Extrinsic Evidence Admissible To Determine Intention in S. 58 WESA

In Re Hadley Estate 2017 BCCA 311the Court of Appeal underscored the importance of evidence, including extrinsic evidence to determine testamentary intention in  S.58 WESA applications to remedy a defective “will”.

40. Sitting as a court of probate, the court’s task on a s. 58 inquiry is to determine, on a balance of probabilities, whether a non-compliant document embodies the deceased’s testamentary intentions at whatever time is material.

The task is inherently challenging because the person best able to speak to these intentions — the deceased — is not available to testify. In addition, by their nature, the sorts of documents being assessed will likely not have been created with legal assistance.

Given this context and subject to the ordinary rules of evidence, the court will benefit from learning as much as possible about all that could illuminate the deceased’s state of mind, understanding and intention regarding the document.

Accordingly, extrinsic evidence of testamentary intent is admissible on the inquiry: Langseth Estate v. Gardiner (1990), 75 D.L.R. (4th) 25 at 33 (Man. C.A.); Yaremkewich Estate (Re) at para. 32; George. As is apparent from the case authorities, this may well include extrinsic evidence of events that occurred before, when and after the document was created: see, for example, Bennett; George; Estate of Young; Re MacLennan Estate (1986), 22 E.T.R. 22 at 33 (Ont. Surr. Ct.); Caule v. Brophy (1993), 50 E.T.R. 122 at paras. 37-44 (Nfld. S.C.).

Adding a Party to An Action Rule 6-2 (7)

The following excerpt on adding a party to an action is taken from Santos v Santos estate 2023 BCSC 1067

In Alexis v. Duncan, 2015 BCCA 135, the Court of Appeal discussed the scope and operation of R. 6-2(7):

[14] Rule 6-2(7) governs the addition and substitution of parties. A court may add a party if one of three circumstances exist. Two of the circumstances are set out in R. 6-2(7)(b). Rule 6-2(7)(c) sets out the third circumstance.

[15] Rule 6-2(7)(b) is concerned with remedying defects in the proceedings as they stood prior to the application to add a party. It has a narrow application. Under R. 6-2(7)(b) the court must decide if the person ought to have been joined as a party or the person’s participation in the proceeding is necessary to ensure that all matters may be effectually adjudicated: … The discretion to add a party under R. 6-2(7)(b) exists if one of the conditions in subsections (i) and (ii) is established:… However, “if neither of the prerequisite conditions is established then there is no discretion in the chambers Judge and he must refuse the application”…

ii. Rule 6-2(7)(b)

67 Rule 6-2(7)(b) is engaged if the proposed new party is deemed necessary to the proper conduct of the proceeding. It is not enough that their participation as witnesses is “merely convenient”: Kitimat (District) v. Alcan Inc., 2006 BCCA 562 at para. 29.

iii. Rule 6-2(7)(c)

68 In Madadi v. Nichols, 2021 BCCA 10 at paras. 22-24, Justice Fisher reviewed the principles underpinning the more expansive R. 6-2(7)(c):

[22] Rule 6-2(7)(c) is broader and therefore more commonly relied upon. A plaintiff applicant must establish that there is a question or issue between the plaintiff and the proposed defendant that relates to or is connected with the relief, remedy, or subject matter of the proceeding. This threshold is low. It is generally expressed as establishing a real issue between the parties that is not frivolous, or that the plaintiff has a possible cause of action against the proposed defendant: The Owners, Strata Plan No. VIS3578 v. John A. Neilson Architects Inc., 2010 BCCA 329 at para. 45 [Neilson Architects]; Strata Plan LMS 1816 v. Acastina Investments Ltd., 2004 BCCA 578 [Acastina]; and MacMillan Bloedel Ltd. v. Binstead et al. (1981), 1984 CanLII 351 (BC CA), 58 B.C.L.R. 173 (C.A.) [Binstead]…

o [23] This threshold requirement is usually met solely on the basis of the proposed pleadings, but the parties may provide affidavit evidence addressing it. If evidence is provided, the court is limited to examining it only to the extent necessary to determine if the required issue between the parties exists; it is not to weigh the evidence and assess whether the plaintiff could prove the allegations: Neilson Architects at para. 45, citing Acastina and Binstead. Whether or not evidence is provided, it is necessary for the court to examine the pleadings in order to determine whether the plaintiff has a possible cause of action against the Proposed Defendants…

o [24] If this requirement is met, the court must next determine whether it would be just and convenient to decide the issue between the parties in the proceeding. It is in relation to this issue that evidence is more commonly provided. This is a discretionary decision, which discretion must be exercised judicially, and in accordance with the evidence adduced and the guidelines established in the authorities. In Letvad, this court adopted a list of factors to be considered from Teal Cedar Products (1977) Ltd. v. Dale Intermediaries Ltd. (1996), 1996 CanLII 3033 (BC CA), 19 B.C.L.R. (3d) 282 (C.A), a decision that addressed the amendment of pleadings after the expiry of a limitation period. These factors include the extent of the delay, the reasons and any explanation for the delay, the expiry of a limitation period, the degree of prejudice caused by the delay, and the extent of the connection, if any, between the existing claims and the proposed new cause of action: Teal Cedar at para. 67; Letvad at para. 29; see also Chouinard v. O’Connor, 2011 BCCA 161 at para. 21. In the context of adding parties, the last Letvad factor may be more accurately described as the extent of the connection, if any, between the existing claim and the parties to be added.

o [25] The existence of a limitation defence is an important factor, as such a defence is extinguished if the proposed defendant is added: Limitation Act, R.S.B.C. 1996, c. 266, s. 4(1)(d), repealed and replaced with Limitation Act, S.B.C. 2012, c. 13, s. 22(1)(d); and Anonson v. North Vancouver (City), 2017 BCCA 205 at para. 13. However, this is not determinative…

iv. The Relevance of the Applicant’s Delay

69 The greater the applicant’s delay, the less likely the application to add will be granted. However, (1) the applicant can reduce the weight of any delay by offering an explanation, and (2) in terms of explaining the delay, the conduct of other parties may be relevant.

