The tort of civil fraud (as opposed to criminal fraud) was reviewed by the Supreme Court of Canada in Bruno Appliance and Furniture Inc. v Hyrniak 2014 SCC 8 and concluded there are four elements .
18 The classic statement of the elements of civil fraud stems from an 1889 decision of the House of Lords, Peek v. Derry(1889), L.R. 14 App. Cas. 337 (U.K. H.L.), where Lord Herschell conducted a thorough review of the history of the tort of deceit and put forward the following three propositions, at p. 374:
First, in order to sustain an action of deceit, there must be proof of fraud, and nothing short of that will suffice. Secondly, fraud is proved when it is shewn that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false…. Thirdly, if fraud be proved, the motive of the person guilty of it is immaterial. It matters not that there was no intention to cheat or injure the person to whom the statement was made.
19 This Court adopted Lord Herschell’s formulation in Parna v. G. & S. Properties Ltd.(1970), [1971] S.C.R. 306 (S.C.C.), adding that the false statement must “actually [induce the plaintiff] to act upon it” (p. 316, quoting Anson on Contract). Requiring the plaintiff to prove inducement is consistent with this Court’s later recognition in Snell v. Farrell [1990] 2 S.C.R. 311 (S.C.C.), at pp. 319-20, that tort law requires proof that “but for the tortious conduct of the defendant, the plaintiff would not have sustained the injury complained of”.
20 Finally, this Court has recognized that proof of loss is also required. As Taschereau C.J. held in Angers v. Mutual Reserve Fund Life Assn. (1904), 35 S.C.R. 330 (S.C.C.) “fraud without damage gives … no cause of action” (p. 340).
21 From this jurisprudential history, I summarize the following four elements of the tort of civil fraud:
(1) a false representation made by the defendant;
(2) some level of knowledge of the falsehood of the representation on the part of the defendant (whether through knowledge or recklessness);
(3) the false representation caused the plaintiff to act; and
Rubin Estate v Rubin Estate 2017 ONSC 1404 dealt with an application of prohibiting Lawyer from acting for her siblings and mother who were being sued by one daughter.
The lawyer in question had previously given US tax advise on a ” no names basis” and the court found that this did not warrant sufficient grounds to prohibit the lawyer from acting as counsel.
2. Lawyers can be prohibited from acting against a person where:
a. the lawyer has received relevant confidential information from the person attributable to a lawyer client relationship; and
b. there is a risk that the lawyer will use the person’s confidential information to the prejudice of the person.
Ontario v. Chartis Insurance Co. of Canada, 2017 ONCA 59 (Ont. C.A.) (CanLII) at para.33.
In the leading Supreme Court of Canada case on this topic, MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235 (S.C.C.), Mr. Justice Sopinka adverted to this very issue.
In discussing the need to protect the client’s confidentiality during a motion to remove opposing counsel, Sopinka J. held that clients cannot be required to prove that their former lawyer had confidential information because “[i]n order to explore the matter in depth may require the very confidential information for which protection is sought to be revealed.”
To avoid this conundrum, the Supreme Court of Canada created a rule under which all that a former client needs to do is to show that there was a previous relationship between the client and the lawyer related to the lawyer’s current, adverse retainer, and the court will then infer that confidential information was imparted to the lawyer by the former client unless the lawyer proves otherwise.
Moreover, if the lawyer wants to try to prove that no confidential information was disclosed to him or her, the lawyer’s burden “must be discharged without revealing the specifics of the privileged communication.” See MacDonald Estate at pp. 1260 and 1261.
Accordingly, I do not have to assess whether a lawyer who receives information on a “no names” basis has a duty akin to a law firm marketing its services to a potential client as discussed in Ainsworth Electric Co. v. Alcatel Canada Wire Inc., 1998 CarswellOnt 2162 (Ont. Master).
Nor do I have to try to balance the applicant’s right to a lawyer of her choosing against the respondents’ right to protection of their confidences in a solicitor client relationship. In light of the disclosure of the email, there is no more confidential information in the hands of the applicant’s firm and therefore there is no risk of the applicant’s lawyer illicitly using any confidential information in his firm’s possession.
It occasionally occurs in estate litigation that parties conspire with others to defeat the claims of a party that give rise to a court pleading of the tort of conspiracy.
