Publication Bans

Publication Bans | Disinherited Vancouver Estate Litigation

Toronto Star Newspapers Ltd v Sherman Estate  2018 ONSC 4706 involved the sensational murder of two wealthy Torontonians where the courts weighed the deleterious effects of applying publication bans to protect files. The court concluded that any deleterious effect of a publication ban was substantially outweighed by the salutary effects on rights and interests of victims, beneficiaries and trustees of the estate.

The court ordered that the estate files be sealed for two years.

Journalists had sought access to the estate and investigatory files but were advised that the files were not available for viewing, so the newspaper brought application seeking variation or termination of protective orders and full and ceiling of the court files. Those applications were dismissed for a period of two years.

The case reviewed the principles applicable to win the courts will grant confidentiality orders:

1) The principle of open courts is inextricably tied to the rights guaranteed by section 2 of the Charter of Rights.- Sierra Club of Canada v. Canada (2002) 2 SCR 522;

2) The fundamental question for a court to consider in an application for a publication ban or confidentiality is whether, in the circumstances, the right to freedom of expression should be compromised and the analytical approach to the problem must be tailored to the specific rights and interest engaged in the case- Sierra Club at paragraphs 37 – 38;

3) The basic purpose of the court’s approaches to ensure that the judicial discretion to deny public access is exercised in accordance with charter principles;

4) A confidentiality order (publication ban) should only be granted when such an order 1) is necessary in order to prevent a serious risk to an important interest because reasonable alternative measures will not prevent the risk, and 2) the salutary effects of the confidentiality order outweighs it’s deleterious effects, including the effects and the right to free expression in the public interest in open and accessible court proceedings;

5) Stated differently public access will be barred only when the appropriate court, in the exercise of its discretion, concludes that disclosure would subvert the ends of justice or unduly impair its proper administration. Toronto Star Newspapers LTD v Ontario (2005) 2 SCR 188;

6) These principles apply to all discretionary court orders that limit freedom of expression and freedom of the press in relation to legal proceedings, there being no fundamental distinction to be drawn between seeming orders, publication bans rather confidentiality orders made in the context of court proceedings, both criminal and civil;

7) The test is not whether or confidentiality should be issued in order to err on the side of caution or out of an abundance of caution- the test is whether it is necessary to do so R. v Kossyrine & Vorobiov 2011 ONSC 6081

The court concluded that the burden to be satisfied by the party seeking a confidentiality order is a high one in the court must guard against any tendency to treat such applications as routine.

The open court principle is a fundamental element necessary to maintain and nourish public confidence in our courts and their integrity. Loss of that confidence when undermined the public’s willingness to accept the legitimacy of the mandate of judges to dispense justice on their behalf. From there lies a slippery slope to the sort of society no Canadian wishes to bring about.

S.151 WESA: Leave to Commence a Court Action on Behalf of the Executor

S.151 WESA: Leave to Commence a Court Action on Behalf of Executor

Re Gordon Estate 2018 BCSC 487 is a decision that granted leave under section 151 of WESA for the residual beneficiary, the University of British Columbia, to commence an action in the name and on behalf of the executor of the estate of the deceased.

The University of British Columbia was the sole residual beneficiary under the deceased will, however prior to her death, the deceased transferred the majority of her assets to her gardener which totaled almost $2 million.

There was very little in the way of assets left in the estate for the residual beneficiary.

The petition and supporting materials filed by the University of British Columbia showed that the deceased was basically blind due to macular degeneration and was cognitively deficient.

the deceased’s long time lawyer refused to change her will and prepare a transfer of her home on the basis that she was confused, and believed amongst other things that she owned two houses when in fact she only owned one.

The court granted relief pursuant to section 151 of WESA are to allow the University of British Columbia to bring action in the place of the executor, to set aside the transfer of assets done prior to her death so as to bring them into her estate, so that the University could inherit them.

