 146 , applied).

The matter was wholly within the jurisdiction of the trial Judge; he was and still is seized of the case, and for this Court to reverse his order would be an usurpation of his functions and powers (see McPhee v. E. & N. Ry., 49 S.C.R. 43, 5 W.W.R. 926 ); it is only after final judgment and due entry thereof that this Court has jurisdiction; it is the unquestioned practice, of very long standing, that until a judgment or order is entered it cannot be said to be beyond reconsideration or recall (see Kimpton v. McKay, 4 B.C.R. 196 ; Firm of M.R.M.V.L. v. Firm of R.M.K.R.M., [1926] 3 W.W.R. 144 , at 152-3 [P.C.]; Paper Machinery Ltd. v. Ross Engineering Co., [1934] S.C.R. 186 , at 188; SS. “Hontestroom” v. SS. “Sagaporack”, [1927] A.C. 37 , at 47-8, 95 L.J.P.C. 153 ).

It is a salutary rule to leave unfettered discretion to the trial Judge to resume the hearing of an action until entry of judgment and to rely upon his trained experience to prevent abuse, the fundamental consideration being that a miscarriage of justice does not occur. There are reasons for rules governing the admission of evidence by an appellate Court, not applicable to a trial Judge. Entry of judgment may be merely a formality but it is necessary that at some arbitrary point the jurisdiction of the trial Judge should end. A vested right to a judgment is then obtained subject to a right to appeal and should not be lightly jeopardized. Before the gate is closed by entry a trial Judge is in a better position to exercise discretion apart from rules than an appellate Court (In re St. Nazaire Co., 12 Ch. D. 88, 41 L.T. 110 ; In re Australian Direct Steam Naviga tion; Miller’s Case, 3 Ch. D. 661 ; Baden-Powell v. Wilson, supra ; and Stevenson. v. Dandy, supra , referred to). Although the rules in Chancery and principles then adhered to still apply, the point arises as to the proper distribution of these rules and principles after the reorganization of the Courts by Judicature Acts. Where must they now be given effect to — in the trial Court or the Court of Appeal? Rules as to diligence, etc., in respect to new evidence applied on the hearing of bills of review in Chancery are now exercised by our Court of Appeal. My conclusion therefore is that before entry of judgment the trial Judge has power to reopen the trial unfettered by the rules referred to and that the appellate Court cannot review that discretion. If however the proper view is that Brown v. Dean [1910] A.C. 373, 79 L.J.K.B. 690 , is applicable, the situation in question, which is unique, is one in which the undoubted lack of diligence should be excused.

 As to the power of the learned trial Judge to make the order complained of, I am of the opinion that the decision in BadenPowell v. Wilson, [1894] W.N. 146 , should be followed although it appears there was in that case no opposition to the order for fresh evidence. In delivering the judgment Kekewich, J. made use of the following words which I think are applicable here:

As the order has not yet been drawn up, I have no doubt I may rehear the case. If there are material facts which were not brought to my attention at the trial, then I ought to hear them.

Parens Patriae Jurisdiction of the Courts

Parens Patriae Jurisdiction of the Courts

Re Senini 2016 BCSC 2299 invoked the  the parens patriae  jurisdiction of the courts to declare an adult no  longer incapable of handling her affairs.

The parens patriae jurisdiction is  founded on necessity, namely the need for the courts to act for the protection of those who cannot care for themselves. It is the power of the courts to act as the guardian for those who are unable to care for themselves such as children or disabled individuals.

The court found  a gap in the legislation of the Adult Guardianship act that occurred after a declaration of incapability was rescinded from the Public Guardian and Trustee in favor of the sister of the patient as her private committee. The latter declaration did not include a declaration of incapability.

The court found that under section 37(3) and (4) of the said act, a certificate of incapability is canceled when a private committee is appointed under that act.

If the adult has not been declared to be incapable, the adult becomes capable and there is no determination of incapability for the court to reject and no statutory guardianship for the court to end.

The court bus invoked its exercise of parens patriae jurisdiction to declare the adult no longer incapable. 

[28]         There is a gap in the legislation for declaring an adult to no longer be incapable in circumstances where the adult is declared incapable under a Certificate of Incapability (s. 32, AGA), the Certificate of Incapability is cancelled by the Court appointing a private committee under the PPA (ss. 37(3)(d) and 37(4), AGA) without at the same time declaring the adult incapable, and then the adult becomes capable.