For example, I recently had a situation where the executor attempted to sell the property to a third party for about 2/3 of the fair market price and in effect cheat the beneficiary of the rightful amount of the sale.
It was clear that the executor conspired with the phony purchaser to buy the property and then resell it at it’s fair market value then spit the substantial ill gained “profit”.
Norkum v Fletcher 2017 BCSC 382 involved the requirements of pleading the tort of conspiracy. the plaintiff sought leave of the court to amend his claim that:
The plaintiff alleged he was deceived by Ms. Fletcher throughout their relationship. He alleged he was induced by Ms. Fletcher to believe that their relationship was exclusive; and that he intended, and understood Ms. Fletcher to have intended, that they would make a life together as a couple. He further alleged that he was led to believe by Ms. Fletcher that the two of them would ultimately occupy Lot 9 together, and that he provided her with expensive gifts, loans, and other forms of support; and, that he caused MAN to hire her as a human resources manager, paying her a salary, in respect of which he seeks to add MAN as a plaintiff.
18 As a matter of general pleading, R. 3-1(2)(a) clearly states that a notice of civil claim must “set out a concise statement of the material facts giving rise to the claim”.
19 Further, the requirements at common law for the particularization of all material facts said to underlie a claim for conspiracy are as summarized by Saunders J.A. in Watson v. Bank of America Corporation, 2015 BCCA 362[Watson]:
(i) an agreement or concerted action between two or more persons;
(ii) with the predominant purpose of causing injury to the plaintiff; and
(iii) overt acts committed that cause damage to the plaintiff.
[126] The standard for pleading a conspiracy is well-recognized as strict. In Can-Dive, Chief Justice McEachern adopted the meticulous judgment of Mr. Justice Esson in Thompson v. Coquitlam (District) (1979), 15 B.C.L.R. 59 at 63 (C.A.):
It is well settled that the gist of the tort of conspiracy is not the conspiratorial agreement alone, but that agreement plus the overt acts causing damage.
[127] Chief Justice McEachern added:
[8] Esson J. also cited Bullen, Leake & Jacob’s Precedents of Pleadings, 12th ed. (1975), p. 341. The current edition of Bullen, Leake & Jacob’s Precedents of Pleadings, 13th ed. (1990), states at p. 221-22:
The statement of claim should describe who the several parties to the conspiracy are and their relationship with each other. It should allege the conspiracy between the defendants giving the best particulars it can of the dates when or dates between which the unlawful conspiracy was entered into or continued, and the intent to injure . . . It should state precisely the objects and means of the alleged conspiracy to injure and the overt acts which are alleged to have been done by each of the alleged conspirators in pursuance of the conspiracy, and lastly, the injury and damage occasioned to the plaintiff . . .
[Emphasis added.]
20 Saunders J.A. went on to state:
[132] I agree with the defendants that the import of Can-Dive, based as it is in Thompson and Bullen, Leake & Jacob, extends beyond a stay to the requirements for pleading conspiracy to injure. I also agree that Can-Dive does more than describe an aspirational standard, it addresses the requirements of a valid pleading of conspiracy to injure. The standard, at the end, is the one stated by Chief Justice McEachern: “pleadings alleging conspiracy must be as specific as possible”.
Dusanjh v Wright Estate 2017 BCSC 340 sets out the law relating to interpreting contracts when there is an ambiguity as to it’s meaning.
The children of the deceased brought a petition that argued the deceased had established a trust in their favour and the court in dismissing their petition set out the principles for the interpretation of the documents that were before the court. The children argued that the documents established a trust in their favour but the court disagreed , found no trust was established and dismissed the petition.
THE PRINCIPLES OF CONTRACTUAL INTERPRETATION
38 The most current law in British Columbia on the principles of contractual interpretation is British Columbia (Minister of Technology Innovation and Citizens’ Services) v. Columbus Real Estate Inc., 2016 BCCA 283 at paras. 41-47 citing Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 [Sattva]:
[41] The goal of interpreting an agreement is to discover the objective intent of the parties at the time the contract was made. In Sattva, the Supreme Court of Canada affirmed the “modern approach” to contractual interpretation. It held that the interpretive process involves reading the agreement in question “as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract” Paras. 47, 50 [emphasis added in British Columbia (Minister of Technology Innovation and Citizens’ Services)].
