Highest Court Encourages Alternatives to Trial

Highest Court Encourages Alternatives to Trial

The Supreme Court of Canada released its decision in Hryniak v. Mauldin (2014 S.C.C. 7, [2014] 1 S.C.R. 87) and encouraged alternative solutions to a trial. In her decision, Karakatsanis, J. called for “a shift in culture” (para. 20). She recognized that the adjudication of… Read more

Ordering Court Costs Against a Non-Party

Ordering Court Costs Against a Non-Party

Hollander v Mooney 2017 BCCA 238 discussed the Court’s jurisdiction to order costs against a non-party and held that it is limited to special circumstances such as fraudulent conduct, abuse of process, gross misconduct, or circumstances where the non-party is the “real litigant”: Anchorage Management… Read more

Fiduciary Duties of Corporate Directors

Fiduciary Duties of Corporate Directors

Ascent One Properties Ltd v Liao 2017 BCSC 1017 dealt with an aborted real estate development project that alleged inter alia a breach of fiduciary duties by a corporate director and officer. The case outlines the law relating to the fiduciary duties owed by a… Read more

The Court Orders Mental Capacity Exam

Court Orders Mental Capacity Exam

In Re Singh 2017 BCSC 984 the court invoked its parens patriae jurisdiction and  ordered a 93 year old father to undergo a mental capacity examination by two geriatric doctors . Two of his six children claimed that their father was mentally incompetent to manage… Read more

s it a Loan or Gift Within the Family?

Loan or Gift Within the Family?

ABP v KGW 2017 BCSC 977 provides a template of the criteria a court will examine in determining if a gratuitous advance of monies or property within a family from parents to children will be a loan or a gift. 5      The topic of gratuitous transfers between… Read more

Undue Delay: Equitable Defence of Laches

Undue Delay: Laches

Hrenyk v Preiss estate 2017 SKQB 151 contains a through discussion of the equitable defence of laches- the plaintiff’s undue delay in proceeding with a court action to resolution. 26 Laches is discussed in Ahone v. Holloway (1988), 30 B.C.L.R. (2d) 368 (C.A.), at page 378:… Read more

Duplicate Litigation

Avoiding Duplicate Litigation (Res Judicata)

Duplicate litigation is to be avoided and thus the legal concept of res judicata- when a court has decided the legal issue already it constitutes a bar to a subsequent action involving the same claim. Alexander v Alexander 2017 BCSC 914 is a recent case… Read more

Determining Legal Fees When No Retainer Agreement is Present

Determining Legal Fees When No Retainer Agreement is Present

If a lawyer does not have a contingency fee agreement or retainer agreement then the courts will use various criteria to determine the appropriateness of the legal fees based on quantum meruit (a reasonable fee for services rendered). One of the chestnuts in this area of… Read more

Ensuring Independent Legal Advice

Ensuring Independent Legal Advice

Many transactions are set aside in British Columbia by the courts on the basis that true independent legal advice was not obtained by the person making a radically changed will or transferring an asset for little or no consideration. A lawyer’s duty in such situations… Read more

Lower Courts Bound By Higher Courts (Stare Decisis)

Lower Courts Bound By Higher Courts (Stare Decisis)

Most people likely know that higher courts such as appeal courts bind the decisions of lower courts through precedents. The legal term is stare decisis (to adhere to precedents), and the legal rationale is that like decisions should be decided alike so as to give more… Read more

The Principles of Moot Court Cases

The Principles of Moot Court Cases

Moot court cases occur when a determination is sought on a matter which when decided by the court will not have any practical effect on the existing dispute such as the legal issue no longer exists. The courts do however have discretion when the moot… Read more

Dismissal For Delay (Want of Prosecution)

Dismissal For Delay (Want of Prosecution)

PMC Builders & Developers Ltd v Country West Construction Ltd 2009 BCCA 535 is one of the leading cases in BC for dismissal of a court action for delay, also known as want of prosecution. It was recently followed in an estate case Re Strom… Read more

Costs: The Standard of Review

Costs: The Standard of Review

The BC Court of Appeal in Giles v Westminster Savings Credit Union 2010 BCCA 282 reviewed the standard of awarding costs and the various purposes for an award of costs. The case was recently followed in Kyle Estate v Kyle 2017 BCSC 752 which stated… Read more

Self Represented Litigants

The Rising Trend of Self Represented Litigants

The Ontario Court of Appeal in Moore v Apollo & Beauty Care 2017 ONCA 383 discussed the increasing trend of self  represented litigants appearing before the courts. Self represented litigants present a problem for both the Court and any opposing counsel due to their general… Read more

Court Directions

Court Directions

Biely Estate v CNIB 2017 BCSC 788 involved an application for Court directions to be followed with respect to three competing wills of a deceased. The application was brought pursuant to Supreme Court Civil Rule 25-14(8)(a) and sought directions that the litigation only deal with… Read more