Examinations For Discovery and Their Limits

Brown v Fisher 2023 BCSC 2070 dealt with an application in a motor vehicle accident case to compel a party to answer various questions at an examination for discovery. The court refused the application on the basis that the proposed questions  were too remote and invasive.

The application is governed by R. 7-2(18)(a) and (25), which read as follows:

(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,
…
(25) If a person under examination objects to answering a question put to him or her, the question and the objection must be taken down by the official reporter and the court may:

(a) decide the validity of the objection, and

(b) order the person to submit to further examination and set a maximum duration for that further examination.

In general, the pleadings define the scope of discovery: Cominco v. Westinghouse Canada Ltd. (1979), 11 B.C.L.R. 142, at paras. 8 and 9

A broad or wide scope is to be given on examinations for discovery, given that they are in the nature of a cross examination, such that parties ought not interfere with the examination except where it is clearly necessary to resolve ambiguity or prevent an injustice.

Such a “hands off” approach accords with the principle of proportionality: Kendall v. Sun Life Assurance Co. of Canada, 2010 BCSC 1556 (“Kendall”), at para. 10 – 12 and para. 18, and Nwachukwu v. Ferreira, 2011 BCSC 1755, at para. 33.

The newly imposed time limit on discovery makes it all the more important that the courts enforce the principle that counsel for the examined party must not unduly interfere or intervene during the examination for discovery. The time limit imposes a self-policing incentive on the examining counsel to be focused and to not waste time on questions that will not advance the purpose of investigating the case or obtaining admissions for use at trial.

In this respect, the scope is broader than that of document discovery: More Marine Ltd. v. Shearwater Marine Ltd., 2011 BCSC 166, at paras. 6 to 9.
However, there are limits to the discovery rights. In this respect, a party is not expected to, as has often been said, “throw open their file cabinets” to allow unlimited inquiries into their private affairs, including their medical history

The defendant relies on the following decisions:

a) Hickey v. Roman Catholic Archdiocese of Vancouver, 2015 BCSC 2314, where the court found that questions regarding a motor vehicle accident 10 years prior to the subject accident, and whether any compensation was received, was not objectionable; and

b) Andrist v. Bryant, 2023 BCSC 490 at para. 35, where the court agreed that a blanket objection to questions abut the plaintiff’s medical history beyond two years prior to the subject accident was unreasonable. However, I note that the court specifically referenced the plaintiff’s medical history, which included evidence of back and neck issues prior to the subject accident, and a traumatic brain injury in both 2001 and 2018 (the subject accident was in December 2018).

The plaintiff relies on the following statements made in Marchant-Larson v. Bahrami, 2017 BCSC 2337, in support of a general two-year rule:

(7) The defendants bring no specific evidence in support of their application that more than two years of records are required. They simply point to the pre-existing conditions, the evidence that these pre-existing conditions are of some considerable length and history prior to the accident, and certainly well prior to two years before the accident. There is no evidence from any expert that more than two years of disclosure are required in order to properly analyse her propensity for having the problems she is currently experiencing or to establish the baseline for an analysis of her present condition.

(8) There is nothing before me that takes this outside of the sort of general concept that two years prior to a motor vehicle accident is a sufficient investigation, barring other evidence, to allow the defendants to properly investigate the facts surrounding pre-existing conditions.

 

Enforcing Contracts

Meadows v Sward Estate 2023 BCSC 1369 involved a claim for $62,000 pursuant to a loan agreement/contract that was denied as having made a binding contract.

The case reviews the role of the court in attempting to uphold contractual obligations.

There is no legal requirement for a loan agreement to be set out in a written document. While it is obviously prudent to set down the terms of in writing, the law recognizes agreements reached orally or through conduct establishing an intention to be bound. As Justice Dickson (then of this Court) stated in Soleil Hotel & Suites Ltd. v. Soleil Management Inc., 2009 BCSC 1303:

Courts strive to uphold contractual obligations solemnly and freely undertaken. They do not, however, impose them upon parties who have not reached agreement on all essential terms: Catalyst Paper Corp. v. Companhia de Navegacao Norsul, 2008 BCCA 336.

For parties to be bound in a contractual relationship there must be a manifest meeting of the minds. They must express themselves outwardly in a manner that indicates both an intention to be bound and reasonably certain mutually agreed terms: Klemke Mining Corporation v. Shell Canada Limited, 2007 ABQB 176, affirmed 2008 ABCA 257 (CanLII).