[42] Sattva confirmed that the surrounding circumstances are relevant to contractual interpretation regardless of whether there is ambiguity in the contract. In this regard, Whitmore J.A.’s observations in Directcash Management Inc. v. Seven Oaks Inn Partnership, 2014 SKCA 106 at para. 13 are apposite:
Prior to the Supreme Court’s decision in Sattva, it was not clear that the surrounding circumstances or the “factual matrix” of the contract had to be taken into account when interpreting a contract. The Supreme Court had earlier suggested in Eli Lilly & Co. v. Novopharm Ltd. [1998] 2 S.C.R. 129at para 55 — 56 that the surrounding circumstances only had to be considered when the contract was ambiguous. Sattva has made it clear that the surrounding circumstances are relevant, whether or not there is an ambiguity in the contract.
[43] The principle that surrounding circumstances must be considered represents the longstanding law in British Columbia: see 0930032 B.C. Ltd. v. 3 Oaks Dairy Farms Ltd. 2015 BCCA 332 at paras. 3 — 5 [Oaks Dairy]. In Oaks Dairy, Newbury J.A., writing for the court, commented that, “[i]t may be that the Supreme Court in Sattva was only encouraging courts to be even more receptive to considering evidence of “factual matrix” to elucidate the interpretation of contracts” (Emphasis in original; para. 6). See also the decision of Lambert J.A. in Glaswegian Enterprises Inc. v. B.C. Tel Mobility Cellular Inc. (1997), 49 B.C.L.R. (3d) 317 (C.A.) at paras. 19-20.
[44] I would add that in Sattva, the Court discussed the difficulty of discerning objective intentions by reading the bare words of a contract in absence of a consideration of the surrounding circumstances, and that consideration of them is part of the interpretive process at paras. 47-48:
[47] . . . the interpretation of contracts has evolved towards a practical, common-sense approach not dominated by technical rules of construction. The overriding concern is to determine “the intent of the parties and the scope of their understanding” (Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada, 2006 SCC 21, [2006] 1 S.C.R. 744, at para. 27, per LeBel J.; see also Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, [2010] 1 S.C.R. 69, at paras. 64-65, per Cromwell J.). To do so, a decision-maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract. Consideration of the surrounding circumstances recognizes that ascertaining contractual intention can be difficult when looking at words on their own, because words alone do not have an immutable or absolute meaning:
No contracts are made in a vacuum: there is always a setting in which they have to be placed . . . In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating.
(Reardon Smith Line, at p. 574, per Lord Wilberforce)
[48] The meaning of words is often derived from a number of contextual factors, including the purpose of the agreement and the nature of the relationship created by the agreement . . . .
[45] The Court then discussed the role and nature of the “surrounding circumstances” in contractual interpretation at para. 57:
While the surrounding circumstances will be considered in interpreting the terms of a contract, they must never be allowed to overwhelm the words of that agreement (Hayes Forest Services, at para. 14; and Hall, at p. 30). The goal of examining such evidence is to deepen a decision-maker’s understanding of the mutual and objective intentions of the parties as expressed in the words of the contract. The interpretation of a written contractual provision must always be grounded in the text and read in light of the entire contract (Hall, at pp. 15 and 30-32). While the surrounding circumstances are relied upon in the interpretive process, courts cannot use them to deviate from the text such that the court effectively creates a new agreement (Glaswegian Enterprises Inc. v. B.C. Tel Mobility Cellular Inc. (1997), 101 B.C.A.C. 62).
[46] The Court discussed what kind of evidence may be considered under the “rubric” of surrounding circumstances at para. 58:
The nature of the evidence that can be relied upon under the rubric of “surrounding circumstances” will necessarily vary from case to case. It does, however, have its limits. It should consist only of objective evidence of the background facts at the time of the execution of the contract (King, at paras. 66 and 70), that is, knowledge that was or reasonably ought to have been within the knowledge of both parties at or before the date of contracting. Subject to these requirements and the parol evidence rule discussed below, this includes, in the words of Lord Hoffmann, “absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man” (Investors Compensation Scheme, at p. 114). Whether something was or reasonably ought to have been within the common knowledge of the parties at the time of execution of the contract is a question of fact.
