Solicitor Client Privilege

Solicitor Client Privilege

 

[22] Recently the Supreme Court of Canada has said that to ensure public confidence, access to justice, and the quality of justice within Canada, solicitor-client privilege must be as close to absolute as possible: Blood Tribe Department of Health v. Canada (Privacy Commissioner), 2008 SCC 44 at U 9.

[23] Solicitor-client privilege is substantive law applicable to all interactions between client and lawyer when the lawyer is providing legal advice or acting as a lawyer. The privilege belongs to the client and not the lawyer and a court will not permit a solicitor to disclose a client’s confidence: Blood Tribe, atfl 9, Andrews v. Law Society (British Columbia), [1989] 1 SCR. 143 at p. 173.

[24] It follows that a solicitor is legally and ethically bound to protect the privileged information that belongs to his or her client, and it is improper for a lawyer not to claim it without showing that it has been properly waived: Bell v. Smith, [1968] S.C.R. 664, Lavalee v. Canada (Attorney General), 2002 SCC 61 at fl 24 and 35. A breach of confidentiality can give rise to liability for damages or an injunction: Ott v. Fleishman (1983) 46 B.C.L.R. 321. Ipso facto, a breach of solicitor-client privilege can give rise to the same liability.

[25] Solicitor-client privilege survives the death of the client and inures to the next of kin, heirs or successors in title: Geffen v. Goodman Estate (1991), 81 D.L.R. (4th) 211 at U 55-57. [26] Of course, in the instant case, the Plaintiffs say that solicitor-client privilege has been effectively waived by the Estate. They cite authorities such as Bank Leu AG v. Gaming Lottery Corp., [1999] O.J. No. 3949, affd [2000] O.J. No. 1137 (Div. Ct.) and Monco Holdings Ltd. v. B.A.T. Development Ltd. 2001 ABQB 133 for the proposition that where a client impugns the conduct of his solicitor as negligent there is an implied waiver of solicitor-client privilege. Thus, commencement of the action by the executor of the will against the testator’s solicitor is waiver of the privilege and should be sufficient for the solicitor to waive the privilege and does so.

Contingency Fee Agreement Not a Lottery

Contingency Fee Agreement Not a Lottery

Mide-Wilson v Hungerford Tomyn Lawrenson and Nichols 2013 BCSC 374 is a very interesting case relating to the intricacies of the “poor man’s key to the courtroom”, the contingency fee agreement is not a lottery for the lawyer.

This is where the lawyer and the client agree to enter into a fee arrangement based on a % of the recovered amount, to be the fee, rather than the traditional pay as you go hourly rate, that no one, client and lawyer alike, prefers anymore.

On December 8, 2008 the date the fee agreement was entered into::

a) Everyone believed they were in the Action for the long-haul;

b) Home had told Rennie on October 17 that he was not interested in paying

Ms. Mide-Wilson anything;

Ms. Mide-Wilson was not interested in a settlement wherein she was paid money by Home and Gibson; she wanted the company back;

A significant amount of legal work would be necessary on a go forward basis;
and

e) The value of the assets was somewhere in the $100 million range.

They settled on a %20 fee agreement, which resulted in the lawyers recovering a $17 million fee, which the client refused to pay on the basis that it was unreasonable.

The supreme court ultimately agreed and reduced the account to $5 million.

On a taxation of the account prior to the supreme court hearing,  the Registrar had  allowed $9 million, but on appeal, Justice Goeppel  of the Supreme Court stated :

“In the circumstances of this case, I find that $9 million is not a proper fee for the work actually done and does threaten the integrity of the profession. While the Solicitors took on a case in which there was great risk, the case and the risk ended within months of the commencement of the retainer.” and “In order to maintain the integrity of the legal profession, a legal account must have some relationship to the actual work carried out. To allow the fees awarded in this case given the work the Solicitors actually did would call into question the integrity of the profession.”

[180] A contingency fee agreement is not a lottery ticket. Success in the action does not guarantee a fee in the amount set out in the agreement. Even if the agreement was neither unfair nor unreasonable at the time it was entered into, the final account must be reasonable and proper given the services provided and the risk undertaken.