These fundamental principles of contract law enable commercial life to operate in a fair, predictable and efficient manner. They apply whether the purported contract in question is concluded in writing, orally, by conduct, or by a combination thereof. The key question in all cases is whether an agreement has been reached on all essential terms, regardless of its form: Catalyst Paper Corp. supra; Periscan Financial Services Inc. v. 519090 B.C. Ltd., 2007 BCSC 707; Leong & Associates Actuaries & Consultants Inc. v. Watt, 2003 BCSC 1885.

The test for determining whether there was an intention to create legal relations is objective. The question is whether the parties “indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract”: Berthin v. Berthin, 2016 BCCA 104 at para. 46, citing G.H.L. Fridman, The Law of Contract in Canada (6th ed., 2011) at 15.

Evidence of the parties’ actual subjective state of mind is not relevant: Hammerton v. MGM Ford-Lincoln Sales Ltd., 2007 BCCA 188 at para. 23. As Justice Blackburn stated in Smith v. Hughes (1871), L.R. 6 Q.B. 597 (Q.B.), the leading English decision on the issue:

If whatever a man’s real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party and that other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party’s terms.
Or, as it was put in Osorio v. Cardona 1984 364 BCSC at paras. 32 and 34, evidence establishing that one party had a “secret mental reservation about performing the agreement” does not mean a contract was not concluded.

The intention of the parties must be manifested before or when the contract is made. However, evidence of the parties’ subsequent conduct may be looked to in determining whether a contract was formed: Hoisington v. Johnson & Johnson Inc. 2015 BCSC 1582 at para. 52; Hoban Construction Ltd. v. Alexander, 2012 BCCA 75 at paras. 39 and 43-44 [Hoban Construction Ltd].
Finally, there is a distinction between a concluded agreement that has not been successfully “papered over” and a failure to conclude an agreement. In Hoban Construction Ltd., the Court of Appeal (per Bennett J.A.) wrote:

In [Langley Lo-Cost Builders Ltd. v. 474835 B.C. Ltd., 2000 BCCA 365] at para. 76, this Court referred to Bawitko Investments Ltd. v. Kernels Popcorn Ltd. (1991), 1991 CanLII 2734 (ON CA), 79 D.L.R. (4th) 97 (Ont. C.A.), setting out the following excerpt from 103-104:

As a matter of normal business practice, parties planning to make a formal written document [of] the expression of their agreement, necessarily discuss and negotiate the proposed terms of the agreement before they enter into it. They frequently agree upon all of the terms to be incorporated into the intended written document before it is prepared. Their agreement may be expressed orally or by way of memorandum, by exchange or correspondence, or other informal writings. The parties may “contract to make a contract”, that is to say, they may bind themselves to execute at a future date a formal written agreement containing specific terms and conditions. When they agree on all of the essential provisions to be incorporated in a formal document with the intention that their agreement shall thereupon become binding, they will have fulfilled all the requisites for the formation of a contract. The fact that a formal written document to the same effect is to be thereafter prepared and signed does not alter the binding validity of the original contract.

However, when the original contract is incomplete because essential provisions intended to govern the contractual relationship have not been settled or agreed upon; or the contract is too general or uncertain to be valid in itself and is dependent on the making of a formal contract; or the understanding or intention of the parties, even if there is no uncertainty as to the terms of their agreement, is that their legal obligations are to be deferred until a formal contract has been approved and executed, the original or preliminary agreement cannot constitute an enforceable contract. In other words, in such circumstances the “contract to make a contract” is not a contract at all. The execution of the contemplated formal document is not intended only as a solemn record or memorial of an already complete and binding contract but is essential to the formation of the contract itself…

Trustee Care and Management Fees

Bokovic v Borkovich 2023 BCSC 2050 reviewed the law relating to trustee care and management fees of estate assets.

Section 88(3) of the Trustee Act permits an executor to apply annually for “a care and management fee and the court may allow a fee not exceeding 0.4% of the average market value of the assets.”

In Mikaloff 2018 BCSC 756, Registrar Nielsen also cited Re Pedlar, [1982] 34 B.C.L.R. 185 (S.C.) [Pedlar], in which the Court set out the following list of factors, which can be considered in determining whether any care and management fee should be allowed and, if allowed, the extent of such fee:

· The value of the estate assets being administered;

· The nature of the estate assets being administered;

· The degree of responsibility imposed upon the trustee by the terms of the will or other instrument, including the length or duration of the trust;

· The time expended by the trustee in the care and management of the estate;

· The degree of ability exhibited by the trustee in the care and management of the estate;

· The success or failure of the trustee in the care and management of the estate; and

· Whether or not some extraordinary service has been rendered by the trustee in the care and management of the estate.