39 Any determination of whether the Articles are ambiguous cannot be determined unless the factual matrix is first considered. It is therefore necessary to determine whether the two letters of September 21, 2005 are included in the factual matrix, or, as Randy argues, are inadmissible.
40 In Sattva at paras. 59 to 61, Rothstein J. stated:
[59] It is necessary to say a word about consideration of the surrounding circumstances and the parol evidence rule. The parol evidence rule precludes admission of evidence outside the words of the written contract that would add to, subtract from, vary, or contradict a contract that has been wholly reduced to writing (King, at para. 35; and Hall, at p. 53). To this end, the rule precludes, among other things, evidence of the subjective intentions of the parties (Hall, at pp. 64-65; and Eli Lilly & Co. v. Novopharm Ltd., [1998] 2 S.C.R. 129, at paras. 54-59, per Iacobucci J. [Eli Lilly]). The purpose of the parol evidence rule is primarily to achieve finality and certainty in contractual obligations, and secondarily to hamper a party’s ability to use fabricated or unreliable evidence to attack a written contract (United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, at pp. 341-42, per Sopinka J.).
[60] The parol evidence rule does not apply to preclude evidence of the surrounding circumstances. Such evidence is consistent with the objectives of finality and certainty because it is used as an interpretive aid for determining the meaning of the written words chosen by the parties, not to change or overrule the meaning of those words. The surrounding circumstances are facts known or facts that reasonably ought to have been known to both parties at or before the date of contracting; therefore, the concern of unreliability does not arise.
[61] Some authorities and commentators suggest that the parol evidence rule is an anachronism, or, at the very least, of limited application in view of the myriad of exceptions to it (see for example Gutierrez v. Tropic International Ltd. (2002), 63 O.R. (3d) 63 (C.A.), at paras. 19-20; and Hall, at pp. 53-64). For the purposes of this appeal, it is sufficient to say that the parol evidence rule does not apply to preclude evidence of surrounding circumstances when interpreting the words of a written contract.
The plaintiff’s claim was dismissed with costs and the defendant sought double costs under Rule 9-1(5) on the basis that the defendant made an offer to settle that should have been accepted by the plaintiff.
The application for double costs was dismissed as the court stated:
15 However, I do not consider the defendants’ offer to have been one that ought reasonably to have been accepted by the plaintiffs. In assessing reasonableness, I cannot consider the ultimate decision in the case. At the time of the defendants’ offer they were essentially asking the plaintiffs to give up their claim entirely and, in addition, pay the future premiums for the life insurance policy. Accepting the offer would have required the plaintiffs to completely accept the defendants’ position. Furthermore, no rationale was provided by the defendants to the plaintiffs for the terms of the offer.
In Hartshorne v. Hartshorne, 2011 BCCA 29, our Court of Appeal offered some guidance when a trial court is asked to award double costs.
11 At para. 25 the Court of Appeal states:
[25] An award of double costs is a punitive measure against a litigant for that party’s failure, in all of the circumstances, to have accepted an offer to settle that should have been accepted. Litigants are to be reminded that costs rules are in place “to encourage the early settlement of disputes by rewarding the party who makes a reasonable settlement offer and penalizing the party who declines to accept such an offer. (Authorities are cited)
12 The Court goes on to state, at para. 27:
[27] The first factor — whether the offer to settle was one that ought reasonably to have been accepted — is not determined by reference to the award that was ultimately made. Rather, in considering that factor, the court must determine whether, at the time that offer was open for acceptance, it would have been reasonable for it to have been accepted . . . the reasonableness is to be assessed by considering such factors as the timing of the offer, whether it had some relationship to the claim (as opposed to simply being a “nuisance offer”), whether it could be easily evaluated, and whether some rationale for the offer was provided.
Non Binding (Precatory) words in a will were found not to create a trust that was legally binding on the trustee, but instead that the words were non binding ( precatory) and thus only morally binding an thus an outright bequest.