Having determined that the CFA was not unfair or unreasonable under the circumstances existing at the time it was entered into, the Solicitors’ account remains subject to review pursuant to the provisions of s. 70 of the LP A. A contract can itself be fair and reasonable and yet the fees purportedly charged pursuant to it may not be recoverable: Doig v. Davidson Muir, 106 B.C.A.C. 80,

48 B.C.L.R. (3rd) 53 at para. 19. As noted in Coad v. Rizk (1999), 68 B.C.L.R. (3d) 340 (S.C.), the provisions of s. 68 and 70 are not mutually exclusive, but work in concert to ensure that both the initial fee agreement and what is subsequently billed pursuant to that agreement are appropriate.

[154] In this case the registrar dismissed the application to cancel the CFA. I have upheld that decision. The matter now to be determined is the proper fee to which the Solicitors are entitled.

[155] In Commonwealth Investors Syndicate Ltd. v. Laxton (1994), 94 B.C.L.R. (2d) 177 (C.A.) [Commonwealth No. 2], the court had to wrestle with the reasonableness of the fee that a contingency contract had generated. McEachern C.J.B.C. said at para. 25:

I take the foregoing to mean that a contingency fee agreement under the old regime had to be reasonable in the result. This brought into play the well established principles which generally govern the fixing of a lawyer’s fee such as those stated in Yule v. Saskatoon (City) (1955), 1 D.L.R. (2d) 540, [17 W.WR. 296], (Sask. C.A.), and, of course, those further considerations that apply only to contingency fees. These include at least the risk of there being no recovery at all and the expectation of a larger fee based upon results than would be appropriate in non-contingency cases.

[183] While the terms of the contract set the maximum fee, the proper fee is ultimately determined by a consideration of the factors set out in s. 71(4) augmented as noted in Commonwealth No. 2 by those further considerations that apply only to contingency fees including the risk of no recovery and the expectation of a larger fee based upon results than would be appropriate in non-contingency cases. Regardless of the terms of a contingency fee agreement, those factors and considerations cap the amount that lawyers can charge. A lawyer is never entitled to more than a proper fee.

Consolidation For Trial of Separate Actions

consolidateOccasionally parties commence court actions relating to the same facts and issues, and the courts will under certain circumstances order that they be consolidated for trial and pre trial matters.

Situations arise on occasion in litigation where one court action is commenced that has some overlapping “interest” with another case, and one of the parties moves to have them joined together for one common trial rather than two separate ones.

As much as that simple proposition might make common sense, there are also situations where while there might be two court actions between the same or other parties, the case to one of the parties party may be appear to be more of a “square peg in a round hole”, and thus resist the application to join them together.

 

The leading cases on the issue in BC are Merritt v Imasco Enterprises Inc, (1992) BCJ 160 BCSC, and Peel Financial Holdings Ltd v western Delata Lands partnership 2003 BCSC 784:

The criteria are:

1. Do common claims, disputes and relationships exist between the parties;

2.Are the actions sought to be consolidated so interwoven as to make separate trials at different times before different judges undesirable and fraught with problems and economic expense;

a) Will the order sought create a savings in pre trial procedures;

b) will there be a reduction in the number of trial days taken up by the trials being heard at the same time;

c) What is the potential for a party to be seriously inconvenienced by being required to attend a trial in which that party may only a marginal interest

d) will there be any real savings in expert’s time and witness fees

e) Is one of the actions at a more advanced stage than another

f) Will the order result in a delay of the trial of one of the actions and if so, does any prejudice which a party may suffer as a result of that delay overweigh the potential benefits which a combined trial might otherwise have

g) IF the actions are not consolidated, will this lead to inconsistent results

 

In Peel Financial Holdings , the court said at para 27 that consolidation may be appropriate when parties are the same ad issues are in common so that the disposition of one action necessarily disposes of the other

Expert Opinions in Records are Generally Inadmissible Evidence

Expert Opinions in Records are Generally Inadmissible Evidence

Expert opinions contained in the hospital records are generally inadmissible Reid v Balcaen  2003 BCSC 1533, and Egli v Egli 2003 BCSC 1716.

This is because hearsay evidence is not admissible for the truth of the contents unless it can be admitted by applying the proper legal  principles.

In the Reid case,  the plaintiff has applied to introduce into evidence hospital records from a hospital.

These records have been certified by the appropriate records officers from the respective institutions.  The plaintiff relied on s. 51 of the Hospital Act, R.S.B.C. 1996, c. 200, which provides as follows:

51(1) A record regarding a patient that is prepared in a hospital by an employee or by a practitioner is the property of the hospital.