70 In Neilson Architects, Justice Neilson allowed an appeal and added parties to this construction defects litigation. At paras. 88-89, she noted that there was a reasonable explanation for the delay, in that although the Strata Corporation knew of the defects early on, it was assured that they would be remedied. The Strata Corporation eventually brought an action against certain defendants but was advised by its first lawyer to defer doing so against others. The court noted that this advice was erroneous. The court noted that there is a distinction between relying upon incorrect advice and purely dilatory behaviour on the part of the applicant:

o [86] Turning to the Letvad factors, there is no question there was a lengthy delay in bringing the application to join the respondents. Twelve years had passed since the Metropolitan was completed and the owners received the first report on problems with water penetration. Five-and-a-half years had passed since the writ was filed in the original action.

[87] However, delay is not the only governing factor. The chambers judge was also required to consider the owners’ explanation for the delay, and whether the respondents had established prejudice arising from the delay. There is nothing in his reasons to suggest he considered these factors. I am persuaded that his failure to do so led him to err in exercising his discretion to find that it was not just and convenient to join these respondents. I am also satisfied that if he had considered these matters, he would have reached a different conclusion.

[88] The record demonstrates a reasonable explanation for a large part of the owners’ delay in bringing the joinder application. While they had early knowledge of the Metropolitan’s water problems, between 1995 and 1999 the original defendants reassured them these would be repaired, and remediation efforts took place. The respondents N.A.P. and Plaza 88 were directly involved in these.

[92] In Teal Cedar Products (1977) Ltd. this Court commented on the role played by lawyers’ advice in providing an explanation for delay. The plaintiff had received advice from its counsel that its claim against a defendant insurer for coverage would not succeed. Subsequent events led the lawyer to revise that opinion and the plaintiff brought an unsuccessful application to add a claim for coverage against that defendant after the limitation period had expired. On appeal, Finch J.A., writing for the Court, reversed that decision and allowed the new claim. He held that fault or culpability in the sense of intentional but mistaken conduct was not a decisive factor, and the initial advice from the plaintiff’s counsel provided a satisfactory explanation for the delay in adding the claim. In deciding whether joinder was appropriate, a party should not be punished for having obtained mistaken advice.

The Question of Prejudice

71 When a plaintiff seeks to add a party outside of the limitation period applicable to the claim against the new party, there is a presumption of prejudice in favour of the party opposing the application. The onus then shifts to the plaintiff to lead evidence rebutting the presumption of prejudice: Med Finance Co. S.A. v. Bank of Montreal, 1993 CanLII 1428 (B.C.C.A). However, prejudice is presumed only with respect to the period which has passed since the limitation period expired, plus one year to allow for service of a claim: McIntosh v. Nilsson Bros. Inc., 2005 BCCA 297 at paras. 7-8; Thind v A.M. Fredericks Underwriting Management Ltd., 2020 BCSC 1733 at para. 29. In Tundra Helicopters Ltd. v. Allison Gas Turbine, 2002 BCCA 145, Justice Esson (as he then was) noted that the “presumption of prejudice” is not a presumption of law, but rather one of fact that is used in the absence of any other evidence. The whole context must be considered and prejudice measured by assessing whether there can be a fair trial. Given that prejudice to the defendants is most likely known by them, the failure to adduce evidence of it can be telling.

72 Actual prejudice may arise, for example, where the defendant has destroyed or discarded documents after the expiration of the limitation period which could have been important evidence in the defence of the proposed claim, or where there are faded memories or aging witnesses: Mountain-West Resources Ltd. v. Fitzgerald, 2005 BCCA 48 at para. 13; Nilsson Bros. Inc. at paras. 6-8.
73 The court in Eastern Platinum Limited v Cameron, 2020 BCSC 1353 summarized the proper approach to the question of prejudice as follows:

[85] The Court of Appeal has stated that an amendment must not be refused merely because it may be potentially prejudicial to the other party. Evidence of actual prejudice that could not be compensated by costs must be present: Langret Investments S.A. v. McDonnell, 1996 CanLII 1433 (BC CA), [1996] B.C.J. No. 550 (C.A.) at paras. 43 and 46.

[86] Regard must be had to both presumed and actual prejudice. With regard to presumed prejudice, Madam Justice Martinson in Weinlich v. Campbell, 2005 BCSC 1865 at paras. 54-55 explained that there must be a “balancing of prejudices”, although the prejudice to the plaintiff in refusing an amendment will generally be greater than the prejudice to the defendant in granting the amendment. She stated:

[54] … With respect to presumed prejudice, a plaintiff is prejudiced if a party is not added to an action when, by virtue of the expiry of a limitation period, the pursuit of a claim in a separate action is impossible. Conversely, prejudice to a proposed defendant is presumed if the addition is contemplated after the expiry of the limitation period, because any possible limitation defence is lost.

[55] As explained by Master Bolton in Takenaka v. Stanley, 91 B.C.L.R. (3d) 179, 4 C.P.C. (5th) 258, 2000 BCSC 242 at para. 41, the prejudice to a plaintiff in the former situation will usually be greater than the prejudice to a defendant in the latter. In the former situation the plaintiff loses the opportunity to ask a court to consider the claims that the defendant has done something the law of the land considers actionable. In the latter, the defendant loses a windfall opportunity to avoid entirely any potential liability. Their respective situations may be precisely balanced in financial terms, but not as a matter of justice. Master Bolton concludes: “[a] right to seek justice cannot be fairly equated with a right to cut short the search without an answer.”

[87] Counsel for the defendants rely heavily on the presumed prejudice argument in this case. As noted in Weinlich, on the level of principle this argument taken alone may not necessarily weigh in their favour. However, it is not necessary for me to decide the issue on the basis of presumed prejudice alone since in my view the defendants’ argument fails on the basis of actual prejudice.

[88] With respect to actual prejudice, the onus is on the party who opposes the amendment to demonstrate that the prejudice affects the party’s ability to respond to the amended claim: Weinlich at paras. 56-58; Yablonski v. Corp. of the City of Cranbrook, 2002 BCSC 1875 at para. 37. In meeting this onus, the respondent must adduce evidence that the alleged delay would prejudice their ability to bring or defend an action such as lost witnesses or evidence or destruction of documents: John A. Neilson Architects at paras. 96-102; Levy v. Petaquilla Minerals Ltd., 2012 BCSC 776 at para. 14.