Killam v Killam 2017 BCSC 175 contains an exhaustive review of the rules of construction in deciding whether the following provision of a will creates a trust that is legally binding to use for the bequest for the health, support and maintenance” of the beneficiary, or whether the words “ it is my desire but I do not direct “are merely morally binding ( precatory) and not legally binding:
The provision in dispute is worded differently than those concerning the other relatives. It reads:
Provided HUMPHREY HUBBARD KILLAM should survive me, then in such event I give and bequeath ONE (1) SHARE to EUGENE HUMPHREY KILLAM, provided, should he predecease me, then to LAWRENCE HEBB KILLAM. It is my desire, however, I do not direct, that said share shall be used for the health, support and maintenance of HUMPHREY HUBBARD KILLAM, for as long as he should live or as long as said funds are available for such purpose.
After an exhaustive review of the rules of construction of the court concluded that the words do not form a trust for the beneficiary and instead is an outright bequest.
Precatory Language
63 Professor Waters, in his authoritative work, Waters’ Law of Trusts in Canada, 4th ed. (Toronto, Ont.: Carswell, 2012), provides an interesting historical context to what some have referred to as “precatory trusts”. He notes, first of all, that the prime question of whether a trust has been created is still one of construction (at 145):
The question which gives rise to most litigation is whether a testator intends to create a trust, or merely impose some kind of moral obligation upon the legatee when he bequeaths personalty or devises land in confidence that the legatee will use the property in certain ways. He may speak, for instance, of his “expectation”, “fervent wish”, “desire”, “firm belief” or “purpose” that this will be done. Such words may give rise to what has been called “a precatory trust”, though, as Rigby L.J. pointed out in the English Court of Appeal, and his words have been echoed in Canada, this title is awkward and incorrect; “a misleading nickname”. If language, once construed, is held to intend a trust, then whether the language is precatory or otherwise, the trust which is thereby set up is the same as any other express trust, and no different rules apply.
64 There was a profound shift in the judicial approach to these sorts of cases starting in the nineteenth century, caused by an English statutory change (at 145 – 147):
Prior to the latter half of the nineteenth century the courts bent over backwards to find that testamentary language of a precatory kind revealed the intention to transfer on trust. By imposing a binding obligation upon the recipient of the property, the wishes of the testator were held to be safeguarded, concerning those who were to benefit from his property. Moreover, before 1830, the executor in English law took the residue of the estate beneficially, if it were not otherwise disposed of; and where it was incumbent upon the executor to respect only the wishes, hopes, desires, and belief of the testator that others would be benefited, the temptation of the executor to ignore those moral obligations was considerable. Then, in 1830, that right of the executor was statutorily taken away, and thereafter, the pace picking up after 1870, the courts became gradually less inclined to discover trust intention in mere precatory words. It is generally agreed that the climate of judicial attitude changed noticeably with the case of Lambe v. Eames and Canadian courts have joined in this new attitude. In 1889, in Bank of Montreal v. Bower, Chancellor Boyd of the Ontario High Court Chancery Division stated:
It would be an otiose undertaking to go through all the cases, for they are numerous, and cannot be reconciled. But since Lambe v. Eames . . . . there has been a new departure in favour of confining language supposed to create a trust for the children [of the testator and the widow] within much narrower limits, than in some of the earlier cases. If the entire interest in the subject of the gift is given with superadded words expressing the nature of the gift, or the confident expectation that the subject will be applied for the benefit of particular persons, but without . . . terms cutting down the interest before given, it will not now be held . . . that a trust has been thereby created.
And in Johnson v. Farney, Meredith C.J.O. adopted the view of Cozens-Hardy M.R. in the leading English case of Re Atkinson that every care has to be taken not to make mandatory words from those which are the mere indication of a wish or request, and that to construe the true intention of the testator, the courts must examine the trust instrument as a whole and not be mesmerised by particular words. Earlier, in Renehan v. Malone, this same view had been expressed by Barker J. On many occasions, Trench v. Hamilton has been approved in Canadian courts. In that case, Lindley L.J. pointed out that the meaning which a court derives must prevail even if judges in the past have drawn different conclusions from more or less similar language.
65 Professor Waters concludes as follows (at 147):
Whether a trust has been created is simply a matter of construction; this principle has not changed. What has changed is the tendency found in the earlier cases to discover imperative meaning in various word formulae, like “wish and direction” or “trusting that” and expressions of that nature.