[29]         With the Certificate of Incapability being cancelled by operation of the legislation, there is no determination of incapability for the Court to reject and no statutory property guardianship for the Court to end, under s. 35(4)(b) of the AGA, and declaring a person to no longer being incapable is not one of the declarations it is open to the Court to make under s. 35 of the AGA.

[30]         In such circumstances it would be appropriate for the Court to exercise its parens patriae jurisdiction to declare the adult no longer incapable.  If it were otherwise, there would be no other mechanism for the individual to receive confirmation of his or her capacity.

[31]         An appeal to the parens patriae jurisdiction of the Court is the equivalent of an appeal to its inherent jurisdiction; namely, a jurisdiction which can be exercised when no rule or statute explicitly confers jurisdiction.

[32]         The parens patriae jurisdiction of the Court is often invoked and exercised in matters involving the welfare of minors.  However, the jurisdiction has frequently been exercised in respect of a person incapable by reason of mental incapacity of acting in his or her own interests.  It is frequently invoked where consent to a medical procedure in respect of a mentally impaired person is required.

[33]         The leading case is E. v. Eve, [1986] 2 S.C.R. 388, in which the Court was asked for an order authorizing a non-therapeutic sterilization of a mentally impaired adult daughter by her parent.  The issue was whether the Court had jurisdiction to grant consent, and if so, whether the authority flowed from the parens patriae power.

[34]         The historical origin of the jurisdiction is set out in paras. 31 to 55 of that judgment.  The headnote to the case summarizes the passages found at paras. 72 to 77 of that judgment and I adopt that headnote as an accurate summary of the nature of the jurisdiction, and the manner in which it should be exercised.

[35]         In the most recent citation of the case in a British Columbia court, namely Forliti v. Forliti, 2016 BCSC 743, Skolrood J. held at para. 306 that his authority to impose conditions and restrictions upon the rights, privileges or powers of a committee was to be found in s. 16 of the PPA.  But he also said, “In the alternative, if s. 16 is not broad enough to authorize these conditions and restrictions, I would invoke my parens patriae jurisdiction to include such provisions in the committeeship scheme pursuant to a legislative gap.”  I agree this alternative approach was available.

[36]         It is thus appropriate for the Court to exercise its parens patriae jurisdiction in the unique circumstances of this particular case.  In doing so, the Court notes that similar to s. 4 of the PPA, the affidavits of two medical practitioners setting out their opinion that the person is no longer incapable should be presented to the Court for consideration in the exercise of its parens patriae jurisdiction

The headnote of the E v Eve decision of the Supreme Court of Canada ( 1986) 2 SCR 388 states: 

The parens patriae jurisdiction. From the earliest time, the sovereign, as parens patriae, was vested with the care of the mentally incompetent. This right and duty, as Lord Eldon noted in Wellesley v. Duke of Beaufort [(1827), 2 Russ. 1, 38 E.R. 236] . . . at 243 is founded on the obvious necessity that the law should place somewhere the care of persons who are not able to take care of themselves. In early England, the parens patriae jurisdiction was confined to mental incompetents, but its rationale is obviously applicable to children and, following the transfer of that jurisdiction to the Lord Chancellor in the 17th century, he extended it to children under wardship, and it is in this context that the bulk of the modern cases on the subject arise. The parens patriae jurisdiction was later vested in the provincial superior courts of this country, and in particular, those of Prince Edward Island.

The parens patriae jurisdiction is . . . founded on necessity, namely the need to act for the protection of those who cannot care for themselves. The courts have frequently stated that it is to be exercised in the “best interest” of the protected person, or again, for his or her “benefit” or “welfare”.

The situations under which it can be exercised are legion; the jurisdiction cannot be defined in that sense. As Lord MacDermott put it in J. v. C., [1970] A.C. 668, at 703, the authorities are not consistent and there are many twists and turns, but they have inexorably “moved towards a broader discretion, under the impact of changing social conditions and the weight of opinion . . . ” In other words, the categories under which the jurisdiction can be exercised are never closed. Thus I agree with Latey J. in Re X [(a minor), [1975] 1 All E.R. 697] . . . at 699, that the jurisdiction is of a very broad nature, and that it can be invoked in such matters as custody, protection of property, health problems, religious upbringing and protection against harmful associations. This list, as he notes, is not exhaustive.