(2)   A copy of a hospital record certified to be true and correct by the administrator of the hospital or by another officer of it is admissible as evidence in a court without proof of the official position or signature of the administrator or officer.

[4]  Within the records of the hospital, there is a consultation report prepared by a doctor specialist.

The defendant objects to the introduction into evidence of that report on the basis that it is an expert opinion and the plaintiff has not complied with the requirements of Rule 40A of the Rules of Court.

[6]            Interpreting the section in the manner set out above is to interpret it in a manner that is consistent with the approach that has been taken by courts in this province to s. 42 of the Evidence Act, R.S.B.C. 1996, c. 124, which deals with the admissibility of business records and is often relied upon to ground the admissibility of clinical records, a close cousin of hospital records.  Although there are limitations or safeguards built into s. 42 of the Evidence Act that are not found in s. 51 of the Hospital Act (for example, the former section is limited to matters “in which direct oral evidence of a fact” would be admissible), there is no reason, particularly in light of the principled approach to hearsay evidence that has been endorsed by the Supreme Court of Canada, to approach these two sections differently.

[7]            In McTavishv.MacGillivray (18 July 1997), Vancouver Registry No. D944248 (B.C.S.C.), Burnyeat J. had occasion to consider s. 42 of the Evidence Act and its application to clinical records.  He reviewed the rationale underlying the common law exception to the hearsay rule as defined by Mr. Justice Hall in Ares v.Venner, [1970] S.C.R. 608.  In doing so, he noted that the foundation for that exception lay in the twin dictates of Wigmore that ground the principled approach to the hearsay rule that has been embraced by the Supreme Court of Canada.  Those twin dictates are a circumstantial guarantee of trustworthiness and necessity.  As to the relationship between the Rules and s. 42 of the Evidence Act, Burnyeat J. concluded at para. 11 that:

Section 42 should not be used to avoid the provisions of Rule 40A, especially where potential witnesses are otherwise available and the only “necessity” is that there has not been compliance with Rule 40A.

[8]            In my view, there is no reason to give s. 51 of the Hospital Act any different treatment than that accorded to s. 42 of the Evidence Act.  Indeed, there are compelling reasons for treating them similarly.

[9]            Returning to the facts of this matter, I find that the consultation report of Dr. Watson is admissible, provided it is stripped of those portions that are properly viewed as expert opinion or are otherwise inadmissible.

Judge Seeks To End Long Running Estate Trial of Thirty Court Actions

Long Running Estate Trial

In a case he called “Ontario’s long running estate trial legal drama,” a Superior Court judge has declared a plaintiff who launched dozens of lawsuits in an estate dispute a vexatious litigant.

The property at 140 Dunvegan Rd. in Toronto is at the heart of the long-running legal battle over the estate of Edward Assaf. Photo: Laura Pedersen

William Assaf has been fighting for a bigger share of his father’s estate since Edward Assaf died in 1971. According to a recent ruling, his battles were “motivated by a belief that a terrible injustice had been done by his father to his mother, who he felt had been abused in life and cruelly treated in the will.”

There have been more than 30 lawsuits and over 100 different court orders in the matter, according to the March 6 ruling by Justice Edward Morgan. Assaf has brought motions against the administrator of his father’s will, the current owners of the elder Assaf’s estate, and a lawyer involved in the case. Courts in several instances have ruled his motions were meritless.

In the absence of action to control future claims, Assaf “will remain a Pirandellian character in search of an author, re-enacting past struggles in a dramatic loop he cannot seem to escape,” wrote Morgan in Burton v. Assaf.

Judges who presided over previous motions in the same matter described the Assaf litigants using similar language. Former Superior Court justice David Cromarty said the litigants were “figures in a classical tragedy, bent upon destroying that which surrounds them, especially their monetary inheritance.” That was back in 1980 in Assaf v. Koury that dealt with an application by Vivian Assaf against her late husband’s estate.

Attempting to bring the legal saga to a close, Morgan said the court has to play the role of gatekeeper to protect the publicly funded justice system. “William Assaf has persistently attempted to re-litigate issues already determined by the court,” wrote Morgan. “He has brought claims and appeals that no reasonable person could expect to win. What’s more, he has initiated actions, motions, and appeals that contain no legally recognizable claim and that do little more than oppress and harass his opponents with repetitions of prior claims.”

