The Collateral Attack Rule

Collateral damageThe trusts of the late Sam Cohen reported in Re Newton Trust 2013 BCSC 1665 involved an issue relating to the collateral attack rule.

One of the trustees sought $800,000 in past fees for periods covered in previous passing of accounts.

Various legal issues such as res judicata were discussed , as well as the “Collateral attack rule”.

67] In essence, the real question that I must determine is whether a party can bring a second action in relation to a previous proceeding he commenced that challenges the constitutional basis for that action.

[68] Mr. MacKenzie has attempted to frame this claim as an entirely new proceeding on the basis of the substantive issues he raises in the petitions. However, he expressly asks this Court to set aside the impugned judgment of Registrar Blok. These circumstances raise the question of whether the collateral attack rule is engaged.

[69] In Wilson v. The Queen, [1983] 2 S.C.R. 594 at 599, Mr. Justice McIntyre described the rule of collateral attack:

It has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding and conclusive unless it is set aside on appeal or lawfully quashed. It is also well settled in the authorities that such an order may not be attacked collaterally—and a collateral attack may be described as an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment. Where appeals have been exhausted and other means of direct attack upon a judgment or order, such as proceedings by prerogative writs or proceedings for judicial review, have been unavailing, the only recourse open to one who seeks to set aside a court order is an action for review in the High Court where grounds for such a proceeding exist. Without attempting a complete list, such grounds would include fraud or the discovery of new evidence.

[70] In Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62 at para. 60, the Court affirmed this description of collateral attack and reviewed the principles underpinning the rule:

[61] The rule is a judicial creation (which must therefore yield to a contrary legislative enactment) based on general considerations related to the administration of justice, as explained in Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629, at para. 72:

The fundamental policy behind the rule against collateral attack is to “maintain the rule of law and to preserve the repute of the administration of justice” (R. v. Litchfield, [1993] 4 S.C.R. 333, at p. 349). The idea is that if a party could avoid the consequences of an order issued against it by going to another forum, this would undermine the integrity of the justice system. Consequently, the doctrine is intended to prevent a party from circumventing the effect of a decision rendered against it. [Emphasis added.]

[62] In R. v. Litchfield, [1993] 4 S.C.R. 333, the criminal case referred to in Garland, the Court declined to apply the rule against collateral attack. In Garland itself, class action plaintiffs brought a claim against a gas company seeking restitution on the grounds of unjust enrichment of late payment penalties previously approved by the Ontario Energy Board. In its defence, the gas company argued that the claim for restitution was a collateral attack on the Board’s order. The defence failed.

[71] As noted by Madam Justice Arbour, writing for the majority in Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 63, the focus of the collateral attack rule is on attacking the order itself and its legal effect (para. 34).

[72] In her summary of the law of collateral attack, Arbour J. referred to R. v. Sarson, [1996] 2 S.C.R. 223, which is also raised in the applicant’s arguments in this case. The circumstances in that case are relevant to this application. Mr. Justice Sopinka, writing for the majority, held that a prisoner’s habeas corpus attack on his criminal conviction pursuant to a law later declared unconstitutional must fail under the rule of collateral attack and the doctrine of res judicata. The offender’s conviction was a matter of settled law as a judgment of a court of competent jurisdiction. Citing from Professor Hogg, Sopinka J. noted that only an absence of jurisdiction, rendering a decision a nullity, would expose a judicial decision to collateral attack (para. 35).

[73] Counsel for Mr. MacKenzie argues that the rule of collateral attack does not apply as it first requires that the impugned order be made by a court of competent jurisdiction. He says that Registrar Blok was not of competent jurisdiction to grant his order. Therefore, collateral attack cannot be raised.

[74] Donald Lange’s text The Doctrine of Res Judicata in Canada, 3rded. (Markham: LexisNexis, 2010) states at 464 – 465:

There are two kinds of lack of jurisdiction for the purpose of a judgment. An important distinction must be made between a judgment rendered where there is no jurisdiction, in and of itself, and a judgment rendered where there is no jurisdiction although jurisdiction is assumed to exist because of a set of facts which are assumed to exist. The former is a nullity and assailable in a subsequent proceeding as a defence to an estoppel argument. It is not viewed as a collateral attack on the judgment. The latter is only assailable by way of appeal. If it is attacked in a subsequent proceeding, it is viewed as a collateral attack on the judgment.