Marshalling Evidence In Estate Litigation

This Paper Was Presented at  trial lawyers Conference on June 9,2023

Estate Litigation is Family Law Less One Witness

Estate litigation encompasses many different proceedings, ranging from wills variation, to lack of capacity and undue influence, passing of accounts, marriage-like relationships, removal of executors, and many other types of claims where the nature of the evidence that must be adduced in such proceedings varies widely.
What makes estate litigation different from many other types of civil litigation is the obvious fact that the person who knew or ought to have known what happened to his or her assets is dead and very often the people who stand to benefit from the estate are not talking.
The question then becomes how does one gather the material evidence to commence litigation and proceed to trial.
The following is an unapologetic plaintiff’s counsel’s views on the topic.

What Is Material Evidence?

This topic arose after my reading of the reasons for judgment In re Bennett estate 2023 BCSC 559. It was a lost will case where the plaintiff was attempting to rely upon the presumption of revocation, but that presumption was disallowed as a result of not providing material facts to the court that would prove that the deceased have the will in his or her possession at the time of death.

One of the first points I wish to emphasize is that each particular cause of action in estate litigation has its own material facts that must be proved in order to succeed.
Having the knowledge of the relevant law is imperative.
I can only assume that the plaintiff in the Bennett case did know the law, but was unable to come up with evidence to show that the deceased had the will in his or her possession.
Material means “important”, relevant , having influence or effect and going to the merits of the claim. It is the quality of evidence which tends to influence the trier of fact because of its logical connection with the issue.

Evidence which has an effect of influence or bearing on the question in issue is material. It is evidence that must necessarily enter into consideration of the controversy and which by itself or in connection with other evidence is determinative of the case.
Suffice to say, if a material fact is not proved at court, that party will likely lose the trial.

A Bit About Evidence

The basic rule of evidence which forms the starting point is that all evidence relevant to a fact in issue is admissible unless there is a legal reason for excluding it.
1. Is the evidence relevant? The evidence must be logically probative of the fact for which it is tendered, i.e., the evidence must increase or decrease the probability of the truth of the fact;

2. Is the evidence material? The evidence must address a fact in issue in the case, i.e. the fact must have legal significance arising from the pleadings or the credibility of the witness;

3. Does the evidence fall under any legal rule that excludes it? Not that applicable to estate litigation since hearsay is usually admissible under the best evidence rule. ( see Pasko v Pasko 2002 BCSC 435 and R. v. Smith (1992) 75 CCC3d 257)

There are four general types of evidence:
1. Real evidence- tangible things
2. Demonstrative evidence, often a model of what likely happened at a given time and place;
3. Documentary- letters, emails
4. Testimonial- witness testimony.
I presented a paper for TLABC in July 2020, on using demonstrative evidence which I recommend as additional reading on this topic.

Tools Under the Rules

After having practiced estate litigation for 50 years I have a few observations to offer with respect to how to utilize the tools available in order to obtain the necessary evidence. In no particular order or importance I wish to discuss several of the tools that I think have been underutilized to a large extent by many estate litigation practitioners.

1. Social Media Searches
Though not a rule, all I can say is it is unbelievable what information individuals post on social media. I won a trial based on Face Book pages that were totally contrary to the defence.
I like to start here when I am fact blind and don’t know what the case is about, or who is involved. Probably many of you have interesting cases that involved social media.
We had a case a few years ago where we investigated the defendants B&B and found the defendant and her husband also ran a brothel on the side complete with spicy video ads played out well at mediation.

2. Searches and Surveillance

Land title, probate registry, motor vehicle, occasional private detective for back ground, civil registry for matrimonial actions that may indicate a severance of a joint tenancy by conduct, will search with director of vital statistics

3. Citations

Section 108 of WESA and Rule 25 – 11 re citations are two powerful tools when dealing with a reluctant executor who refuses to proceed with probate for any number of reasons.
Under section 108 of WESA If the executor does not apply for a grant of probate then anyone interested in the estate may require the executor to accept to renounce probate, or explain to the court why the administration of the deceased’s estate should not be granted to the executor or to another person who is willing to act as the personal representative.
The new form prescribed under P32 is much more detailed in the information required.
A. Citation to Apply for Probate

(1) If a testamentary document is or may be in existence, a person interested in the estate may serve by personal service on each person named as an executor in the testamentary document a citation in Form P32 in respect of the testamentary document to require the served person to apply for a grant of probate in relation to that testamentary document.

The person cited has 14 days after personal service to respond and deliver to the citing party:

a) A copy of the grant;
b) A copy of the filed submission for the grant;
c) A copy of the documents filed in support of the grant if not yet issued;
d) If no steps have been taken towards probate , the disputant must file an Answer under Form 33.

Under S.25-11 (5) a persons cited is deemed to have renounced executorship if

a) The person refuses to comply with providing the information and documents or file an Answer;
Once the citor has refused to comply or file an Answer the citor or another person interested in the estate may apply for :
-a grant of probate or administration;
-Order under S.58 to cure deficiencies; that the will be proved in solemn form;
A citation under Subrule 1 must be served on each alternate executor
A citation must include addresses for service, a statement of the citor providing the ground for knowledge or the belief as to the existence of the testamentary document and information available to the citor that will allow the testamentary document to be identified.

A person who is cited under subrule 1 to apply for a grant of probate is deemed to have renounced executorship in relation to that testamentary document if:

-failure to provide an Answer or
Obtain a grant of probate within 6 month after the date that the citation was served

The court may, on its own motion or on application, give directions concerning the procedure to be followed in any matter under this Part and, without limiting this, may give directions respecting any of the following:

(a)the issues to be decided;

(b)who the parties will be, including directions for the addition or substitution of a party;

(c)how evidence may or must be presented;

(d)summary disposition of any or all issues in the matter;

(e)the trial of any or all of the issues in the matter;
(f)pleadings;

(g)examinations for discovery and discovery of documents;

(h)service or delivery of a notice, process, order or document on any person;

(i)dispensing with service or delivery;

(j)representation of any person or interest.

