Judicial Discretion and Appeals From It

Kish v Sobchak 2016 BCCA 65 deals with the court’s exercise of judicial discretion and when it is appropriate for an appellate court to interfere in the trial judge’s exercise of discretion. The appeal court is mandated not to simply insert the exercise of their discreation in the place of that exercised by the trial judge.

The case was a will variation claim and the appeal court interfered with the discretion of the trial judge and reduced the trial award in half.

The line between the exercise of judicial discretion and the finding of facts is not easy to enunciate. For purposes of this case, I respectfully adopt Lord Bingham’s description of judicial discretion given in The Business of Judging: Selected Essays and Speeches (2000):

According to my definition, an issue falls within a judge’s discretion if, being governed by no rule of law, its resolution depends on the individual judge’s assessment (within such boundaries as have been laid down) of what it is fair and just to do in the particular case. He has no discretion in making his findings of fact. He has no discretion in his rulings on the law. But when, having made any necessary finding of fact and necessary ruling of law, he has to choose between different courses of action, orders, penalties or remedies he then exercises a discretion. It is only when he reaches the stage of asking himself what is the fair and just thing to do or order in the instant case that embarks on the exercise of a discretion.

I believe this definition to be broadly consistent with the usage adopted in statutes. [At 36; emphasis added.]

Lord Bingham also explains that fact-finding is not “discretionary”, although some judges have described it as such. In his words:

… it is one thing to say that the responsibility of finding the facts is entrusted to a particular person or body, be he judge, arbitrator, official or public authority, and that such finding is to be treated as conclusive or virtually so. But it is quite another to describe that function as discretionary. It is, I suggest, nothing of the kind. In finding the facts the judge’s job is to consider all the conflicting evidence this way and that and decide as best he can where the truth lies. It is very much the task performed, for instance, by the historian or the journalist as part of his stock in trade. The judges of course are constricted by formalities and rules of evidence which do not afflict them. On the other hand, he has powers of compelling testimony which they would envy. It is none the less essentially the same function. Yet to say of a historian or journalist that he exercised a discretion in reaching conclusions of fact would, I suggest, be regarded as a libellous. The judge must exercise judgment, not discretion, in finding the facts, and it is usually the most difficult and often most exacting task which the civil trial judge has to undertake. [At 37; emphasis added.]

The standard of review applicable in Canada to the exercise of judicial discretion is found in Friends of the Oldman River Society v. Canada (Minister of Transport) [1992] 1 S.C.R. 3. There La Forest J. wrote for the majority:

Stone J.A. cited Polylok Corp. v. Montreal Fast Print (1975) Ltd., [1984] 1 F.C. 713 (C.A.), which in turn approved of the following statement of Viscount Simon L.C. in Charles Osenton & Co. v. Johnston, [1942] A.C. 130, at p. 138:

The law as to the reversal by a court of appeal of an order made by the judge below in the exercise of his discretion is well-established, and any difficulty that arises is due only to the application of well-settled principles in an individual case. The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. But if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations such as those urged before us by the appellant, then the reversal of the order on appeal may be justified.

That was essentially the standard adopted by this Court in Harelkin v. University of Regina, [1979] 2 S.C.R. 561, where Beetz J. said, at p. 588:

Second, in declining to evaluate, difficult as it may have been, whether or not the failure to render natural justice could be cured in the appeal, the learned trial judge refused to take into consideration a major element for the determination of the case, thereby failing to exercise his discretion on relevant grounds and giving no choice to the Court of Appeal but to intervene. [At 76-7; emphasis by underlining added.]

This standard was affirmed and supplemented more recently in Penner v. Niagara (Regional Police Services Board) 2013 SCC 19, where the Court stated:

A discretionary decision of a lower court will be reversible where that court misdirected itself or came to a decision that is so clearly wrong that it amounts to an injustic

When The Lawyer Is Also a Witness

Re Zenrosso Estate 2023 BCSC dealt with an issue where a conflict of interest arose with respect to a lawyer representing the sole beneficiary personally  and also in the capacity of  the executor at a passing of accounts where the lawyer would also be a witness. The issue was the division of fees between acting in the role of executor and being the residual beneficiary

The court held that the lawyer was in a conflict of interest and was removed as acting for the executor at the passing of the accounts.


The Code of Professional Conduct for Lawyers In British Columbia [Code] states:

2.1-3(k) A lawyer who appears as an advocate should not submit the lawyer’s own affidavit to or testify before a court or tribunal except as to purely formal or uncontroverted matters, such as the attestation or custody of a document, unless it is necessary in the interests of justice. If the lawyer is a necessary witness with respect to other matters, the conduct of the case should be entrusted to other counsel

5.2-1 A lawyer who appears as advocate must not testify or submit his or her own affidavit evidence before the tribunal unless

(a) permitted to do so by law, the tribunal, the rules of court or the rules of procedure of the tribunal;

(b) the matter is purely formal or uncontroverted; or

(c) it is necessary in the interests of justice for the lawyer to give evidence.