[75] As stated by the Manitoba Court of Appeal in Volhoffer v. Volhoffer, [1925] 3 D.L.R. 552 (M.B.C.A.) at 556 – 557:

From these authorities, the law would appear to be that, if a tribunal which has jurisdiction over a subject-matter, provided a given state of facts exists, makes an order in respect of that subject-matter in the absence of the existence of that state of facts, and, therefore, without jurisdiction, such order must be treated as valid and binding until it is reversed upon an appeal, and, generally speaking, it cannot be attacked in a collateral proceeding. But where the tribunal has not been given any jurisdiction over the subject-matter, no matter what state of facts may exist, an order made in respect of it is a nullity, and need not be appealed against, and its invalidity may be set up as an answer in any proceeding taken under it.

[76] I also note the British Columbia Court of Appeal’s findings in R. v. J.L.S., 2002 BCCA 174:

[36] The appellant argues that just as the Provincial Court has no power to issue injunctions, the Youth Court has no power to place young persons on recognizances.

[37] As counsel for the respondent has pointed out, the distinction between errors of law or fact on the one hand and errors of jurisdiction on the other is sometimes difficult to draw but, in the context of the rule against collateral attack, the distinction may be drawn by asking whether the judge who had the order under attack had the general power to make the type of order in question, even if he or she arguably should not have made the order in the particular circumstances of the case under consideration. If the question is framed that way, Mr. Ehrcke argued, then the issue is not whether Judge Lemiski should have placed the appellant on the recognizance nor whether he erred in law in doing so. Instead, the question is whether he lacked the power to place young persons on recognizances at all.

[38] While a Youth Court judge cannot order a young person to enter into a recognizance under s. 810 of the Criminal Code, Youth Court judges do have the power to place young persons on recognizances. Clearly they do so in the context of bail applications and s. 49 of the Young Offenders Act makes explicit reference to “a recognizance binding a young person”. In my view, the recognizance order made by Judge Lemiski falls into the category of an erroneous exercise of jurisdiction and, as such, would be immune from collateral attack. The proper forum in which to attack the order placing the young person on a recognizance was an appeal from the original order, not in proceedings commenced for breach of recognizance.

[39] As the order was immune from collateral attack, the appeal from Mr. Justice Romilly’s order must be dismissed.

[77] If Mr. MacKenzie was concerned about the jurisdiction of Registrar Blok, he could have raised that issue at the hearing of the matter or upon appeal. I agree with the submission of the applicant that he could have discovered this challenge by exercising reasonable diligence.

[78] It is inappropriate for this Court to allow a proceeding to continue on the basis the litigant has now come up with a constitutional argument six years later that attacks the legal basis of the original judgment, which obviously did not fall in his favour. He has squandered his right to appeal the decision for want of prosecution. That was the proper avenue for challenging Registrar Blok’s decision.

[79] It is also well established under the doctrine of res judicata that the courts will not permit the same parties to open the same subject of litigation in respect of a matter which the parties, exercising reasonable diligence, might have brought forward at the time. As stated by Madam Justice Newbury in Cliffs Over Maple Bay (Re), 2011 BCCA 180 at para. 28:

Although grounded in the same basic considerations, each form involves, or has traditionally involved, criteria that have been expressed in slightly different terms. The traditional criteria for cause of action estoppel, confirmed in Canada in Angle, supra, were summarized by Chief Justice Hewak in Bjarnarson v. Manitoba (1987) 38 D.L.R. (4th) 32 (Man. Q.B.) at 34, aff’d. (1987) 45 D.L.R. (4th) 766 (Man. C.A.), as taken from Grandview v. Doering [1976] 2 S.C.R. 621:

1. There must be a final decision of a court of competent jurisdiction in the prior action [the requirement of “finality”];

2. The parties to the subsequent litigation must have been parties to or in privy with the parties to the prior action [the requirement of “mutuality”];

3. The cause of action and the prior action must not be separate and distinct; and

4. The basis of the cause of action and the subsequent action was argued or could have been argued in the prior action if the parties had exercised reasonable diligence. [At para. 6; emphasis added.]