The Assaf family’s litigation is “long and painful,” Morgan said, adding the matter is “so extensive that it would be counter-productive to attempt to trace it all.”

The case relates to the will Assaf’s father left upon his death that favoured his daughter, Barbara Laroq, while leaving only small annual payments to Assaf and his mother Vivian. Assaf produced a different will and “claimed to have found [it] among his father’s possessions,” wrote Morgan.

“The found will was held to be a forgery.”

Assaf was convicted of uttering a forgery and sentenced to four years in jail, a number later reduced to 2-1/2 years. The executor of his father’s estate, Robert Bosada, was also found to have forged a document at one point. The judge who presided over that case admonished Bosada but said his actions had no bearing on the ownership of the property.

“In any case, the continued litigation of issues respecting the property and the damages claims in the action would certainly amount to an abuse of process,” wrote Morgan, whose alphabetical list of the claims to the property extends to the letter Y.

Assaf “has attempted to appeal virtually every ruling, often simply for the sake of filing an appeal and then having it dismissed for failure to perfect,” wrote Morgan, adding Assaf has also consistently failed to pay costs awarded against him.

In addition to their own family members, Assaf and his mother brought claims against the purchasers of the property in question. The owners of the home in Toronto’s Forest Hill, Mary Matthews and James Archer-Shee, have, “doubtless to their lasting regret, stumbled into the Assaf family maelstrom,” wrote Morgan.

Although Matthews and Archer-Shee are the rightful owners of 140 Dunvegan Rd., Assaf and his mother have challenged their ownership since their 1998 purchase, Morgan added.

Assaf also sued Bernard Burton, the lawyer who once represented Bosada.

“In about 2003 or 2004, somewhere in that area, we had been in court about 135 times,” says Burton.

“Imagine this, including appeals to the Court of Appeal,” he adds.

While family law matters often lead to heated disputes, estates litigation “in some ways can be even worse,” says Toronto lawyer Garry Wise.

“Sibling rivalries go back to the beginning of time; they’re hugely entrenched,” he says.

“When parents make choices in the way they construct their wills and plan for their estates that leave one child or more than one child feeling out of the favoured circle, it’s just a prescription for this stuff to go on and on and on.”

There’s a cautionary tale for lawyers in cases like this one, says Wise. When they help clients draft a will, they should warn them about what could happen if they exclude someone or favour one child over others, he notes.

“The vast majority of their estate could get swallowed up by litigation if they don’t act in a way that is perceived as even-handed.”

There are no administrative controls in the justice system that stop persistent litigants from suing repeatedly, says litigation lawyer James Morton.

“In Ontario, pretty well anyone is allowed to sue anyone for anything. The controls on that are costs and in an extreme case an order, as in this decision, for declaring someone a vexatious litigant. There is nothing administrative to stop me from suing again and again and again for the same relief against the same people.”

Although courts have discretion to use the vexatious litigant label on their own accord, it’s unusual for them to make such an order unless there’s an application asking for it, says Morton.

“The court upon seeing an abusive process could make an order to ensure that things proceed in an orderly fashion without useless motions, but it would be very, very, very unusual for the court to take such a dramatic step without anyone asking,” he adds. “The role of a judge or judicial officer is not to litigate for people; it is to decide questions they’re asked.”

At a time when courts are seeing greater numbers of self-represented litigants, Wise says this case is a caricature of what he calls a broader problem of loose gatekeeping in Ontario’s courtrooms.

“I think there’s a question that’s bound to be asked sooner rather than later about our court system as a whole, which is: How much longer will our country be able to afford to maintain a robust court system to all to deal with what are essentially personal and private disputes?” he asks.

As a fundamental tenet of democracy, tinkering with the court system isn’t easy, says Wise. But “at a certain point, we are going to have to as a society draw lines,” he adds.

For his part, Morgan noted the vexatious litigant declaration “does not deprive a person of access to justice; rather, it provides extra scrutiny by the court, and impresses potential claims with a form of orderliness without prejudicing their merits.”

Still, Morton calls the vexatious litigant declaration an effective deterrent. “In my experience, when you have a vexatious litigant, it is extremely rare that they would bring an application or a claim that the judge will permit to go forward,” he says.