 A lawyer should not express personal opinions or beliefs or assert a fact that is properly subject to legal proof, cross-examination or challenge. The lawyer should not, in effect, appear as an unsworn witness or put the lawyer’s own credibility in issue. The lawyer who is a necessary witness should testify and entrust the conduct of the case to another lawyer. …

      The Code is not binding on a court, but it may be persuasive as an important statement of public policy: MacDonald Estate v. Martin, 1990 S.C.R. 1235, [1991] 1 W.W.R. 705 at paras. 16 and 18.

      This Court has the inherent jurisdiction to remove from the record lawyers who are in a conflict of interest: MacDonald Estate at p. 713.

       Some salient factors to be considered in deciding whether to remove a lawyer of record were set out in Essa (Township) v. Guergis, [1993] O.J. No. 2581 at para. 48.


These include:

(a)  The stage of the proceedings;

(b)  The likelihood that the witness will be called;

(c)  The good faith (or otherwise) of the party making the application;

(d)  The significance of the evidence to be led;

(e)  The impact of removing counsel on the party’s right to be represented by counsel of choice;

(f)   Whether trial is by judge or jury;

(g)  The likelihood of a real conflict arising or that the evidence will be “tainted”;

(h)  Who will call the witness; and

(i)    The connection or relationship between counsel, the prospective witness and the parties involved in the litigation.

       In Elkay Management Inc. v. Law Studio Professional Corporation, 2021 ONSC 3181 at para. 18, the Ontario Superior Court of Justice provided additional principles to consider on a motion to remove a lawyer of record who may be a witness at trial, in particular (internal citations omitted):

(v)  The court’s concern of a lawyer appearing as a witness is that (i) there may be a conflict of interest between the lawyer and client and (ii) the administration of justice can be impaired by a conflict between the lawyer’s obligations of objectivity and detachment which are owed to the court and the lawyer’s obligation to his or her client to present evidence in as favourable a light as possible. …

(xi)  If there is some doubt or “merely a potential” that a lawyer will be called as a witness at trial, the courts should be more generous in allowing the lawyer to remain on the record and deferring the matter until after discoveries or leaving the matter to the trial judge…

(xii)  “In view of the expense of litigation and the enormous waste of time and money and the substantial delay which can result from an order removing solicitors, courts should only do so in clear cases”…

(xiv)  Certainty that a lawyer will be called as a witness is not required. Rather, the court must consider the likelihood of the lawyer being called as a witness…

    At para. 15 of Webb v. Attewell (October 4, 1994) Vancouver A013381/CA13480 (B.C.C.A.), cited in Fraresso v. Wanczyk, 1995 CanLII 1127 (B.C.S.C.) at para. 7:

The law does not forbid a barrister appearing for his client because he has given, or may have to give, evidence.  The rule of professional practice is that he or she ought not to do so when doing so may put the court in an invidious position.  The court is in an invidious position when counsel gives evidence on a contested issue.  When counsel does that, he or she is also in the embarrassing position of inviting the court to accept counsel’s evidence rather than that of another witness.

Executors Should Not Purchase Estate Assets

Re Dewberry estate 2023 BCSC 325 reviewed the law that executors should not self deal with estate assets.

An executor or administrator owes a fiduciary’s duty of loyalty to the beneficiaries, and the well-settled general rule is that a trustee cannot purchase trust property. This rule against self dealing reflects the duty of loyalty: a use of the fiduciary power to dispose of trust property to the trustee is an obvious conflict of interest. See National Trust Co. Ltd. v. Osadchuk, [1943] S.C.R. 89 at 91-92; Re Nathanson (1971), 18 D.L.R. (3d) 495 at 502 (N.S.S.C.(T.D.)); Waters’ Law of Trusts in Canada, 5th ed., at p. 1018.

The general rule may give way if all beneficiaries are of full capacity and they give fully informed consent to the proposed self-dealing: Waters’ Law of Trusts, at p. 1020. Court approval is another available form of authorization. Ms. Dewberry is an in-person litigant, and her notice of application does not specify the authority on which the Court may act. I am satisfied, however, that the Court has the jurisdiction to grant approval to self-deal in appropriate circumstances– either on the basis of an application for advice and directions under s. 86 of the Trustee Act (see Waters’ Law of Trusts, at p. 1020), or on the basis of the Court’s inherent power to authorize a trustee to sell trust property (see Re Nathanson, at 501).

The burden on a trustee seeking permission to sell trust property to herself is substantial. She must establish that a sale is necessary and that “no other purchaser has been forthcoming or seems likely to come forward within a reasonable time, and that his or her own offer in the circumstances is a favourable one”: Waters’ Law of Trusts, at p. 1020.

In Re Mitchell (1970), 12 D.L.R. (3d) 68 (N.S.S.C.(A.D.)), Cooper J.A. reviewed the leading cases that show the limited circumstances in which the general rule will be relaxed, and held at p. 79 that “[a]pproval by the Court of a sale of trust property to a trustee will only be given where it is clearly to the advantage of the beneficiaries.”

In that case, because there was another person by the name of Matheson prepared to purchase at the same price as the trustee, the Court overturned the approval granted to the trustee by the judge below: “The only way in which she could buy would be by Mr. Matheson dropping out of the picture and by her establishing that no other purchaser could be found at a price equal to that offered by her” (p. 81).