A court pleading may be struck out by the Court pursuant to Rule 9-5 ( 1) which states:
1) At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of pleading, petition or other document on the ground that:
a) it discloses no reasonable claim or defence, as the case may be,
b) it is unnecessary, scandalous, frivolous or vexatious,
c) is otherwise an abuse of the process of the court,
And the court may pronounce judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs.
In Johnston Estate v Johnston 2017 BCCA 59 the trial judge’s decision was upheld by the Court of Appeal when the court struck out the plaintiff’s claim on the basis that his claim that the solicitor who drew a new will for his deceased father, changing the previous will in which the plaintiff would inherit, owed him a duty of care as a beneficiary to not change the will as it was inconsistent with the previous will.
The Court struck out the claim on the basis that” it was “bound to fail” as it disclosed no reasonable claim as the solicitor did not owe him, as a prior beneficiary, a duty of care at law.
In Carhoun & Sons Enterprises Ltd. v. Canada (Attorney General), 2015 BCCA 163 (CanLII), Madam Justice Garson reviewed the test generally to strike a pleading on the basis it fails to disclose a reasonable cause of action:
[16] The test to strike a pleading on the basis that the claim fails to disclose a reasonable cause of action was described in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959. Madam Justice Wilson, writing for the Court, emphasized that, in an application to strike pleadings, “[n]either the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case”: Hunt at 980.
Claims should only be struck out if it is plain and obvious they will fail or the case is “beyond reasonable doubt”: Hunt at 980. She said, “when a statement of claim reveals a difficult and important point of law, it may well be critical that the action be allowed to proceed”: Hunt at 990.
Re Silkstrom 2017 BCSC 206 involved a contested application under the Patient’s Property Act to be appointed the committee of the person of an elderly mental incompetency patient.
A Trust company had earlier been appointed to manage the elderly woman’s financial affairs pursuant to a Power of Attorney that she signed when she was still mentally competent.
The applicants were a close friend who had cared for the patient for several years, and the opposing applicant was a niece and her husband.
The patient had no close family.
The Court reviewed the various factors to be considered , found there was potential for conflict of interest with the niece and granted committee-ship of the person to the good friend.
Committeeship of the person would allow the friend to make health care decisions for the patient, while the trust company would continue to mange her financial affairs.
The Applicable Law
17 The test for determining who is appropriate to act as a committee invokes the parens patriae jurisdiction of the court and is governed by the assessment of who will serve the patient’s best interests, including a consideration of who can best deal with the patient’s financial affairs, nurture her estate, and see that her income and estate are applied for her greatest benefit.
18 Although each case must be decided on its particular facts, in Re Bowman, 2009 BCSC 523 at para. 33, the court set out a number of considerations which guide the court’s decision-making:
(a) the proposed committee’s previous involvement with the patient or her family;
(b) the proposed committee’s knowledge and understanding of the patient’s situation and needs;
(c) the proposed committee’s level of experience and capability in performing the duties of committee;
(d) the plan of the proposed committee for the management of the patient; and
(e) any potential conflict of interest between the proposed committee and the patient.
19 More recently, in Stewart (Re), 2014 BCSC 2321 at para. 29, Justice Masuhara summarized additional criteria from a number of decided cases. I set out only those criteria relevant to this decision which relates only to appointing a committee of the person. They are:
(a) whether the appointment reflects the patient’s wishes, obviously when he or she was capable of forming such a wish;
(b) whether immediate family members are in agreement with the appointment;
(c) whether there is any conflict between family members or between the family and the patient, and whether the proposed committee would be likely to consult with immediate family members about the appropriate care of the patient;
(d) the level of previous involvement of the proposed committee with the patient, usually family members are preferred;
(e) the level of understanding of the proposed committee with the patient’s current situation, and will that person be able to cope with future changes of the patient;
(f) whether the proposed committee will provide love and support to the patient;
. . .
(i) who is best to advocate for the patient’s medical needs;
(j) whether the proposed committee has an appropriate plan of care and management for the patient and his or her affairs and is best able to carry it out; …
The Court of Appeal in Johnston v Johnston Estate 2017 BCCA 59 upheld the trial decision found at 2016 BCSC 1388 where an action seeking that a will was invalid, or alternatively if it was valid it should be varied under the wills variation provisions , should be severed into two court actions, with the validity of the will to be determined firstly.