But Burton says an appeal of the recent decision wouldn’t come as a surprise.

“Judging by the past, of course he will appeal,” he says.

“However, this is the first step, I hope, on the way to some sort of finality.”

He adds: “We are prepared, when we get the order, to send a copy of it around to every court registrar in Ontario just to make sure he doesn’t walk in and, you know, not tell them and put something down.”

Assaf’s agent, Daniel Barna, says the pair disagree with the notion that Bosada’s forged documents didn’t have any bearing on the ownership of the property.

“What we were hoping Justice Morgan would do was recognize that the only way previous orders had been obtained was through lying to the courts,” he tells Law Times.

The true owner of the property, Barna maintains, is Savarin Ltd., a Bay Street nightclub once owned by Assaf’s father. Assaf is now the owner of the company.

“The judges have chosen to believe Bosada, found to be a forger and a perjurer,” he says. Assaf will appeal the vexatious litigant declaration, he adds.

Asked about the costs still unpaid by Assaf, Barna says: “Well, of course these guys have siphoned all the money out of the estate.”

Introducing Fresh Evidence At An Appeal Hearing

Fresh evidence is not new evidence- fresh evidence existed at the time of the initial trial, but for various reasons could not be put before the court.

New evidence is that which has become available subsequent to the trial, and is much harder to gain admissibility in evidence that is fresh evidence.

This was discussed by Rowles J.A. in Struck v. Struck, (2003), 20 B.C.L.R. (4th) 242, 2003 BCCA 623 at para. 37:

The evidence admitted in this case was not “fresh” evidence as that term is generally understood, for it was not evidence in existence at the time of trial that could have affected the result. Instead, it is evidence of events that occurred subsequent to the trial judgment. Generally speaking the need for certainty and finality leaves no room for the admission of such evidence on appeal: North Vancouver (District of) v. Lunde (1998), 60 B.C.L.R. (3d) 201 at 210 (C.A.)

In order to adduce fresh evidence on appeal, the appellant must meet the test set out in Palmer v. The Queen, [1980] 1 S.C.R 759; Spoor v Nicholls (2001), 90 B.C.L.R. (3d) 88 (CA) at para. 16.
.

The criteria for the admission of fresh evidence set out in R. v. Palmer, supra, at 775 and applied by this Court in C.fB.A.), supra, are these:

  1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen [[1964] S.C.R. 484].
  2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
  3. The evidence must be credible in the sense that it is reasonably capable of belief, and
  4. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

See also Stav v. Stav, 2012 BCCA 154 at paras. 30 and 32.

 

Another method of attempting to introduce fresh evidence is through the natural justice as per  Dagneault v. Hatton (1994), 99 B.C.L.R. (2d) 109 (CA) at paras. 13-14.

  1. In Dagneault, the Appellant, ICBC, was seeking to appeal the chambers judge’s decision to dismiss its application for an extension of time for filing the appeal book and transcript because he refused to accept the volume of litigation faced by ICBC as justification for the delay. In his reasons, he found that granting the extension would be tantamount to giving ICBC special treatment as an appellant to not have to follow the court rules regarding filing deadlines. On appeal, ICBC sought to adduce fresh evidence in an affidavit, where they stated they were not trying to receive special treatment, but that the delay in filing the appeal books was due to a muddle and confusion caused by various employees and solicitors of ICBC due to sickness and communication problems.
  2. At paragraph 19 of the judgment, Madam Justice Southin holds:

“But when, as here, the cause of the failure is muddle caused in part by illness and in part by the dilatoriness of the litigants’ advisors, then, unless that dilatoriness is malevolent or there is prejudice to the respondent, I do not think the order to extend the time should be refused unless the appeal is without merit.”

 

Limitations Act -June 1.13

limitationsBC Limitations Act

It is essential that each specific type of court action be brought within the time limits set by the statute of limitations, or the perspective claimant is “out of time”and barred from doing so.

There are a number of substantial changes being made in the area of estate claims when the new Limitation Act in British Columbia is brought into effect on June 1, 2013.

The link is : http://www.ag.gov.bc.ca/legislation/limitation-act/pdf/LA_Explained.pdf)

Some of the most substantial claims from a quick review of the draft legislation, and thus not yet law until proclaimed, are as follows:

 

1. There is a general 2 year limitation period and 15 year ultimate limitation period for claims except for exempt claims under the Act or specified under other acts.  No more distinguishing between 2, 6, and 10 year limitation dates, and the ultimate limitation period is 15 years instead of 30 years.