It is perhaps unnecessary to state that the doctrine contemplates two “causes” – the first having ended in a final judgment that bars a “second claim for the same cause”: see Mohl v. University of British Columbia, 2006 BCCA 70 at paras. 23-4. In this context, “cause of action” does not refer to the name or classification given to the wrong or remedy, but to a factual situation which entitles one to a remedy: see also Lange at 147; Comeau v. Breau (1994) 145 N.B.R. (2d) 329 (C.A.) at para. 18; and Letang v. Cooper [1965] 1 Q.B. 222 (C.A.) at 242-43.

[80] In Braithwaite v. Nova Scotia Public Service Long Term Disability Plan Trust Fund, 1999 NSCA 77 Mr. Justice Cromwell declined to strike out the action at the preliminary stage because he was concerned that it was far from clear, based on the incomplete record, if the matter was a collateral attack (para. 60). That is not a concern for me: I have the full factual record before me.

The Tort of Conversion

The tort of conversion was discussed in Ast v Mikolas 2010 BCSC 127 .

 

[125] The tort of conversion involves the wrongful interference with another person’s chattels such as taking, using or destroying the goods in a way that is inconsistent with the owner’s ownership of or title to the goods. See: Boma Manufacturing Ltd. v. Canadian Imperial Bank of Commerce, [1996] 3 S.C.R. 727 at para. 31.

 

[126] The three elements that must be proven to establish the tort of conversion are:

(a) a wrongful act by the defendant involving the goods of the plaintiff;

(b) the act must consist of handling, disposing, or destroying the goods; and

(c) the defendant’s actions must have either the effect or intention of interfering with (or denying) the plaintiff’s right or title to the goods.

 

[127] Conversion is a tort involving strict liability where even an innocent third party recipient of stolen goods may commit the tort of conversion. In MacKenzie et al. v. Blindman Valley Co-Operative Association Ltd., [1947] 2 W.W.R. 443, [1947] 4 D.L.R. 687 (Alta. S.C.), cited with approval in General Securities Ltd. v. Parsons, [1955] B.C.J. No. 22 (C.A.), Chief Justice Howson stated:

The principle under which the liability for conversion is determined is stated in the headnote of the report of the House of Lords decision in the Fowler v. Hollins case, supra, at p. 169: “Any person who, however innocently, obtains the possession of the goods of a person who has been fraudulently deprived of them, and disposes of them, whether for his own benefit or that of any other person, is guilty of a conversion, unless the possession was obtained by him as finder or as bailee, or by purchase in market overt or from an agent, so as to be protected by the Factors Acts.”

Passing of Executor’s Accounts

Passing of accountsThe following article is that of Master Young on the passing of executor’s accounts, as presented to the Wills and Trusts Subsection in April 2012.

Master Young ,described the registry procedure for probate grants. The initial vetting of probate applications goes to senior registry staff to ensure that all the formalities are completed. The master has to review all probate applications before the Deputy District Registrar signs the grant.

There were no concerns about the process raised by the registry. As most counsel know, when an application is bounced, a checklist is attached that indicates as how the application was deficient and counsel are encouraged when the application is re-submitted to include the checklist so that it goes back to the appropriate person who is familiar with the file.

If counsel have an application that is time sensitive in nature they are invited to indicate this in the Requisition or in a cover letter. State why it is urgent and it will be delivered directly to the Registrar for approval.

Further, if something in the application is odd, difficult, or questionable, include the details in a cover letter and possibly a supplemental affidavit to avoid having it returns by registry staff.

Passing of Executor’s Accounts

The formal passing of estate accounts is fairly rare as most are consented to.
The Rules of Court provide that the application for passing of accounts is by Rule 21-5(70)-(72) and in Form 106.
If you intend to give Notice of your application to pass accounts then follow Rule 8-1. An Application without Notice can be made under Rule 8-4 in which case the interested parties would receive notice after the order to refer the matter to a registrar is obtained.
If a beneficiary is requesting the passing of accounts they may do so by filing a Petition pursuant to Rule 16.
In some circumstances the personal representative may wish to formally pass accounts in situations where the accounts are not opposed by any party. This can be done by Notice of Applications using the Rule 8 procedure. The standard form 106 account will be filed but in the
event that you will be requesting higher than average executor or legal fees this affidavit should contain further information to satisfy the master that the higher fees are justified. This additional affidavit material can be included in the form 106 or in a separate affidavit. Even if everyone consents, the master will want evidence to justify the higher fee.