4. Notices to Admit

Notices to admit are a powerful rule under Rule 7-7(14) that are seemingly under utilized in trying to obtain admissions of facts and authenticity of documents.
Civil Rule 7-7(2) states that the opposing party is deemed to have permitted for the purposes of the action only, the truth of a fact or the authenticity of the document, unless within 14 days after service of the notice to admit, the party receiving the notice specifically denies the truth of the fact, or sets out in detail the reasons why the party cannot make the admission, or states that the refusal to admit the fact that the authenticity of the document is made on the grounds of privilege or relevancy.
Rule 7-7(4) provides that the court may order a party who unreasonably refuses to admit a fact pay the costs associated with the proof of those facts which the party unreasonably refuse to admit.
(See Ceperkovic v MacDonald 2016 BCSC 939 for a thorough review of Notices to Admit.)

5. The Discovery Process

I don’t purport to know a lot about examinations for discovery, but I do recommend Lyle Harris’s book discovery practice in British Columbia as a reference resource.
Understanding what documents need to be produced, which should have privilege attached to them, what documents are relevant and compellable but are not being produced, discovery of electronically stored documents, the discovery of video surveillance, the use of large document cases and the all-important obtaining discovery of documents from non-parties.
There is a lot of law relating to the scope and nature of the discovery process as well as various procedural issues that is both in the Harris practice book, as well as on a regular basis in the Verdict.
This is an area of law that I think all litigators could better hone their skills by being familiar with the various issues raised in the discovery practice book.
Starting with Rule 7-(1) requires a party to list all documents in the party’s possession or control that could, if available, be used by any party of record at trial to prove or disprove a material fact.
The scope of Rule 5-(3) (f) suggests that the court will accommodate in appropriate cases and grant an order expanding the discovery, either generally or with respect to particular documents or classes of documents.
In an application following a demand for additional documents under Rule 7 -1(11) the court may order a party to prepare an amended list of documents listing documents, and that party’s possession, power or control relating to any and all matters in question in the action.
Rule 7-1 (18) provides If a document is in the possession or control of a person who is not a party of record, the court, on an application under Rule 8-1 brought on notice to the person and the parties of record, may make an order for one or both of the following:

(a) production, inspection and copying of the document;
(b) preparation of a certified copy that may be used instead of the original

Don’t proceed to discovery until you have the Lists of Documents and copies thereof of all the parties well in advance of the appointment.

Rule 7-1 (18): Unless the court otherwise orders, a person being examined for discovery

(a) must answer any question within his or her knowledge or means of knowledge regarding any matter, not privileged, relating to a matter in question in the action, and

(b) is compellable to give the names and addresses of all persons who reasonably might be expected to have knowledge relating to any matter in question in the action.

6. Third Party Records

A significant amount of estate litigation involves “detective” work from time to time. I have canvassed close neighbourhoods for witnesses and it has on occasion paid off.

Fortunately our society is somewhat obsessed with keeping records of almost every nature and this particularly suits estate litigators in many situations.
I cannot give you an exhaustive list of common records that you may obtain or attempt to obtain in EL, but a sampling are:

A. Medical:

I try and obtain the clinical records of the GP of plaintiff for as long back as you can get -I try for 7 years . the long time period allows for a greater understanding of the effect of various diseases such as diabetes, high blood pressure, mini strokes and the like.
Same with hospitals, MSP printout, and other treating practitioners, especially specialists reports. Try to get as many records as possible from all medical sources, particularly when dealing with a capacity or undue influence case, or the cause of death if necessary. The coroner report is often helpful in the cause and timing of a death .

B. Legal The drafting lawyer’s will is only compellable when the validity of the will is in dispute. The executor can waive this privilege and sometimes it is waived but most often it is not. There is no entitlement to production of the lawyer/notary file if it is a wills variation action only. ( S. 60 WESA)
(In cases such as testamentary capacity or undue influence it is often surprising how little material evidence there is in the drafting lawyer or notaries file.)

C. Police/RCMP

I have a claim where a charge of manslaughter was been laid against a joint tenant. I will be obtaining the police investigation file as evidence that the wrongful act severed the joint tenancy and the interest of the deceased should now go to the daughter of the deceased and not the accused.

D. Employment Records- One aspect of these types of records is the number of insurance /pension claims that arise by reason of designated beneficiaries, separation agreements, court orders and marriage like relationships where two years cohabitation can create legal issues in this area;

E. Financial records

There are inevitable accounting issues in EL and it is often necessary to accumulate financial records from far and wide

7. Notice to Produce

If you are concerned about having documents or physical objects not produced at trial by the opposing party, under Rule 12-5(8), you may serve a notice in Form 43 at least two days before trial, and a party of record may require any other party of record to bring to the trial any document listed by the party in a list of documents and any physical object and the other party’s possession or control that the party serving the notice contemplates tendering at the trial as an exhibit, but the notice must identify the object.
The notice to produce has declined in usage over the years, but it can be an effective tool in ensuring that the evidence that you seek is produced at the trial.

8. Inspecting Exhibits

Rule 12-5 (10) states that unless the court otherwise orders or the parties of record otherwise agree, no plan, photograph or object may be received in evidence at the trial of an action unless at least seven days before the start of the trial, the parties of record having been given an opportunity to inspect it.

9. Adverse Inference For Failure to Call Expected Evidence

Although the opportunity doesn’t arise that often, be aware of the potency of a successful adverse inference argument.

656621 BC Ltd v David Moerman Painting 2022 BCSC 1683 discussed the adverse inference discretionary rule of evidence that permits the Court to draw an adverse inference against a party by reason of his or her failure to call a witness who could be expected to give material evidence in their favour at trial: Singh v. Reddy, 2019 BCCA 79 at para. 1 [Singh]; Thomasson v. Moeller, 2016 BCCA 14 at para. 35
Sarzynick v Skwarchuk 2021 BCSC 443 held that the defendant who was found to have strategically refused to disclose and produce financial documents could be held to an adverse inference that he had in fact siphoned off monies from his parent’s assets over several years as alleged by the plaintiffs.
The court stated that strategic non disclosure is a risky strategy which typically attracts adverse consequences to the non disclosing party
The court followed the BCCA case of Weintz v Weintz 2014 BCCA 118 in that regard.