 

2.Trust claims which previously had a 10 year limitation period now have a 2 year limitation period, but the discoverability rule says it has to be actual knowledge of a claim in order for the limitation period to begin running.  In all other claims, it’s actual or constructive knowledge (i.e. should have reasonably known).

 

3.Property claims for title or possession of property are exempt from a limitation period.

 

4. Claims for spousal support and child support arrears are exempt from a limitation period.

 

5.Sexual assault claims are exempt from a limitation period.

 

6. Negligence is not 6 years and is now 2 years for limitation period.

 

7. The new act applies to claims discovered AFTER June 2013.  Otherwise, the old act still applies.

8. The Limitation time to commence a Wills Variaion action remains at of 6 months from the date of probate is NOT changed

 

Equity Demands “Clean Hands”

clean hands2Equity  demands  “clean hands”  or it will not be exercised.

Wachter v Carlson 2012 BCSC 1390 is a good example of the horrendous legal predicament elderly couple can find themselves in by entering into well intentioned, but poorly thought out, and not legally prepared, arrangements commonly known as “care for life” situations.

 

They typically involve the wealthier elderly couple moving in with a child and his or her family, often within a self contained suite, and often after putting up most if not all of the funds to purchase the house.

There is often a complete failure to protect their legal interests such as by registering the property on their own names.

These great plans can go very much sideways, and  often do as a result of a matrimonial split, or family dispute of some significance.

 

The Wachter case is one of those situations that occurred and fortunately the court rectified through the application of the application of unjust enrichment, while denying the defendants arguments that the plaintiff’s did not have the “clean hands” maxim demanded of  equity, and returned the home to the parents.

The plaintiffs were the parents of the female defendant and her husband who had entered into an arrangement,  whereby the defendants would arrange mortgage financing for the purchase of a house in the Okanagan, in which the plaintiffs will also live.

The plaintiffs located and bid on the house, confirmed with the defendants that the mortgage financing was in place, put down the down payment, performed an inspection, and paid all closing costs re-its purchase.

The defendants however were named as the purchaser on the contract for the purchase and sale of the property, and title was registered only in their names.

The parties had entered into a rental agreement for 60 months, which was the length of the mortgage.

Under the agreement, the plaintiffs were responsible for rent at the same amount as the mortgage, property taxes all utilities and insurance.

After five years the relationship between the parties broken down and the plaintiffs brought court action claiming ownership of the house.

The court allowed the action and ordered that title to the house be transferred by the defendants to the surviving plaintiff and her deceased’s estate, as tenants in common.

The court based its decision on both the laws of unjust enrichment and resulting trust.

The court found that virtually all of the documents such as the rental agreement, were provided for at the request of the bank so as to be entitled to mortgage financing, and did not accurately reflect the landlord and tenant relationship between the parties.

The correspondence between the parties acknowledge the defendants understanding that the plaintiffs have an equitable interest in the house, and that they would benefit from an increased equity in the house as a result of renovations that the plaintiffs had completed at their own expense.

The court found that title to the house was placed in the defendants names only to enable them to obtain more the mortgage necessary to purchase the house, as the plaintiffs could not obtain mortgage financing giving their poor financial situation.

The plaintiffs had performed all of the tasks, and paid all of the costs related to the home ownership, except securing the mortgage financing.

The court found that it was clear that the agreement between the parties was that the plaintiffs would hold the house as equitable owners, and pursuant to that agreement, the court declared the plaintiffs to in fact be been the beneficial owners of the house.

Furthermore the defendants failed to prove that the plaintiffs had not come to court with clean hands, and were thus precluded from an equitable remedy.

The Wachters plead the applicability of the doctrines of unjust enrichment and resulting trust as the basis upon which title to the Vernon home be transferred to them. The concepts of unjust enrichment and resulting trust are discussed in Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269 (S.C.C.). The determination of whether there has been unjust enrichment requires findings to the following questions:

a) Have the Carlsons, as defendants, been enriched?
b) Have the Wachters, as plaintiffs, suffered a deprivation?
c) Is there no reason in law or justice for the Carlsons’ retention of the benefit conferred by the Wachters?