The Appeal Court expanded upon the reasons of the trial judge in ordering a severance of the two claims as follows:
A discretionary decision of a lower court will be reversible where that court misdirected itself or came to a decision that is so clearly wrong that it amounts to an injustice: Elsom v. Elsom, [1989] 1 S.C.R. 1367, at p. 1375. Reversing a lower court’s discretionary decision is also appropriate where the lower court gives no or insufficient weight to relevant considerations: Friends of the Oldman River Society v. Canada . . . [At para. 27.]
(See also: Rise & Shine Grocery & Gas Ltd. v. Novak, 2016 BCCA 483 at paras. 36 — 37.)
43 The standard of review for discretionary decisions is one of deference.
44 As noted by the PGT, in addition to the court’s jurisdiction under Rule 22-5, it may temporarily stay a proceeding pursuant to its inherent jurisdiction or under s. 8(2) of the Law and Equity Act, R.S.B.C. 1996, c. 253, or both: Zurich Indemnity Co. of Canada v. Western Delta Lands Inc. (1997), 38 B.C.L.R. (3d) 273, 95 B.C.A.C. 165 at para. 14 (C.A.), leave to appeal to S.C.C. refused [1997] S.C.C.A. No. 469. In exercising its discretion to grant or deny a stay, the court must weigh the potential benefits and prejudice at play and fairly balance the parties’ competing interests.
45 The court’s jurisdiction under Rule 22-5, s. 8(2) of the Law and Equity Act, and its inherent jurisdiction are exceptions to the principle stated in s. 10 of the Law and Equity Act as to the general avoidance of multiplicity of legal proceedings “as far as possible”.
46 I would endorse the judge’s non-exclusive summary of the key considerations relevant to an application to sever and the general principles governing severance:
[68] The key factors engaged in a general sense on an application to sever were canvassed in Schaper v. Sears Canada, 2000 BCSC 1575[Schaper] at para. 19:
1. . . . the party making the request must show that hearing the claims together would unduly complicate, delay the hearing, or otherwise be inconvenient. If a party applying does not meet this threshold, the court need not go further in any analysis and the application should be dismissed.
2. Have the actions of any party in the proceeding been unreasonable and have they contributed to the complication, the delay, or the inconvenience alleged by the party applying? If this found [sic], that would strengthen the argument to sever.
3. Are the issues between the plaintiff and defendant and the issues between the defendant and the third party sufficiently distinct so as to allow them to be tried separately? If so, that strengthens the argument to sever off third party proceeding.
4. Is the relief claimed by, or the potential obligation of, any party best determined by hearing the evidence of all parties at one hearing? If so, that weakens an application to sever.
5. Does the prejudice to the party applying, prejudice based on undue complication, delay or inconvenience, outweigh any benefit of matters being heard together, or outweigh any considerations related to the overall objective of the rules to ensure a just, speedy and inexpensive determination of every proceeding on its merits, including the avoidance of a multiplicity of proceedings for the benefits of litigants and having concern to congestion in the courts generally?
[69] Guidelines that focused attention more keenly on the efficacy of the trial process were helpfully laid out in O’Mara v. Son, Kim et al., 2007 BCSC 871[O’Mara] at para. 23:
1. whether the order sought will create a saving in pre-trial procedures;
2. whether there will be a real reduction in the number of trial days taken up by the trial being heard at the same trial;
3. whether a party may be seriously inconvenienced by being required to attend a trial in which the party may have a marginal interest;
4. whether there will be a real saving in expert’s time and witness fees;
5. whether one of the actions is at a more advanced stage than the other;
6. whether the order sought will result in delay of the trial of any one of the actions and, if so, whether any prejudice which a party might suffer as a result of that delay outweighs the potential benefits which a consolidated trial might otherwise have;
7. the possibility of inconsistent findings and common issues resulting from separate trials.
[70] Severance may well be appropriate where the determination of one issue will render another one moot: Lawrence v. ICBC, 2001 BCSC 1530[Lawrence].