10. Notice of Intention to Call Adverse Party as a Witness

This is a rather aggressive trial tactic that I have only used twice. It is used where you want the ability to cross examine an adverse party at trial but there is no guarantee that the said party will testify.
A Form 45 together with conduct money must be served at least 7 days before the required attendance at trial. Usually the party’s counsel will then agree to call the witness in direct.

Rule 12-5 (26) states “ If, in accordance with subrule (21) or (22), a party calls as a witness a person referred to in subrule (20) (a) or (b), the following apply:

(a)the party calling the witness is entitled to cross-examine the witness generally on one or more issues;
(b)the adverse party must not cross-examine the witness except to obtain an explanation of matters brought out in the examination-in-chief;
(c)other parties may cross-examine the witness generally on one or more issues, as the court may direct;
(d)the party calling the witness must not re-examine the witness except in relation to new matters brought out in cross-examination.

11. Pre- Trial Examination of Witness

Rule 7-5(1) allows the court to order that a person who is not a party of record to an action may have material evidence relating to a matter in question in the action, order that the person be examined on oath and order that the examining party pay reasonable lawyers costs of the person relating to the application and the examination.
The rule does not specifically apply to experts retained unless the party seeking the examination is unable to obtain facts and opinions on the same subject by other means.

In the affidavit in support of an application, the materials must set out that the matter in question in the action to which the applicant believes that the evidence of the proposed witness may be material, and that the proposed witnesses refused or neglected or neglect by the applicant to give her responsive statement, either orally or in writing, relating to the witnesses knowledge of the matters in question, or has given conflicting statements.

12. Preserving Testimony

It is a simple fact that many of the witnesses and parties in estate litigation are elderly and/or severely ill and may have future claims. Where so consideration should be given where appropriate to obtain an order under Rule 7-8 (17) where:

a) Circumstances exist that entitle the person to receive an estate or interest in property on the happening of a future event’
b) The right or claim to that estate or interest cannot be brought to trial or hearing by the person before the happening of the event,
The person may apply by petition or by requesition Form 31 for an order to preserve , by examination under this rule, any testimony that may be material for establishing the right of claim.

In the same regard, the videotaping of eldering or ill parties and witnesses evidence should be recorded in direct and then allow for cross examination. Most counsel will agree to these arrangements but if not, the rules provide for it.

13. Trial Management and Case Planning Conferences
Most counsel seem to believe that these conferences before a Judge are often simply a waste of time and a necessary step to get a trial underway.

For the most part I have tried to utilize any conference before judge into a frank discussion of various needs, usually related to obtaining evidence of material facts and have done better than I believe I would have in open Chambers. There is a certain frankness in a well conducted case planning conference.
Rule 5 governing case planning conferences involve counsel bringing forward proposals re :
– Discovery of documents
– – examinations for discovery
– -dispute resolution procedures
– -expert witnesses
– -witness lists
– – trial procedure and times estimates
Under rule 12-2 (1) unless the court otherwise orders, a trial management conference must take place at least 28 days and not more than 120 days before the scheduled trial date, at a time and place to be fixed by a registrar.

14. Interrogatories

The use of Interrogatories has declined in recent years since the introduction of Rule 7-3 that now requires the opposing parties’ consent or a court order to answer interrogatories. Prior to this rule the process was somewhat abused with lengthy interrogatories that took hours to answer.
However there may be circumstances where a court order is necessary to find out certain information prior to the examination for discoveries.
The parties may agree to serve and answer Interrogatories rather than conducting discoveries and instead go directly to a mediation with the basic knowledge disclosed under oath.

14. Witnesses

It is trite that there is no property in a witness.

As stated in Schober v Walker 2004 BCCA 205, “So far as witnesses of fact are concerned, the law is as plain as can be. There is no property in a witness. The reason is because the court has a right to every man’s evidence. Its primary duty is to ascertain the truth. Neither one side nor the other can debar the court from ascertaining the truth either by seeing a witness beforehand or by purchasing his evidence or by making communication to him. In no way can one side prohibit the other side from seeing a witness of fact, from getting the facts from him and from calling him to give evidence or from issuing him with a subpoena.”

Under Rule 7-4, unless the court orders otherwise , each party of record must within the time set out in a case management conference , or before the earlier of the trial management conference and the date that is 28 days before the scheduled trial date, file and serve on every party of record a list of the witnesses the party may call at trial with each witness’s full name and address.
Consider contacting each witness and attempting to discuss his or her evidence prior to trial.

15. Take Advantage of Presumptions in Law and Reverse Onus of Proof

A. Presumption of Resulting Trust
“Equity presumes a bargain”
Where a transfer of land is gratuitous, the presumption of resulting trust may displace the presumption of indefeasible title, see Fuller v. Harper, 2010 BCCA 421 at para. 43.
See the leading case Pecore v Pecore 2007 SCC 17

B. The Presumption of Revocation- re lost wills as discussed in the Bennet estate case I mentioned at the beginning of my paper.

C. The Presumption of Undue Influence ( Domination and Dependence)
Geffen v Goodman Estate [1991] 2 S.C.R. 353:
a) “The equitable doctrine of undue influence was developed, as was pointed out by Lindley L.J. in Allcard v. Skinner (1887), 36 Ch. D. 145, not to save people from the consequences of their own folly but to save them from being victimized by other people (at pp. 182-83). In the context of gifts and other transactions, equity will intervene and set aside such arrangements if procured by undue influence.”

S. 52 WESA states that in a proceeding, if a person claims that a will or any provision of that resulted from another person:
a) being in a position where the potential for dependents or domination of the will maker was present, and
b) using that position to unduly influence the will maker to make the will or the provision of it that is challenged,
and establishes that the other person was in a position where the potential for dependents or domination of the will maker was present, the party seeking to defend the will or the provision of it that is challenged or to uphold the gift has the onus of establishing that the person in the position where the potential for dependents or domination of the will maker was present did not exercise undue influence over the will maker with respect to the will or the provision of it that is challenged.

D. The Reverse Onus of Proof In Breach of Trust/ Fiduciary Duty

Fiduciaries are held to an irregularly high standard of behavior in civil law due to the nature of their duties. It is the peculiarly unequal position of the parties that results in the reversal of onus onto the fiduciary in relationships.