What is more, as the passage from Chambers cited by Latey J. underlines, a court may act not only on the ground that injury to person or property has occurred, but also on the ground that such injury is apprehended. I might add that the jurisdiction is a carefully guarded one. The courts will not readily assume that it has been removed by legislation where a necessity arises to protect a person who cannot protect himself.

. . . the jurisdiction may be used to authorize the performance of a surgical operation that is necessary to the health of a person, as indeed it already has been in Great Britain and this country. And by health, I mean mental as well as physical health. In the United States, the courts have used the parens patriae jurisdiction on behalf of a mentally incompetent to authorize chemotherapy and amputation, and . . . in a proper case our courts should do the same. Many of these instances are related in Strunk v. Strunk, 445 S.W. 2d 145, where the court went to the length of permitting a kidney transplant between brothers. Whether the courts in this country should go that far, or as in [Matter of Quinlan, Re 355 A. 2d 647 (N.J. S.C., 1976)] . . . permit the removal of life-sustaining equipment, I leave to later disposition.

Pleading Particulars of Undue Influence

Pleading Particulars of Undue Influence

Harder v Harder Estate 2017 BCSC 425 discusses the necessity of pleading particulars of allegations of undue influence  so that the defendant can meet the claim and not be taken by surprise at trial.

Particulars of Undue Influence

[15]        SCCR 3-7 (18) requires that full particulars of undue influence, with dates and items if applicable, must be stated in the pleading. The particulars are required to inform the other side of the nature of the case to be met, prevent the other side from being taken by surprise at trial, enable the other side to know what evidence they ought to prepare for trial, to limit the generality of the pleadings, and to tie the hands of the plaintiffs: Cansulex Ltd. v. Perry, [1982] B.C.J. No. 369 at para. 15. The particulars to be pled in a claim alleging undue influence have been discussed in Hopper v. Dunsmuir (No. 3), [1903] B.C.J. No. 55, Winn v. McKercher, [1956] B.C.J. No. 25, and more recently in Harrison v. Apperloo, 2016 BCSC 1129.

[16]        The defendants’ main complaint about the undue influence claim is that the plea covers a period of several years if not decades, and does not identify specific instances or even narrow time frames in which the influence occurred.

[17]        Having now had the opportunity to fully review the NOCC, I find that the plaintiffs have provided sufficient particulars of the allegations of undue influence in order to delineate the issues between the parties and allow the defendants to prepare for examinations for discovery and trial. The allegation of undue influence as pled does indeed cover a lengthy period, but the circumstances of that influence and even the acts themselves are described in the pleading. I note, furthermore, that the defendants have been able to deliver their response to the NOCC without having further particulars. The defendants have not demonstrated on a balance of probabilities that there is non-compliance with SCCR 3-7 (18).

Harrison v Aperloo 2016 BCSC 1129 stated in part:

[12]         The remaining purported pleas of undue influence are at least deficient. The language used indeed connotes legal conclusions rather than material facts upon proof of which a legal conclusion could be made. An example of a particularized plea of undue influence is disclosed in Longmuir v. Holland, 2000 BCCA 538 at para. 28:

[28]  …

10. The Plaintiff says that the 1991 Will is invalid for the following reasons:

…

(b)  and, or in the alternative, the execution of the will was procured by the undue influence of the Defendant Margaret Alice Holland. Particulars are as follows:

(i)  The Defendant Margaret Alice Holland was living with the Deceased in her home and had complete control over the Deceased’s person including her physical care and basic needs prior to and at the time of the execution of the 1991 Will;

(ii)  The weak physical and mental condition of the Deceased, her vulnerability and dependency upon Margaret Alice Holland prior to and at the time of the execution of the will rendered her susceptible to undue influence, which was in fact exercised;

[13]         The plaintiff says that the details or particulars of the undue influence claim will be fleshed out from the defendants through the discovery process. Aside from the fact that the plaintiff ought not to make pleas that have no known factual basis, authorities were offered which allow the plaintiff’s obligations under Rule 3-7(18) to await completion of the discovery process. The plaintiff can later add to or elaborate on the initial particulars, following the examinations: Rule 3-7 (20). Nevertheless, in order to identify the actual issues between the parties as well as permit the defendant to comply with the discovery obligations and prepare herself for an examination, it is expected that purported facts of undue influence have more than a generic quality to them. Without intending to do the plaintiff’s job for her, some particulars that might be offered are: How was the testator under the direction and control of the plaintiff? What position of trust and confidence did the defendant hold over the testator? When or how did the defendant coerce the testator? Guidance on the material facts to be pled and proven may also be found in Geffen v. Goodman Estate, [1991] 2 S.C.R. 353, an authority cited by the plaintiff.