Applications for a Formal Passing of Accounts before the Registrar

When the accounts are opposed, a registrars hearing will be required.
The first step it to obtain an order from the master setting the matter down for a registrar’s and setting out the terms of the reference to the registrar. This application in master’s chambers can be made without notice because the interested parties will be notified of the registrar’s hearing. The method of service of the interested parties may be a term that you ask the master to set.
You should decide whether to ask the master to order that the registrar has authority to certify her findings or not. If the findings are certified by the registrar at the time the report is filed, then the findings become a court order and do not require a third court appearance to certify the findings. This power to certify does save the estate some time and money but as was pointed out by one attendant at the meeting it does limit the interested parties’ opportunities to challenge the registrar’s findings. Essentially, you will be removing one level of appeal. On reflection, the master would likely be willing to grant the power to certify if all interested parties had notice of that first stage application but may be less likely to do so if the first order is applied for without notice.
In situations where accounts are not consented to but you are unable to ascertain what the issues are, you are encouraged to set down a pre-hearing conference first.
You may request leave to leave to attend a prehearing conference by phone. This request will ordinarily be approved. However, if the other party is self represented it may be advisable to appear in person so you have an opportunity to talk to the person prior to attending the prehearing conference. It is the master’s observation that in-person conferences are always more effective than telephone conferences, but of course, they are more time consuming and expensive for the parties.
At the prehearing conference, the Registrar will determine the length of time required for the hearing. If it is more than a half-day, a pre-conference is mandatory. She may make the following orders or directions:
o An order for production of documents in advance of the hearing date. The registrar will generally wish to see the legal account as well as the executors accounts in cases where the executors remuneration is being challenged or is in the higher end of the range;

o Ascertain what witnesses will be called and ensure adequate time is reserved for the hearing.

o Confirm if evidence is by affidavit (Form 106) or viva voce; generally counsel will want to have the personal representative take the stand and give some evidence in chief even if affidavits are filed.

The Standard Hearing Procedure

Give your opening statement to focus the registrar’s attention on what the issues are, who the witnesses are and etc. You may ask to have witnesses excluded from the courtroom during testimony of earlier witnesses
There is no requirement for filing a Chambers Record because registrars hearing do not fall under Rule 8 but if you will be referring to a number of documents then a document binder is highly
recommended. You are also encouraged to bring an entire exhibit book for the witness who is in the witness stand, so that the court is not passing their book back and forth.

To prepare your personal representative in files where you know from the start that matters will be opposed, advise your personal representative to keep a journal log and write all their estate activities in it. Caution them that the journal may have to be disclosed to the other parties so it should not contain anything that they do not wish to be read out in court..
Be prepared to make your argument for costs at the end of the hearing. If the estate was put to unnecessary or unreasonable expense you may submit that the beneficiary causing the expense and not the estate should bear some of the costs.
• In a simple matter you may wish to bring a draft report.

• If there is no Order for certification then your next step is to make a chambers application before a
judge to certify or vary the registrars report and recommendations and to discharge the personal
representative. A notice of application must be filed and served again using Rule 8 procedure and
a Chambers Record. The report of the registrar should be attached to the notice of application
which will be served on all interested parties. If you seek to vary the recommendations then the
terms you wish to vary and the order you seek should be clearly set out in the Notice of
Application. An affidavit supporting the application is required. You are directed to the CLE manual
“Practice before the Registrar” which sets out the procedure and precedents.

Seeking Court Directions By The Executor/Administrator

Executors often do not know what to do and may be faced with decisions that are difficult to make without Court guidance. Where there is no certainty in the law, and no consensus amongst the beneficiaries affected, the Executor has recourse to the court by way of an application for directions under s. 86 of the Trustee Act.