Typically the reverse onus works as follows: in asserting a breach of fiduciary duty claim, the plaintiff need only establish a prima facie inference of the fiduciary obligations and the breach.

The fiduciary concept then imposes a reverse onus that shifts the burden of proof onto the fiduciaries to disprove the beneficiaries’ allegations.

(See Lee Estate v. Royal Pacific Realty Corp., (2003) BCSC 911)

16. Rule-25-12 Subpeona for Testamantary Document or Grant
A person may apply for a subpoena to be issued to require a person to deliver to the
registry, one or more of a testamentary document, an authorization to obtain estate information, an authorization to obtain receiving information, an estate grant, for a grant, resealed for a grant and a certified or notarial copy of such a document.

Failure of a Subpoened Person to File Document
Failure of the subpoenaed person to file the required it document will allow the court, by its warrant in form P36 directed to a peace officer, may cause the server person to be apprehended and promptly brought before the court and to be tainted custody released on terms the court may order and the court may order the suit person to pay the costs arising from his or her failure to file the document

.

16. “Suspcious Circumstances” in Lack of Mental Capacity and Undue Influence Cases

Under common law an individual is deeded to be competent unless circumstances are raised that cast doubt on the competency and free will of the testatator.
A testator is presumed to be competent but the existence of “suspicious circumstances” can shift the onus of proof on the pro pounder of the will to prove capacity
These circumstances can be loosely described as “Suspicious Circumstances”

A short list of the innumerable circumstances which might be “suspicious circumstances ” is as follows:
(a) where a gift is made to a person with whom the testator had a close relationship but which was not known or recognized by the testator’s family;
(b) where a gift is made to a person who is in a position to influence the testator, such as a care-giver, or the worst example, the party preparing the will;
(c) where an apparently unwarranted, undeserving, or unpopular gift is made to a beneficiary who, in the minds of the those left behind, should not receive the gift;
(d) where a gift is made to a beneficiary to whom the testator has had no close relationship, such as a charity;
(e) where the division of assets among the children of the testator is substantially unequal, or a certain child or children are harshly treated;
(f) where the will substantially deviates from previous wills;
(g) where a gift is made to a person standing in a fiduciary relationship;
(h) where the beneficiary accompanies the testator on each trip to your office during the process to complete the will;
(i) where you receive the testator’s instructions from someone other than the testator;
(j) Where there has been a recent serious illness or hospitalization;
(k) where there is any question at all about testamentary capacity;
(l) where there are indications of substantial medications that are potentially mind altering, being used;
(m) where there is a hasty or unwise marriage or common-law relationship;
(n) where there is evidence of depression;
(o) where there is a language/cultural disability or illiteracy;
p) the recently widowed elderly man and the younger woman love interest

17. Miscellaneous Evidence

1. Video evidence is often plentiful and realistic. It can be actually video of a scene or a compilation of numerous photos played in sequence.
Rule7-8 allows the court to order video depositions in order to facilitate evidence being available for trial.
In Machander v Frader 2020 BCSC 1496 , the will drafter videotaped receiving instructions and the execution of a will which was shown at trial. The court commented that the videotape largely removed any suspicious circumstances alleged by the plaintiff and found the deceased to be confident in the will valid.

With the advent of digital wills during Covid it may be more and more likely that the hard drives of certain computers will be analyzed.

2. Timelines are almost a necessity in estate litigation to show significant events relevant to the issues at trial. Many judges now order the production of a time line at the Trial management conference. Dramatic /important incidences should be reflected in the time line.

3. Photographs ( personal letters, cards) of loving relationships are important, but blow them up to at least 8 x 10, and consider having them streamed together to present a life ending with a significant decline that can be related to medical records and expert evidence;

4. Get transcripts of telephone conversations. It is not illegal in Canada for a person to secretly record a private conversation to which that person is a party It is however a criminal act to secretly record when a third person records a conversation when that third person is not a party to the conversation. ( see Silver Hill homes the Borowski 2019 BC CA 227

5. Along the lines of demonstrative evidence get medical scans and x-rays, particularly of the brain, photos of the Alzheimer brain etc. and show it in court though your expert;

6. Phone and text messages, phone bills, visa bills

18. EXPERTS

EL demands that from time to time it is necessary to retain experts for the purpose of trial.

The most common experts employed are:

1. Geriatric Psychiatrists in capacity and undue influence cases;
2. Occupational therapists re cost of future care;
3. Actuaries to value a life estate;
4. Appraisers and realtors;
5. Money Managers;
6. Accountants
7. Handwriting
8. Digital recovery Experts

Conclusion

We have reviewed most of the Supreme Court Rules that enable counsel to obtain evidence without the initial assistance of the Court. There have been a few other tips about obtaining the necessary evidence to prove the material facts necessary for you to prove your case at trial.
BC Supreme Court Rules are perhaps not as encompassing as many American jurisdictions but the 20 or so Rules that are referred to herein should be able to allow most determined counsel to obtain the evidence that they need ( if it exists) by utilizing the various Rules that are provided, but perhaps under used.
One has to keep up with the technology and above all, use your imagination.

 

Severance of a Trial

In civil suits severance refers to the division of a trial into two or more parts. Plaintiffs in civil suits base their cases on a cause of action—facts that give the plaintiff the right to sue. For reasons of judicial economy, the court may order the lawsuit divided into two or more independent causes of action.

For example the case law indicates that a wills variation action should be severed from an action that also includes a claim that the will is invalid. The courts have stated that the validity of the will should firstly be determined before the wills variation claim is heard and have ordered severance in such situations.

Whether or not to sever part of a trial is within the discretion of this Court and the scope of the Court’s discretion must be interpreted in light of the overall object embodied in Rule 1-3 to “secure the just, speedy and inexpensive determination of every proceeding on its merits”: Kitsul v. Slater Vecchio LLP, 2015 BCSC 1394 at paras. 22–23.