Change of Venue of Trial

Change of Venue of Trial

Harder v Harder estate 2017 BCSC 425 discussed the law relating to changing the venue of trial or interlocutory proceedings from where the action was originally commenced to another city.

The defendants in Harder sought an order transferring the proceedings  from Victoria to the Vancouver registry for all purposes. As an alternative, the defendants ask that the proceeding remain in the Victoria registry but that all interlocutory applications and the eventual trial take place in Vancouver.

The plaintiffs live in Alberta, and the defendant Frances lives in Delta, B.C. According to the sworn evidence, any potential lay witnesses to the proceeding live in either Alberta or the Lower Mainland. The lawyers and financial advisors involved in the critical events described in the NOCC do business in the Lower Mainland. Some of the Vancouver-based lay witnesses are quadriplegic, with those individuals’ travel to Victoria, at least according to the defendant Frances, being a particularly arduous task. The two pieces of real property that the defendant Frances owned in joint tenancy with the deceased are both in the Lower Mainland.

The defendant Frances suffers from bi-polar disorder. She deposes that travelling to Victoria and being put in “new situations” will be psychologically challenging. She also describes the importance of her dog in managing the bi-polar disorder and her inability to bring the dog with her to Victoria for any trial 

THE LAW

18      As for the transfer of this proceeding, the defendants rely on McPhatter v. Thorimbert, [1966] B.C.J. No. 12 (S.C.), for the proposition that a change of venue may be ordered based on either the interests of justice or the preponderance of convenience.1 The plaintiffs have the right to control the course of the litigation, including the place of trial, with the defendant Frances having the burden of proving that serious prejudice will arise to her if the venue is not changed or the very great or overwhelming preponderance of convenience ousts the plaintiffs’ rights: Robertson v. Zimmer, 2001 BCSC 1067at paras. 3 and 4

Robertson v Zimmer stated:

“The law referable to the issues raised is not in dispute. The test to be applied was set out in McPhatter v. Thorimbert (1966), 56 W.W.R. 497 (1966), 56 W.W.R. 497 (B.C. S.C.), a decision of Kirke Smith, L.J.S.C., (as he then was), at page 497:

It is established by a line of decisions binding on me that the only two grounds for ordering a change of venue on the application of a defendant are those based upon: (a) The interests of justice; or (b) The preponderance of convenience.

It is to be noted that the conjunctive word in that passage is “or” and not “and”. At page 498, Smith, J. referred to Armstrong v. Revelstoke (City), [1927] 2 W.W.R. 245, 38 B.C.R. 253 (B.C. C.A.), Macdonald, C.J.A., at p. 246:

There is a preponderance of convenience in favour of a change of venue, but nothing short of a great or considerable preponderance of convenience and expense would justify the taking from the respondent the right which the law has given him to select his own place of trial. 

4      On the same page, Smith, J. referred to Charman v. British Columbia (Attorney General) (1956), 3 D.L.R. (2d) 269 (B.C. S.C.), at 271, where Whittaker, J. (later J.A.) cites with approval the following language of Boyd, C. in McDonald v. Dawson (1904), 8 O.L.R. 72 (Ont. H.C.):

The plaintiff, as dominus litis, has the right to control the course of litigation. He has the absolute right, unless in cases covered by the Rule, to choose the place of trial, subject to its being changed by the defendant for sufficient cause. The burden is on the defendant to make it appear that serious prejudice is likely to arise to him if it is not changed. Usually the question turns on the balance of convenience, based on number of witnesses, distance from the place of trial, and expenses of attendance. It then becomes a question of degree of less or more, and the test is variously expressed as to whether there is a great, or very great, or overwhelming preponderance of convenience shewn by the defendant which ousts the right of the plaintiff.

It is to be noted that the above passage, which comments on the burden on the defendant states “that serious prejudice is likely to arise to him if it is not changed”, (the emphasis is mine).”