Chapter 9 of the BC Probate and Estate Administration Practice Manual (CLE, 2nd Ed), gives examples of the court declining to give directions include:

determining what property should be included in the estate;
the time or price of the sale of shares;
the distribution of the estate on an intestacy; and
whether a respondent was the common law spouse of the deceased.
In Re Lohn Estate (1991) 41 E.T.R. 159 (B.C.S.C), the court declined making an order approving a scheme to minimize taxes and subsequently refused to allow the trustees to “unload the responsibility they have assumed, as trustees, upon the court”.

In Re Royal Trust Co. (1962), 39 W.W.R. 638 (B.C.S.C), the court held that its jurisdiction is restricted to questions of “management or administration” and will not determine question of ownership or other matters “affecting the rights of the parties”.

Examples of situations in which the court did give advice and directions include:

the proper disposition of interest earned on a hold back for taxes;
the extent of a discretion or power;
determining the beneficiary under an RRSP where there was a general revocation clause in the will;
approving a resettlement of a trust;
whether terms of a will were against public policy;
whether a trust was charitable;
whether the doctrine of acceleration applied in a disclaimer situation; and
where trustees cannot reach a unanimous decision.

 

Res Judicata, Issue Estoppel and Abuse of Process

res judicata

 

 

McIntyre V Richardson Estate 2012 BCSC 1347 provides a good summary of the law of the related legal principles of res judicata, issue estoppel, and abuse of process .

They were also  thoroughly canvassed by Madam Justice Ballance in Tylon Steepe Homes Ltd. v. Pont, 2011 BCSC 385 at paras. 52 to 56:

[52] The doctrine of res judicata is a time-honoured cornerstone of Canadian justice. Where a cause or a fundamental issue has been decided, it is said to be res judicata and, absent special circumstances, is precluded from being adjudged a second time. When res judicata applies, a litigant is stopped by the prior suit, from proceeding in the subsequent action. The maxim has been traditionally regarded as an exclusionary rule of evidence. The paramount policy considerations include the avoidance of duplicative litigation, potential inconsistent results and inconclusive proceedings. Finality to litigation is the prime objective. (See generally: Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248 [Angle]; Grdic v. The Queen, [1985] 1 S.C.R. 810 [Grdic]; Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 1 S.C.R. 460 [Danyluk]).

[53] Res judicata takes two distinct forms: issue estoppel and cause of action estoppel, indicating that there can be estoppel with respect to the entire cause or a discrete issue(s). Much of the judicial analyses of the doctrine spring from a scenario where it is a plaintiff who is attempting to relitigate a matter; however, the principles apply, with obvious modifications, to the attempted recycling of a defence.

[54] Generally speaking, the authorities require fastidious adherence to the constituent elements of res judicata in order to permit its application. However, even where the requisite ingredients are present, the court retains a residual discretion to decline to apply it if doing so would cause unfairness in the particular case: Danyluk at para. 33; British Columbia (Minister of Forests) v. Bugbusters Pest Management Inc. (1998), 159 D.L.R. (4th) 50, 50 B.C.L.R. (3d) 1 (C.A.) [Bugbusters, cited to D.L.R.]. As Finch J.A. (now the Chief Justice) emphasized at para. 32 in Bugbusters, the doctrine “inevitably calls upon the exercise of a judicial discretion to achieve fairness according to the circumstances of each case”.

[55] The three-fold requirements which must be established in order to successfully invoke issue estoppel are:

(1) that the same question has been decided and was fundamental, as opposed to collateral or incidental, to the decision;

(2) that the decision in the first proceeding said to create the estoppel was final; and

(3) that the parties to the first proceeding or their privies are the same persons as the parties, or their privies, to the subsequent proceeding:

(See Angle; Grdic and Danyluk).

[56] The “same question” test is a crucial element and a focal point of both types of estoppel under the res judicata umbrella.

[44] Later in her reasons, Madam Justice Ballance addressed the relationship between res judicataand abuse of process. She said this at paras. 79 to 80:

[79[ In response to perceived difficulties in demanding strict adherence to the constituent elements of res judicata, modern Canadian courts have developed the independent but related concept of abuse of process as a means of barring relitigation where permitting it to proceed would offend vital principles such as judicial economy, consistency, finality of legal disputes, and, perhaps most importantly, the integrity of the judicial decision-making process. Abuse of process is a flexible doctrine that finds its roots in the Court’s inherent residual discretion to prevent an abuse of its process.