The principles relevant to the exercise of discretion under Rule 12-5(67) were summarized in British Columbia (Minister of Forests) v. Okanagan Indian Band, 2007 BCSC 1014 at para. 69 (citing Nguyen v. Bains, 2001 BCSC 1130 at para. 11), aff’d 2008 BCCA 107:

…
a. A judge’s discretion to sever an issue is probably not restricted to extraordinary or exceptional cases. However, it should not be exercised in favour of severance unless there is a real likelihood of a significant saving in time and expense.
b. Severance may be appropriate if the issue to be tried first could be determinative in that its resolution could put an end to the action for one or more parties.
c. Severance is most appropriate when the trial is by judge alone.
d. Severance should generally not be ordered when the issue to be tried is interwoven with other issues in the trial. This concern may be addressed by having the same judge hear both parts of the trial and ordering that the evidence in the first part applies to the second part.
e. A party’s financial circumstances are one factor to consider in the exercise of the discretion.
f. Any pre-trial severance ruling will be subject to the ultimate discretion of the trial judge.

The Public Guardian and Trustee for BC v Johnston 2016 BCSC 1388 has an excellent review of the law as to when the courts will order that court actions be severed from the other and heard separately.

This decision was upheld by the BCCA in 2017 BCCA 59.

In that action there were claims that the will was invalid and alternatively in the same action , that if the will was valid, that it should then be varied as per wills variation provisions.

The application was to sever the two claims from the other and the court ordered that the trial firstly be held on whether the will is valid, and then after that trial, if necessary, the wills variation claim would be tried.

[67] Rules 22-5(6) and (7) state:

Separation

(6) If a joinder of several claims or parties in a proceeding may unduly complicate or delay the trial or hearing of the proceeding or is otherwise inconvenient, the court may order separate trials or hearings or make any other order it considers will further the object of these Supreme Court Civil Rules.
Separating counterclaim or third party claims

(7) If a counterclaim or a third party proceeding ought to be disposed of by a separate proceeding, the court may so order.

The key factors engaged in a general sense on an application to sever were canvassed in Schaper v. Sears Canada, 2000 BCSC 1575 (CanLII) [Schaper] at para. 19:

1. …the party making the request must show that hearing the claims together would unduly complicate, delay the hearing, or otherwise be inconvenient. If a party applying does not meet this threshold, the court need not go further in any analysis and the application should be dismissed.

2. Have the actions of any party in the proceeding been unreasonable and have they contributed to the complication, the delay, or the inconvenience alleged by the party applying? If this found, that would strengthen the argument to sever.

3. Are the issues between the plaintiff and defendant and the issues between the defendant and the third party sufficiently distinct so as to allow them to be tried separately? If so, that strengthens the argument to sever off third party proceeding.

4. Is the relief claimed by, or the potential obligation of, any party best determined by hearing the evidence of all parties at one hearing? If so, that weakens an application to sever.

5. Does the prejudice to the party applying, prejudice based on undue complication, delay or inconvenience, outweigh any benefit of matters being heard together, or outweigh any considerations related to the overall objective of the rules to ensure a just, speedy and inexpensive determination of every proceeding on its merits, including the avoidance of a multiplicity of proceedings for the benefits of litigants and having concern to congestion in the courts generally?

[69] Guidelines that focused attention more keenly on the efficacy of the trial process were helpfully laid out in O’Mara v. Son, Kim et al., 2007 BCSC 871 (CanLII) [O’Mara] at para. 23:

1. whether the order sought will create a saving in pre-trial procedures;
2. whether there will be a real reduction in the number of trial days taken up by the trial being heard at the same trial;
3. whether a party may be seriously inconvenienced by being required to attend a trial in which the party may have a marginal interest;
4. whether there will be a real saving in expert’s time and witness fees;
5. whether one of the actions is at a more advanced stage than the other;
6. whether the order sought will result in delay of the trial of any one of the actions and, if so, whether any prejudice which a party might suffer as a result of that delay outweighs the potential benefits which a consolidated trial might otherwise have;
7. the possibility of inconsistent findings and common issues resulting from separate trials.

Severance may well be appropriate where the determination of one issue will render another one moot: Lawrence v. ICBC, 2001 BCSC 1530 (CanLII) [Lawrence].

The judicial discretion to sever trials or hearings is to be exercised sparingly: Morrison Knudsen Co. v. British Columbia Hydro & Power Authority, 1972 Carswell B.C. 62, 24 D.L.R. (3d) 579 (S.C.); Lawrence at para. 43. The test for severance is not applied in a vacuum; it is to be considered against the backdrop of the nature of the particular case at hand: Wirtz v. Constantini, 1982 CanLII 282 (BC SC), 137 D.L.R. (3d) 393, 1982 CarswellBC 588 (S.C.). Because the determination involves an individualized assessment of the unique case before the Court, there is no closed list of uniformly applied considerations that inform the exercise of the Court’s discretion.

If Order Entered, Judge Is “Functus Officio”

Once an order is entered the judge is thereafter ” functus officio” and cannot change the order unless there has been a ” slip” or the order does not express the manifest intention of the court.

The scope of a trial judge’s discretion to vary an order after pronouncement depends on whether a formal order has been entered. So long as the order remains unentered, the judge retains “an unfettered discretion” to re-open the matter. That discretion should be used sparingly: Sykes v. Sykes (1995), 6 B.C.L.R. (3d) 296 (C.A.). Although this discretion is sometimes treated as part of the discretion granted by Rule 41(24), the “Slip Rule”, it is in fact a common law discretion recognized by this Court in Clayton v. British American Securities Ltd., [1934] 3 W.W.R. 257, [1935] 1 D.L.R. 432.

Once an order has been entered, however, the court which made the order is functus officio with respect to the issues therein: Piyaratana Unnanse et al v. Wahareke Sonuttara Unnanse et al, [1950] 2 W.W.R. 796 (P.C.).

Once the judge is functus, the power to re-visit an order is much narrower. Generally speaking, that power is confined to making corrections or amendments in two situations: first, under Rule 41(24) of the Supreme Court Rules where there has been a ‘slip’ in drawing up the order or where a matter should have been but was not adjudicated upon; and second, where there has been an error in expressing the manifest intention of the court: Buschau v. Rogers Communications Inc., 2004 BCCA 142; see also Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848.