In Kerr, Cromwell J., writing for the court, states:

[40] The third element of an unjust enrichment claim is that the benefit and corresponding detriment must have occurred without a juristic reason. To put it simply, this means that there is no reason in law or justice for the defendant’s retention of the benefit conferred by the plaintiff, making its retention “unjust” in the circumstances of the case: …

Court Prefers Lawyers Opinion Over Doctor’s On Mental Capacity

Testimony

 

Moore v Drummond BCSC 1702 is not the first decision where the evidence of the lawyer who  prepared a will  is preferred over that of a family doctor, on the issue of whether or not a deceased  had mental capacity to prepare a will.

One year before her death the testatrix made a new will naming her neighbours as executors and soul beneficiaries, to the exclusion of her son.

The solicitor who drafted her will had no concerns about her testamentary capacity.

Whoever just one week before, the testator’s family Dr. told the Public Guardian and Trustee that the deceased had dementia and was no longer capable of managing her affairs.

After her death the executors brought action to prove the will in solemn form, and the sons brought a counterclaim to find the will invalid.

The court found the will of valid, and specifically found that the testator had the requisite capacity to make a new will.

The executors could not rely upon the presumption of validity because the suspicious circumstances caused by the fact that the doctor had expressed an opinion that the testator was incapable of managing her affairs.

However the doctors opinion was found to by the court to be a general one that commented in abstract on the testator’s ability to manage her affairs.

The solicitor who met with the deceased was more focused on the question of testamentary capacity, and was satisfied on the basis of his interview with her, observations and extensive experience.

The testator was able to accurately tell the solicitor what her property consisted of, and articulate reasons for disinheriting her son and favouring her neighbours.

The court found that the testator’s decision was consistent with the negative attitude previously expressed about her son and long-standing friendship with her neighbours.

The court commented as follows on the law relating to testamentary capacity:

 

The frequently quoted test for testamentary capacity comes from Banks v Goodfellow (1870), 5 QB 549 at 567:

… [The testator] ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them. It is not necessary that he should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms.

[34]         In Leger v. Poirier, [1944] SCR 152 at 161, the Supreme Court of Canada used the term “disposing mind and memory”, which it defined as “one able to comprehend, of its own initiative and volition, the essential elements of will-making, property, objects, just claims to consideration, revocation of existing dispositions, and the like …”

[35]         A more recent formulation of the test is found in Re Schwartz, [1970] 2 OR 61  at 78 (CA), aff’d [1972] SCR 150where Laskin J.A. (dissenting on other grounds) summarized the elements of testamentary capacity:

… The testator must be sufficiently clear in his understanding and memory to know, on his own, and in a general way (1) the nature and extent of his property, (2) the persons who are the natural objects of his bounty and (3) the testamentary provisions he is making; and he must, moreover, be capable of (4) appreciating these factors in relation to each other, and (5) forming an orderly desire as to the disposition of his property….

[36]         This does not mean the testator must have perfect mental capacity for all purposes or be able to remember all details. Diminished capacity does not equate to lack of capacity and a person who has been deemed incapable of managing his or her own affairs may still be able to make a valid will: Royal Trust Co v Rampone, [1974] 4 WWR 735 at 743 (BCSC).

[37]          In Banks the court said at 566:

In these cases it is admitted on all hands that though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act, in its different bearings, the power to make a will remains.

And at 567:

… his capacity may be perfect to dispose of his property by will, and yet very inadequate to the management of other business, as, for instance, to make contracts for the purchase or sale of property. For, most men, at different periods of their lives, have meditated upon the subject of the disposition of their property by will, and when called upon to have their intentions committed to writing, they find much less difficulty in declaring their intentions than they would in comprehending business in some measure new.

[38]         The existence of testamentary capacity does not depend on scientific or medical definitions and medical opinions are not necessarily determinative: Field v James, 2001 BCCA 267 at para 77; Baker Estate v Myhre (1995), 168 AR 248 at para 39.

[39]         The party seeking to prove a will must show that it is in fact the will of a “free and capable testator,” but there is a presumption in favour of validity where the will has been duly executed, with the requisite formalities, after having been read by or to a testator who appeared to understand it. That presumption may be rebutted by evidence of suspicious circumstances, in which case the burden reverts to the propounder to prove validity on the balance of probabilities. The suspicious circumstances that may rebut the presumption may relate to the preparation of the will, the capacity of the testator, or a suggestion of coercion or fraud: Vout v Hay, [1995] 2 SCR 876. The court in Vout added at paragraph 25:

Since the suspicious circumstances may relate to various issues, in order to properly assess what effect the obligation to dispel the suspicion has on the burden of proof, it is appropriate to ask the question “suspicion of what?”