[80] The concepts of res judicata and abuse of process are inter-related and share several overlapping features and common policy objectives. They are each extraordinary remedies to be applied sparingly: Chapman. Indeed, the decision in Saskatoon ultimately rested on abuse of process. It is key to appreciate that with respect to abuse of process the proper focus is on the integrity of the administration of justice and not the motive of the parties in terms of their treatment of the judicial process.

[45] Ballance J. cited the decision of Madam Justice Arbour in the leading Supreme Court of Canada decision concerning abuse of process, that is Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at para. 43:

…the primary focus of the doctrine of abuse of process is the integrity of the adjudicative functions of courts. …the focus is less on the interest of parties and more on the integrity of judicial decision making as a branch of the administration of justice…. When that is understood, the parameters of the doctrine become easier to define, and the exercise of discretion is better anchored in principle.

Only Committee Under Patients Property Act Can Sue On Behalf of the Patient

Daum Estate v Sovereign General Insurance Co. 2012 BCSC 1052  discusses how only the committee of a patient under the Patients Property act can enforce the provisions of a contract on behalf of the patient, and no one else.

The Public Guardian and Trustee took control of the assets of Carole Barbara Daum including her  house.

On assuming control of the assets, the Public Guardian purchased a policy of insurance from the defendant insurance company.  The policy provided coverage in the event of damage to the house or to personal property and provided for additional living expenses.

The house was destroyed by fire on February 16, 2011, a year after her death.

The applicant  is her son and the administrator of her estate.

All the property was lost in the fire.

Tyrone Daum applies for an order that the policy of insurance “covers … the immediate family of Carole Barbara Daum, including her two sons Jeffrey Daum and Tyrone Daum” and therefore he asks the court for an order that the defendant pay to the Estate of Carole Barbara Daum $78,220 plus court ordered interest in accordance with a proof of loss sworn on February 15, 2012.

On the recommendation of an adjuster the defendant insurer paid the limits of coverage for the loss of the house and paid $3,960 to the estate of the late Carole Barbara Daum as an indemnity for the personal property which the adjuster advised belonged to the estate of Ms. Daum and which was lost in the fire.

The defendant declines to indemnify Tyrone Daum for the loss of other personal property belonging to him and for the additional living expenses he claimed in the proof of loss.

The claim was dismissed.

The policy of insurance purchased from the defendant by the Public Guardian states that “Only the person(s) named on the Coverage Summary Page(s) may take legal action against us”.  The word “us” is defined to mean the defendant insurance company.  On the Coverage Summary Page only the Public Guardian and Trustee is named.

The Public Guardian and Trustee alone was entitled to sue the defendant to enforce the policy.  This is consistent with the usual rule that only a party to a contract is entitled to sue on it.

Ms. Daum was a patient within the meaning of the Patients Property Act, R.S.B.C. 1996, c. 349 and on becoming Ms. Daum’s committee the Public Guardian and Trustee had all the rights, privilege and powers with regard to the estate of Ms. Daum as Ms. Daum would have if she had been of sound and disposing mind. 

The Public Guardian and Trustee was entitled to manage the affairs of Ms. Daum and to enter into contracts for that purpose.

Section 22(1) of the Patients Property Act precludes any person other than the committee from pursuing an action on behalf of a patient.  Rule 20-2(2) precludes a person under a legal disability from pursuing an action in his or her own name. I have no doubt the intention of the parties to the insurance contract was that the right of action was vested in the Public Guardian and Trustee alone.  Ms. Daum never had the right to sue on the policy.  Furthermore, even if the late Ms. Daum had enjoyed a right of action it would have been to recover an indemnity only for loss of property she owned.

– See more at: http://www.disinherited.com/blog/only-committee-under-patients-property-act-can-sue-behalf-patient#sthash.WTkizwSJ.dpuf

Court Costs In Estate Litigation

 Court costs in EL

Court Costs In Estate Litigation:

Jung v. Lee Estate, [2007] B.C.J. No. 2592 provides a useful summary of costs in estate litigation:

The costs follow the event unless the court otherwise orders.
If the cause of the litigation originated from the conduct or errors of the testator (i.e. unclear wording or validity of the will), then the costs of all parties will generally be paid from the estate on a full indemnity basis.
If the action relates to questions of capacity or allege undue influence or fraud, the court will not normally make an order for costs against the unsuccessful party.
Where the proceedings are adversarial in nature (relief litigation) costs follow the event.
All cost awards are subject to the court’s discretion and an overriding test of reasonableness.