In Canada Transport v. Alsbury, [1953] 1 D.L.R. 385 (B.C.C.A.), Mr. Justice Bird described the general effect of an order made by a Superior Court judge:

The order under review is that of a superior court of record, and is binding and conclusive on all the world until it is set aside or varied on appeal. No such order may be treated as a nullity.
[25] Mr. Justice Sidney Smith said:
… the order of a superior court is never a nullity; but, however wrong or irregular, still binds, cannot be questioned collaterally, and has full force until reversed on appeal. (Authorities omitted.)
[26] In Wilson v. The Queen, [1983] 2 S.C.R. 594 the majority of the Supreme Court of Canada approved of this statement made by Mr. Justice Monnin (as he then was):
The record of a superior court is to be treated as absolute verity so long as it stands unreversed.

Judge’s Cannot Be Sued In Their Capacity as a Judge

A retired judge I know recently read in the Sunday newspaper that he was being sued for $33 million for a decision he handed down back when he was still sitting.

I don’t all the specifics but the plaintiff was a medical doctor and a decision made by the judge over covid greatly upset the father.

BUT- can judge’s be sued? The short answer is not for anything that the judge did in his or her capacity as a judge.

The doctrine of judicial immunity is grounded in the constitutional guarantee of judicial independence and the principle of judicial impartiality: see Valente v. The Queen, [1985] 2 S.C.R. 673, 1985 CanLII 25; Morier and Boily v. Rivard, [1985] 2 S.C.R. 716, 1985 CanLII 26; MacKeigan v. Hickman, [1989] 2 S.C.R. 796, 1989 CanLII 40; R. v. Lippé, [1991] 2 S.C.R. 114, 1990 CanLII 18; Ref re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I., [1997] 3 S.C.R. 3, 1997 CanLII 317.
The Supreme Court of Canada has taken a broad view of impartiality and the independence of the judiciary, and has made it clear that judges will not be held liable for actions taken in their capacity as judges: see Morier; Lippé; The Queen v. Beauregard, [1986] 2 S.C.R. 56, 1986 CanLII 24. The majority in Lippé highlighted the interplay between judicial immunity, independence, and impartiality at 155-156:

The doctrine of judicial immunity as a protection of the independence of judges vis-à-vis the parties was expressed in colorful terms by Lord Denning, M.R., in the case of Sirros v. Moore, [1975] 1 Q.B. 118, quoted in the case of Morier v. Rivard, 1985 CanLII 26 (SCC), [1985] 2 S.C.R. 716, at p. 739:

If the reason underlying this immunity is to ensure “that they may be free in thought and independent in judgment,” it applies to every judge, whatever his rank. Each should be protected from liability to damages when he is acting judicially. Each should be able to do his work in complete independence and free from fear. He should not have to turn the pages of his books with trembling fingers, asking himself: “If I do this, shall I be liable in damages?”

As judicial independence is a safeguard for judicial impartiality, understanding of its full scope is important to the fullness of protection of judicial impartiality.

[ Moreover, as referenced by the majority in Morier at 737-738, judicial immunity serves to protect the public:
In Fray v. Blackburn (1863), 3 B. & S. 576, it states at p. 578:
It is a principle of our law that no action will lie against a Judge of one of the superior Courts for a judicial act, though it be alleged to have been done maliciously and corruptly; …The public are deeply interested in this rule, which, indeed, exists for their benefit, and was established in order to secure the independence of the Judges, and prevent their being harassed by vexatious actions.

In Tsai v. Klug, [2005] O.J. No. 2277, 2005 CanLII 19788 (S.C.J.), aff’d [2006] O.J. No 665, 2006 CanLII 4942 (C.A.), leave to appeal to SCC ref’d, 31427 (17 August 2006), Justice Karakatsanis (as she then was) ordered the striking of a statement of claim and dismissed an action against two Deputy Small Claims Court Judges related to acts performed in their judicial capacity. Justice Karakatsanis found that the actions could not succeed because the judges were immune from civil liability for their actions relating to the exercise of their judicial duties. Justice Karakatsanis provided the following description of judicial immunity at para. 6:
In Morier and Boiley [sic] v. Rivard, [1985] 2 S.C.R. 716 (S.C.C.) at pp. 737 …, the Supreme Court of Canada considered whether judicial immunity extended to acts that may be without or in excess of jurisdiction. The Supreme Court of Canada held that the civil immunity of Superior Court Judges in Ontario and Quebec was absolute. While the immunity does not extend to purely personal acts, judges are however immune for any acts done in the course of or in connection with their legal duties, even if the acts are malicious or mal fides. …
[Emphasis added.]

Justice Karakatsanis then further elaborated on judicial immunity:

[7] The plaintiff’s submission that an illegal act cannot be part of judges’ duties and therefore cannot be the subject of civil immunity is, at first blush, logical. However, all suits against judges in relation to their cases would necessarily allege that they have acted improperly — either negligently, outside their jurisdiction, maliciously or even illegally. The civil immunity is absolute for any acts related to or in connection with their judicial capacity — whether they are proper judicial actions or not. The immunity relates to civil liability only. The right to be tried by an independent and impartial tribunal is an integral part of the fundamental justice protected by s. 7 of the Charter. The constitutional protection is there to ensure that judges can perform their duties independently, impartially and free from concern that they will be personally sued for unpopular decisions.
[8] … The rule of law is the foundation of our society; it requires that judges be free to carry out their judicial duties impartially, fearlessly — without concern about how a decision may affect their personal interests. As a result, the common law and legislation have long protected judges from civil prosecution for the exercise of their judicial function.
[Emphasis added.]

The absolute immunity enjoyed by judges for actions taken in their judicial capacity has been affirmed in the following decisions by this Court and our Court of Appeal.

In Gonzalez v. British Columbia (Attorney General), 2009 BCSC 639, Justice Bruce applied the principles of judicial immunity found in Morier, MacKeigan, and Tsai in evaluating the parameters of judicial immunity. This case involved alleged human rights violations committed in the course of carrying out judicial duties: see Gonzalez at paras. 32-47. Justice Bruce specified that, at least in the context of a complaint before the Human Rights Tribunal, there is no bad faith exception to judicial immunity: Gonzalez at para. 52. Ultimately, Justice Bruce found that the principle of judicial immunity applied because the judge’s actions were performed in the course of carrying out his legal duties.