19      While the evidence presented here is not as complete as that described in Robertson, I find that the defendants have proven that the great preponderance of convenience justifies an order that the trial in this proceeding be held in the Vancouver registry. The parties and all of the identified witnesses either reside in the Lower Mainland and/or can more easilty and less expensively travel to Vancouver rather than to Victoria to attend a trial. The plaintiffs’ bald assertion that Victoria is more convenient for both themselves and their witnesses is simply not supported by any evidence.

20      However, the defendants have not demonstrated that either the interests of justice or the great preponderance of convenience favour the transfer of the proceeding to the Vancouver registry for all purposes. Subject to an agreement or order otherwise, examinations for discovery will be held nearest to where the examinee resides: SCCR 7-2 (11). Interlocutory applications do not require a party’s attendance, unless cross-examination on a party’s affidavit is ordered; the court can always give directions in that situation to address any specific inconvenience. In any event, if successful at trial, the defendants will likely be compensated for their counsel’s travel costs to attend these types of applications.

Conflict of Law: “Ordinarily Resident”

Conflict of Law: "Ordinarily Resident"

Cresswell v Cresswell Estate 2017 BCSC 178 dealt with a conflict of law situation and held that the jurisdiction of the BC court should be denied for a wills variation action and held that it should properly be filed under Alberta court jurisdiction as the deceased was found to be “ordinarily resident ” there.

The plaintiff was the surviving spouse who after marrying the deceased in Alberta in 1994 lived together there until buying a house in BC in 2014 that was registered in joint tenancy and which went to the surviving plaintiff after her death.

The deceased returned to Alberta in 2015 for cancer treatments and to live with family and remained there until her death in late 2016.

Her will provided that it would be interpreted as per the laws of Alberta.

Her will left everything to her three children who were all Alberta residents.

The court interpreted the Court Jurisdiction and Proceedings Transfer act and held that the deceased had a settled intention to ordinarily reside in Alberta when she moved there in November 2015, and that at the time of her death she had no real or substantial connection to BC.

The Court determined that Alberta was the proper jurisdiction for the case having regard to the interests of the parties and the ends justice, and declined to exercise BC jurisdiction in favour of Alberta.

Section 10(b) of the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003 c. 28 states as follows:

10  Without limiting the right of the plaintiff to prove other circumstances that constitute a real and substantial connection between British Columbia and the facts on which a proceeding is based, a real and substantial connection between British Columbia and those facts is presumed to exist if the proceeding

…

(b)  concerns the administration of the estate of a deceased person in relation to

(i)  immovable property in British Columbia of the deceased person, or

(ii)  movable property anywhere of the deceased person if at the time of death he or she was ordinarily resident in British Columbia

Section 11(1) states:

11  (1) After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to hear the proceeding.

(2)  A court, in deciding the question of whether it or a court outside British Columbia is the more appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the proceeding, including

(a)  the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum,

(b)  the law to be applied to issues in the proceeding,

(c)  the desirability of avoiding multiplicity of legal proceedings,

(d)  the desirability of avoiding conflicting decisions in different courts,

(e)  the enforcement of an eventual judgment, and

(f)  the fair and efficient working of the Canadian legal system as a whole.

The term “ordinarily resident” has been interpreted by the Court in Blazek v. Blazek, 2009 BCSC 1693, at paras. 31-35:

[31]      Section 3 of the Act provides that the court has territorial competence in a proceeding if the person is “ordinarily resident in British Columbia at the time of the commencement of the proceedings.” Although the evidence is somewhat conflicting, it appears that at the time this action was commenced in 2007, the defendant split his time between the Czech Republic and Kelowna, British Columbia. There is a dispute between the parties regarding whether the amount of time the defendant spent in British Columbia was more or less than 150 days.