[71] The judicial discretion to sever trials or hearings is to be exercised sparingly: Morrison Knudsen Co. v. British Columbia Hydro & Power Authority, 1972 CarswellBC 62, 24 D.L.R. (3d) 579 (S.C.); Lawrence at para. 43. The test for severance is not applied in a vacuum; it is to be considered against the backdrop of the nature of the particular case at hand: Wirtz v. Constantini, 137 D.L.R. (3d) 393, 1982 CarswellBC 588 (S.C.). Because the determination involves an individualized assessment of the unique case before the Court, there is no closed list of uniformly applied considerations that inform the exercise of the Court’s discretion.
47 The judge also identified specific principles relevant to the nature of the case before her. In particular, she recognized limitations on the powers of a committee and on the nature of claims that can properly be included in a counterclaim to a proof of will in solemn form proceeding. Citing Re: Langford and The Patients Property Act, 2000 BCSC 721, she said:
[77] There is no question but that as the executor named in the Impugned Wills, the PGT is entitled to bring the Proof of Will Action. On the surface, s. 24 of the PPA suggests that in its capacity as committee of Norman’s estate, the PGT would have the authority to defend against the other claims. However, in Re: Langford and The Patients Property Act, 2000 BCSC 721 [Re: Langford], the Court reasoned that the legislature could not have intended to invest a committee with all of the powers of an executor or administrator such as obtaining title to the deceased’s assets or winding up and distributing the estate of the deceased patient. It held that because s. 24 expressly contemplates that probate or administration will be taken out after a patient’s death, it is intended to be operative only in the intervening period. In the result, Re: Langford held that s. 24 simply authorizes a committee of a deceased patient to maintain the status quo of the deceased patient’s estate during the hiatus period pending the issuance of letters probate or administration.
[83] . . . there is case authority that has placed some limitation on the nature of claims that can properly be included in a counterclaim to a proof of will in solemn form proceeding. In Clark v. Nash, [1986] B.C.J. No. 1655 (S.C.) aff’d [1987] B.C.J. No. 304 (C.A.) [Clark], the Court held that the procedure and hearing involved in a proof of will in solemn form proceeding should be limited to the aspects of the will execution, testamentary capacity, want of knowledge and fraud. The Court reasoned that a counterclaim to vary a will that is alleged to be invalid is therefore premature, and hearing it at the same time or before the action involving the proof of the challenged will is neither just nor convenient
[84] Since its pronouncement, Clark has stood for the general proposition that it is improper to include a wills variation claim in an action for proof of will in solemn form on the footing that a valid will is a condition precedent to a variation proceeding. Although I believe that, on occasion, this Court has heard such claims together (presumably without being taken to Clark), Clark nonetheless strengthens the application to sever, at least vis-a-vis David’s claim to have the Impugned Wills varied.
It occasionally occurs in estate litigation that a party has complaints about the misfeasance of public officials, (usually against the Public Guardian and Trustee), as a result of perceived deliberate unlawful actions on the part of the public official against the complainant
The tort of misfeasance is the legal remedy when appropriate to seek compensation for such unlawful conduct on the part of the public official.
In my experience, such actions rarely succeed except in the most egregious instances where it is proved that the official abused his or her powers to the detriment of the ordinary citizen.
The Supreme Court of Canada has set out the elements of the tort of misfeasance in public office in Odhavji Estate v. Woodhouse 2003 SCC 69, [2003] 3 S.C.R. 263 (S.C.C.), at para. 23, and in St. Elizabeth Home Society v. Hamilton (City), 2010 ONCA 280, 319 D.L.R. (4th) 74 (Ont. C.A.), at para. 20, as follows:
(a) that a public officer, acting in his or her capacity as a public officer, engages in deliberate and unlawful conduct;
(b) the public officer is aware both that the conduct is unlawful and that it is likely to harm the plaintiff;
(c) the public officer’s tortious conduct was the legal cause of the plaintiff’s injuries; and
(d) the injuries suffered are compensable in law.
104 In Freeman-Maloy v. York University (2006), 79 O.R. (3d) 401 (Ont. C.A.), (sub nom Freeman-Maloy v. Marsden) 2006 CanLII 9693, at para. 10, leave to appeal refused, [2006] S.C.C.A. No. 201 (S.C.C.), Sharpe J.A. writing for the Court stated that “[t]he tort of misfeasance in a public office is founded on the fundamental rule of law principle that those who hold public office and exercise public functions are subject to the law and must not abuse their powers to the detriment of the ordinary citizen.”