[40]         The “suspicious circumstances” must do more than create “a general miasma of suspicion”; they must create “a specific and focussed suspicion that the testator may not have known and approved of the contents of the will”: Clark v Nash (1989), 61 DLR (4th) 409 at 425 (BCCA).

The Doctrine of Fraudulent Concealment Postpones a Limitation Period

The doctrine of fraudulent concealment  . . .  was succinctly articulated by Justice Dickson (as he then was) in Guerin v. Canada, [1984] 2 S.C.R. 335 at 390, 13 D.LR. (4th) 321:

. . .  The fraudulent concealment necessary [to postpone a limitation period] need not amount to deceit or common law fraud. Equitable fraud, defined in Kitchen v. Royal Air Force Association, [1958] 1 W.L.R. 563, as ‘conduct which, having regard to some special relationship between the two parties concerned, is an unconscionable thing for the one to do towards the other’, is sufficient.”
Halloran v. Sargeant (2002), 217 D.L.R. (4th) 327 at 338, (sub nom. Halloran v. Ontario (Employment Standards Act Referee)) 163 O.A.C. 138, 23 C.P.C. (5th) 23, (sub nom. Halloran v. Crown Cork & Seal Canada Inc.) [2002] O.L.R.B. Rep. 765 (C.A.).

(2) In summary, the doctrine of fraudulent concealment applies in cases when:

a) the defendant and plaintiff are engaged in a special relationship with [each other];
b) given the special or confidential nature of their relationship, the defendant’s conduct amounts to an unconscionable thing for the one to do towards the other;
c) the defendant conceals the plaintiff’s right of action (either actively, or as a result of the manner in which the act that gave rise to the right of action is performed).

When these elements are satisfied, the doctrine of fraudulent concealment will be used to postpone limitation periods: Giroux Estate v. Trillium Health Centre, 2004 CarswellOnt 569 (Ont. S.C.J.).

(3) “Fraudulent concealment that suspends a limitation period requires three findings:

(1) that the defendant perpetrated some kind of fraud;

(2) that the fraud concealed a material fact; and

(3) that the plaintiff exercised reasonable diligence to discover the fraud: H. (V.A.) v. Lynch, 2000 ABCA 97, 255 A.R. 359 [(C.A.)]  . . .

Fraudulent concealment requires an element of unconscionability, ‘some abuse of a confidential position, some intentional imposition, or some deliberate concealment of facts’: M. (K.) v. M. (H.), [1992] 3 S.C.R. 6 at 57, 96 D.L.R. (4th) 289. Unconscionable conduct can be either active concealment or a failure to disclose  . . .  As well, the defendant must know of the wrong.”: Ambrozic v. Burcevski, 2008 ABCA 194, 2008 CarswellAlta 652 (Alta. C.A.), per curiam at paras. 21 and 23.

(4) It has been held that the “fraudulent concealment” of a cause of action postpones the running of a limitation period. Quaere the meaning of “fraudulent concealment”. Per Hughes, J.: “In M.(K.) [M.(K.) v. M.(H.), [1992] 3 S.C.R. 6 (S.C.C.)] the Supreme Court noted at 57 that the factual basis for fraudulent concealment is described in Halsbury’s, 4th ed., vol. 28, para. 919, at p. 413: ‘It is not necessary, in order to constitute fraudulent concealment of a right of action, that there should be active concealment of the right of action after it has arisen; the fraudulent concealment may arise from the manner in which the act which gives rise to the right of action is performed.’” (At para. 77 of instant case.)

The fact that a sexual abuser of a child is a trusted family authority masks the wrongfulness of the abuser’s incestuous conduct. Hence, it amounts to a “fraudulent concealment” of the victim’s cause of action: T. (J.) v. H. (E.E.), 2007 ABQB 537, 2007 CarswellAlta 1172 (Alta. Q.B.).

– See more at: http://www.disinherited.com/blog/doctrine-fraudulent-concealment-postpones-limitation-period#sthash.LGKha2SB.dpuf