[32]      The meaning of “ordinarily resident” has been considered by the courts on many occasions. The authority often referred to is Thomson v. Minister of National Revenue, [1946] S.C.R. 209, [1946] C.T.C. 51, where Mr. Justice Estey stated:

A reference to the dictionary and judicial comments upon the meaning of these terms indicates that one is “ordinarily resident” in the place where in the settled routine of his life he regularly, normally or customarily lives. One “sojourns” at a place where he unusually, casually or intermittently visits or stays. In the former the element of permanence; in the latter that of the temporary predominates. The difference cannot be stated in precise and definite terms, but each case must be determined after all of the relevant factors are taken into consideration, but the foregoing indicates in a general way the essential difference. It is not the length of the visit or stay that determines the question. …

…

It is well established that a person may have more than one residence…

[33]      I am satisfied that the defendant resided in both places in 2007. I agree with the plaintiff’s position that “ordinarily resident” should be given a broad and liberal interpretation, in accordance with the provisions of the Act regarding corporations ordinarily resident in the province; “ordinarily resident” does not require a counting of days in which a party may spend in this jurisdiction. One can be ordinarily resident in more than one jurisdiction.

[34]      I am satisfied that the defendant was ordinarily resident in British Columbia. He was served with the writ of summons and statement of claim in this action at the Kelowna address and he was a director and officer of a company which listed the Kelowna address as the defendant’s address at the time the action was commenced. Further, the defendant files his income tax in Canada and receives a pension in Canada.

[35]      On this test, the court has territorial competence to hear the matter.

[27]         I am satisfied that the deceased had a settled intention to ordinarily reside in Alberta when she moved there on November 14, 2015 and took up residence at her sister’s home. It is clear from the evidence that she intended to remain in Alberta to be around her family and although some of her comments that were transcribed by the plaintiff are inconsistent where she said, on November 19, 2015:  “[t]hat’s sad hopefully I will be back there in a few months”, referring to Westbank, and on January 14, 2016: “One last thing I love you please remember that”. Those comments must be taken in context to her impending death. It is clear that she was applying for Alberta medical coverage, she changed her mailing address on her Edmonton Royal Bank chequing account to that of her sister, she had a will drawn up in Edmonton to be governed by the laws in Alberta, and it is clear from the telephone messages that she wished to sell the home in Westbank. Her contacting a lawyer and attempting to commence divorce proceedings shows her intention to separate from the plaintiff as was the January 9, 2016 text:  “You said you were here for me and you are a liar. I want you out.”

[28]         I am satisfied, based on all the evidence, that at the time of her death, the deceased was ordinarily resident in Alberta.

[29]         I am also satisfied that at the time of her death she did not have any real and substantial connections to British Columbia (s. 10 of the Court Jurisdiction and Proceedings Transfer Act).

[30]         The defendants also say that this court should decline to exercise its territorial competence in accordance with s. 11 of the Court Jurisdiction and Proceedings Transfer Act.

[31]         Section 11(1) states:

11  (1) After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to hear the proceeding.

(2)  A court, in deciding the question of whether it or a court outside British Columbia is the more appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the proceeding, including

(a)  the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum,

(b)  the law to be applied to issues in the proceeding,

(c)  the desirability of avoiding multiplicity of legal proceedings,

(d)  the desirability of avoiding conflicting decisions in different courts,

(e)  the enforcement of an eventual judgment, and

(f)  the fair and efficient working of the Canadian legal system as a whole.

[32]         Here, I am satisfied that the evidence is overwhelming, that all of the defendants and all the evidence concerning the execution of the will, and deceased’s assets, are in Alberta, as are the witnesses. I am satisfied after considering the interests of the parties to this proceeding and the ends of justice that this court should decline to exercise its territorial competence as Alberta is the more appropriate forum in which to hear these proceedings.

Res Judicata, Cause of Action Estopppel and Merger in Judgement

Res Judicata, Cause of Action Estopppel and Merger in Judgement

Wolverton Securities Ltd v Schemel 2009 BCSC 1048 discusses the concepts of res judicata, cause of action estoppel and merger in judgement and states that the concepts are often used interchangeably in various judgments.

The concepts essentially bar a litigant from suing a second time based on the same facts- a “second kick at the can” so to speak, even though the claim may be framed under a different cause of action.

Madam Justice Brown at para. 39 ruled that Wolverton’s second cause of action was:

… precluded by the principles of res judicata, cause of action estoppel or merger in the judgment, as these terms are used interchangeably in various judgments or texts.