Section 151 of WESA states as follows:

151 (1) despite section 136, a beneficiary or an intestate successor may, with leave of the court, commence proceedings in the name and on behalf of the personal representative of the deceased person

a) to recover property were to enforce a right, duty or obligation owed to the deceased person that could be recovered or enforced by the personal representative, or
b) the court may grant leave under this section if:
a) the court determines the beneficiary or intestate successor seeking leave
1) has made reasonable efforts to cause the personal representative to commence or defend the proceeding,
2) has given notice of the application for leave to
a) the personal representative
b) any other beneficiaries or intestate successors and c) is acting in good faith, and
3) it appears to the court that it is necessary or expedient for the protection of the estate or the interests of the beneficiary or an intestate successor for the proceeding to be broader defended

4) on application by a beneficiary, and intestate successor or personal representative, the court may authorize a person to control the conduct of a proceeding under this section or may give other directions for the conduct of the proceeding.

The court considered the decision Bunn v Bunn 2016 BCSC 2146 were the court refused an application by a beneficiary, the daughter of the deceased, seeking leave to bring an action in the name and on behalf of the executor against the applicant’s brother and one of his companies. The proposed action would’ve challenge certain inter vivos transactions as having been the conduct of undue influence, or alternatively based on the doctrine of non-test factum.

In the Bunn decision, the court held that the terms necessary and expedient or disjunctive, such that the applicant need only establish that the proposed action is either necessary or expedient. A proposed proceeding will be considered necessary if the personal representative is unwilling or unable to proceed. It may be expedient if it’s in the best interest of the estate.

The court gave great weight to the lawyer who declined to act for the deceased because of her ongoing lack of capacity, and that he had a long-standing relationship with her. The lawyer who actually prepared the transfer of assets, did not provide an affidavit himself, and his handwritten notes of his one and only conversation with the deceased sis not elucidate his practice in interviewing persons in the deceased situation. There was no description of the specific questions he asked of the specific answers the deceased gave to support his apparent conclusion that the deceased was able to” tell me about her assets”.

Money Paid By Mistake (Money Had and Received)

Money Paid By Mistake (Money Had and Received) | Disinherited

Newman v Beta Maritime Ltd 2018 BCSC 1442 discussed the situation where money “had and received” is a cause of action which is available where money was paid by mistake, acquired by way of fraud or paid under duress.

The issue of the law relating to where money was paid by mistake was discussed in International longshore and Warehouse Union local 502 v Ford 2016 BCCA 226 at paragraphs 23-26 which stated:

“ as a cause of action, money had and received resembles and is related to the right of recovery for money paid under mistake”

At its most basic, money had and received is an action for the return of money which the defendant is received, but which the law says it would be unjust for him or her to keep. In Storthoaks v. Canada Ltd Oil Mobil 1976) 2SCR 147 , the Supreme Court of Canada discussed the rationale underlying the right to recover money had and received as a result of mistake. In explaining the rationale behind the right of recovery, the court relied on Kelly v Solari (1841) 152 E.R. 24 which stated in part:

“ I think that where money is paid to another under the influence of mistake, that is, upon the supposition that a specific fact is true, which would entitle the other to the money, but which fact is untrue, and the money would not have been paid if it had been known to the payer that the fact was untrue, an action will lie to recover it back, as it is against conscience to retain it; though demand may be necessary in those cases in which the party receiving may have been ignorant of the mistake. “

The court went on to clarify what is meant by circumstances were would be against conscience for the payee to retain money:

“ the court did not purport to limit the right to recover money paid under a mistake of fact to cases in which would be against conscience for the recipient of the money to retain it. What the judge said was that where money is paid on the supposition that a specific fact is true which would entitle the other to receive it, which fact is untrue and the money would not have been paid if the fact of been known to be untrue, it can be recovered and it is against conscience to retain it. In other words given the circumstances the court outlined, is against conscience for the recipient to keep the money paid.”

The claim for monies had and received is very similar to that of unjust enrichment, however the BC Court of Appeal has stated on several occasions that money had and received shall continue to be treated as a distinct cause of action, as was stated in the longshore case at paragraph 24.

The Supreme Court of Canada has held that banks were entitled to recover the funds from the plaintiff where money was paid under mistake of fact. The mistake was that the cheque was genuine. This is not a mistake relating to the plaintiff’s right to receive the funds; by all accounts the plaintiffs were entitled to receive funds would have received a forged cheque. The court concluded that it is not necessary for the mistake to relate to the recipient’s entitlement to receive the funds.