The Maxim “Falsa Demonstratio”

The phrase falsa demonstratio (non nocet cum de corpore constat), is a legal maxim that means a false description doesn’t void a document if the intent is clear.

It is sometimes used to correct an obvious mistake.

The maxim falsa demonstratio, defined in Black’s Law Dictionary, 8thed by Bryan Garner (St. Paul, MN: Thomson West: 2004) as follows:

A false designation; an erroneous description of a person or thing in a legal instrument. Generally, a simple error in description, grammar, or spelling will not void an instrument or even a single provision in it (such as a bequest by will).

 

The principle of falsa demonstratio non nocetmeans that if, on considering the language of a will with the aid of any admissible extrinsic evidence, the court comes to the conclusion that the testator intended to pass something and can determine what that something is, then the fact that the testator gave it a wrong description in his will does not prevent the will taking effect in regard to the subject matter intended by the testator. The principle may be applied in whatever part of the description the error occurred …

“Thus, if T makes a specific gift of certain stock, and T at the date of his will possessed no such stock but possessed other stock which the court decides was meant, the latter stock passes under the gift despite the false description.

 

“Generally, full effect will be given to all terms of a description, whether general or specific. In some cases, one of the terms used may describe the property with certainty, for example, the metes and bounds description, and the rest add a description which is not true, for example, a wrong lot number. In such a case, the untrue portion will be rejected. This is the maxim,falsa demonstratio non nocet.

“Therefore, where a description of lands included the qualifying words ‘known as the Cornish town reservation’ and they were inaccurate, they were rejected as a falsa demonstratio.

“In (a case known as) Pitman v Henley, the vendor agreed to sell a field. In the deed, the field was described as being 4.5 acres, when in fact it was nine acres. The vendor later claimed that only 4.5 acres were conveyed. In finding that the whole field had been conveyed, the Court stated that the metes and bounds description which was accurate, governed, and the stated number of acres was rejected as a falsa demonstratio….”

Lawyers Duty To Be Civil to The Court, Opposing Counsel, and Parties

lawyers civilityA Lawyers Duty To Be Civil to The Court, Opposing counsel and the  Parties

What other occupation addresses their worthy court room opponent as My Learned Friend or simply My Friend?

Civility is considered an essential quality in how disputes are dealt with in the justice system.

Four reasons are often given:

The harm to the client’s case if counsel is distracted from it by having to defend himself/herself from personal attack.
If the trial isconducted in an atmosphere of hostility, this also distracts the trier of fact from the real issues in the case.
It can lengthen and delay court proceedings.
It undermines public confidence in the administration of justice.

In Regina v Dunbar, 2003 BCCA 667, the Court of Appeal reported counsel for the appellants to the Law Society for misconduct in the conduct of a series of appeals. The Court had this to say about the conduct that led them to take that step:

[330] These reasons for judgment cannot be concluded without some comment on the conduct of counsel for the four appellants; Mr. X. We have concluded that none of the four cases raised any meritorious ground of appeal. If that were all there was to these appeals, the court would have no criticism of counsel’s conduct. The administration of justice depends upon the willingness and ability of counsel to advocate difficult cases, and to raise new arguments, without fear of personal consequences. As has aptly been said, some of the best counsel work has been done in a losing cause. The courts, and public confidence in the administration of justice, depend upon counsels’ integrity, independence and courage. It is counsels’ duty to represent the unpopular client or cause by all lawful means, including the presentation of novel or innovative arguments.

[331] Regrettably, in this case, counsel’s zeal blinded him to his professional responsibilities. Mr. X presented, and relied upon, affidavit material that is unworthy of any lawyer. Our reasons show these affidavits are replete with inadmissible hearsay, opinions, speculations, argument, and the irrelevant. The affidavits are rambling, repetitive and disorganized. They contain serious allegations of unprofessional conduct and substance abuse, against another lawyer or former lawyer, all of which allegations were unfounded.