56      Brown J. then referred at para. 40 to the decision of Rice J. in Royal Bank v. United Used Auto & Truck Parts Ltd., 2006 BCSC 1192 (B.C. S.C.). She quoted para. 38 from Justice Rice’s decision as follows:

Cause of action estoppel applies to bar proceedings that allege the same cause of action between the same parties if that cause has already been determined by the courts. However, despite its name, it is not so strictly limited. Cause of action estoppel also applies to bar subsequent proceedings covering the same subject matter and arising out of the same relationship between the parties, even though the second litigation may be based on a different legal description or conception of the cause: Lehndorff Management Ltd. v. L.R.S. Development Enterprises Ltd. (1980), 1980 CanLII 393 (BC CA), 19 B.C.L.R. 59 at pp. 64-65, 109 D.L.R. (3d) 729 (C.A.), cited with approval in Chapman v. Canada (2003) 21 B.C.L.R. (4th) 272, 2003 BCCA 665 (CanLII) at para. 17.

57      At para. 42 Madam Justice Brown said:

A cause of action is “the combination of facts which give rise to the right of action by a party against another in the first action. Because a party frames a first action in contract and a second action in tort does not change the determinative issues which the first court decided and which the second court would be asked to decide again, but with different remedies as the objective. That is, [for example] restitution rather than damages. A new legal theory in a second action such as tort rather than contract, marshalling the combination of facts from the first action in a different way, will not create a separate and distinct cause of action”: Donald J. Lange, The Doctrine of Res Judicata in Canada, 2d ed. (Markham, Ont.: Lexis Nexis 2004) at 140, citing Comeau v. Breau (1994), 1994 CanLII 4469 (NB CA), 145 N.B.R. (2d) 329 (C.A.) at 339, 343.

58      Thus, as Wolverton illustrates, varying the legal theory attached to a particular set of facts does not give rise to a distinct cause of action based on those same facts.

59      In Morgan Power Apparatus Ltd. v. Flanders Installations Ltd. (1972), 27 D.L.R. (3d) 249 (B.C. C.A.), a claim was originally brought for breach of contract and then settled with an order dismissing the action by consent. The plaintiff then brought an action on the same facts but framed the claim as one for fiduciary duty. The Court of Appeal found that the claim was barred by the doctrine of cause of action estoppel.

60      The doctrine of merger addresses a similar mischief. As explained by the Court in Hislop v. Canada (Attorney General), [2007] 1 S.C.R. 429 (S.C.C.) at para. 75: “When a judgment is obtained, the cause of action upon which the judgment is based is merged in the judgment.”

61      The doctrine also applies when a plaintiff who obtains judgment pursuant to one legal theory might have been entitled to a better remedy under an alternate legal theory that did not form the basis for the judgment.

62      The Court of Appeal makes the same point in Ladner Estate, Re, 2004 BCCA 366 (B.C. C.A.). The Court observed that it is no answer (quoting K.R. Handley, The Doctrine of Res Judicata, 3d ed. (London: Butterworths, 1996):

… to a former recovery to show that, by suing in one of two possible causes of action, the plaintiff recovered less than he would have had he sued in the other.

63      In McIntosh v. Parent, [1924] 4 D.L.R. 420 (Ont. C.A.), the Ontario Court of Appeal described the doctrine of merger of judgment as requiring:

…a plaintiff asserting a cause of action to claim all his relief in respect thereto, and prevents any second attempt to invoke the aid of the courts for the same cause, for on his first recovery his entire cause of action has become merged in his judgment and is gone for ever.

64      In addition to addressing the doctrine of merger, the Court in McIntosh v. Parent observed that:

It has been well said that the law prevents the parties from taking inconsistent attitudes before the Courts.

65      In McIntosh, the Court held that the litigant could not take the position in his present action that he might have recovered damages in his former action, when he had argued in the former action that damages could not be recovered because they arose after the date the writ was filed.

66      In this case the summary trial application of Mr. Dhillon appears to be inconsistent with the position he took before the Court of Appeal in the appeal of his damages award and on his application for leave to the Supreme Court of Canada. In both instances Mr. Dhillon argued that unless he was able to advance his claim of breach of fiduciary duty in the context of the assessment of damages his day in court would otherwise be denied.

67      As noted earlier, in Mr. Dhillon’s application for leave to appeal to the Supreme Court of Canada, he argued that unless the Court allowed his appeal, he would be denied his day in court on his pleaded fiduciary duty claim. As argued by counsel for Mr. Jaffer, now that the Court has rejected those arguments, Mr. Dhillon is attempting to proceed in his summary trial application as though his day in court on the fiduciary duty claim was always a given.