 

The Supreme Court of Canada in Dore v Barreau du Quebec 2012 SCC 12, called for lawyers to work with “dignified restraint” :

 

]”Lawyers potentially face criticisms and pressures on a daily basis. They are expected by the public, on whose behalf they serve, to endure them with civility and dignity. This is not always easy where the lawyer feels he or she has been unfairly provoked, as in this case. But it is precisely when a lawyer’s equilibrium is unduly tested that he or she is particularly called upon to behave with transcendent civility. On the other hand, lawyers should not be expected to behave like verbal eunuchs. They not only have a right to speak their minds freely, they arguably have a duty to do so. But they are constrained by their profession to do so with dignified restraint”

Waiver of Privilege

 

 

waiverWaiver of Privilege

Generally speaking, any communications between a client and his or her lawyer are confidential and privileged. There are exceptions but this is the general rule, and through various means, the privilege can be “waived” , so that the other side can investigate the various documents or communications that were in issue.

 

[100] While the safeguards afforded to solicitor-client privilege are fundamental to the Canadian justice system, the privilege is not immutable. In S. & K. Processors Ltd. v. Campbell Ave. Herring Producers Ltd. (1983), 45 B.C.L.R. 218, 35 C.P.C. 146 (S.C.), McLachlin J. (as she then was) discussed the waiver of privilege at 220:

“Waiver of privilege is ordinarily established where it is shown that the possessor of the privilege:

(1) knows of the existence of the privilege; and

(2) voluntarily evinces an intention to waive that privilege.

However, waiver may also occur in the absence of an intention to waive, where fairness and consistency so require. Thus waiver of privilege as to part of a communication will be held to be waiver as to the entire communication. Similarly, where a litigant relies on legal advice as an element of his claim or defence, the privilege which would otherwise attach to that advice is lost [citation omitted].”

[101] Privilege can be waived by implication. Waiver by implication is addressed in Sopinka, Lederman & Bryant, The Law of Evidence in Canada, (2d) (Toronto: Butterworths, 1999) at 758:

As to what constitutes waiver by implication, Wigmore said:

Judicial decision gives no clear answer to this question. In deciding it, regard must be had to the double elements that are predicated in every waiver, i.e., not only the element of implied intention, but also the element of fairness and consistency. A privileged person would seldom be found to waive, if his intention not to abandon could alone control the situation. There is also the objective consideration that when his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder. He may elect to withhold or to disclose, but after a certain point his election must remain final.

[102] A party may waive privilege in an affidavit. In Souter v. 375561 B.C. Ltd. (1995), 15 B.C.L.R (3d) 213, 66 B.C.A.C. 19 (C.A.) [Souter], the defendant swore an affidavit explaining that certain errors in an affidavit were made by his solicitor. In holding that privilege had been waived, Goldie J.A. said at paras. 21-23:

Now, it is clear by this assertion Mr. Nonis deflects responsibility for the substance of the earlier affidavits, insofar as they contain the assertion that monies were advanced by the plaintiff to 561, from himself to the solicitor in question.

By necessary implication he is saying: “I gave the solicitor the correct instructions. He was responsible for a mistake which misrepresented the true state of affairs.” It does not require extended discussion to conclude that when a party identifies his solicitor as responsible for a material mistake in an affidavit sworn by that party and claims solicitor-client privilege in respect of his knowledge and that of the solicitor, he is using the confidentiality protected by privilege as a sword rather than as a shield.

In my view, this misconceives the principle which the courts have followed for centuries in protecting the confidentiality of discussions between solicitor and client, a protection considered essential to the proper administration of justice. [citations omitted]

[Emphasis added]

[103] Once a party waives solicitor-client privilege in one proceeding, that waiver applies to a second related proceeding in which the party who waived privilege is also a party: National Bank Financial Ltd. v. Potter, 2007 NSSC 22, 251 N.S.R. (2d) 124; Le Soleil Hotel & Suites Ltd. v. Le Soleil Management Inc., 2007 BCSC 1420, 161 A.C.W.S. (3d) 400.

As noted in Souter, solicitor-client privilege is a shield, not a sword.