[76] In Pedlar, the Court reiterated that each application must be decided upon its own facts and the list of factors is not intended to be exhaustive as there may be other factors deserving consideration depending upon the circumstances (para. 15).

Lawyer Client Privilege Waived By Correspondence Disclosure

In S. (FCA) v S. ( CE) 2023 BCSC 1098 the court determined that the respondent  had waived solicitor client privilege over parts of her former counsel’s file by disclosing correspondence between her and her former counsel in her application to amend pleadings.

Counsel for the respondent was ordered to deliver copies of all communications relating to the topic of the disclosures.

 

THE LAW

Waiver of privilege can be express or implied. A court will deem privilege waived where a party takes a position inconsistent with the maintenance of privilege or makes legal assertions that make it unfair for them to rely on privilege: Do Process LP v. Infokey Software Inc., 2015 BCCA 52 at para. 23.

In an oft-cited passage from S. & K. Processors Ltd. v. Campbell Avenue Herring Producers Ltd., [1983] B.C.J. No. 1499 (BCSC), Justice McLachlin, as she then was, established the basic principles of voluntary waiver of privilege:

Waiver of privilege is ordinarily established where it is shown that the possessor of the privilege: (1) knows of the existence of the privilege; and (2) voluntarily evinces an intention to waive that privilege. However waiver may also occur in the absence of an intention to waive, where fairness and consistency so require. Thus waiver of privilege as to part of a communication will be held to be waiver as to the entire communication…

 

It has long been the rule that where privilege is waived, production of all documents relating to the acts contained in the communication will be ordered: see also Doland (George) Ltd. v. Blackburn, Robson, Coates & Co., [1972] 3 All E.R. 959 (Q.B.), cited in Sopinka et al, The Law of Evidence in Canada (6th ed.) at p. 1102. The policy reasons for this incursion into the sphere of privilege are fairness and consistency: see S. & K. Processors Ltd., supra. A party cannot “cherry-pick” favourable aspects of privileged communications without disclosing the entirety of the communication.

This prohibition against “cherry-picking” and using privilege as both a “sword and a shield” was further defined in Pacific Concessions, Inc. v. Weir and Weir, 2004 BCSC 1682. In that case the defendant sought to rely on email communication between himself and his counsel, which he appended to his affidavit, as evidence to support his position at the summary trial. The plaintiff argued that in appending emails to his affidavit, the defendant waived solicitor-client privilege attaching to his communications with his counsel regarding the subject matter of the action. Justice Kirkpatrick found that solicitor-client privilege had been waived with respect to the email that was appended and any communications passing between the defendants and their solicitor in response to the issues raised in the email as follows:

 

 

 

Varying A Will BC Lawyer- Long Marriage Like Relationships

Trevor Todd and Jackson Todd have  over sixty combined years  as British Columbia estate litigation lawyers including extensive  experience in wills variation claims, aka varying a will.

Lemire v Von Hollen 2023 BCSC 1348 is a good example of a wills variation claim involving a 31 year marriage like relationship, and the intervention of family law principles being increasingly utilized in wills variation actions involving a matrimonial matter.

The plaintiff was 76 years of age and was left $10,000 in his partners will, with her leaving the home that she owned evenly between her three adult children. His income was approximately $24,000 per year from a pension. He had vacated the matrimonial home and moved into an uninsulated trailer not meant for all year round use on a friend’s property.
The value of the estate was approximately $550,000 and the plaintiff had approximately $100,000 of his own.

They lived in the home owned by the deceased for most of their relationship and he cared for her for the last few years of her life while she was in poor health. The court varied the will to give him $270,000, being one half of the sale proceeds of the home.

Legal Analysis

Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807 at 823–824, is the leading authority on whether to vary a will, and to what extent, by balancing testamentary autonomy and the testator’s legal and moral obligations.

For this situation, the key principles from Tataryn are:

i. In many cases, there will be a number of ways of dividing the assets which are adequate, just and equitable.
ii. The court should only intervene if the testator has chosen an option that falls below his or her obligations measured by legal and moral norms.
iii. The testator’s freedom to dispose of his/her property is not to be interfered with lightly and only in so far as the statute requires.

The deceased’s legal obligations are to be assessed based on the maintenance and property obligations she would have had under the FLA if she and the plaintiff had separated just before her death.

Her moral obligations are typically to be assessed based on society’s reasonable expectations of what a judicious person would do in the circumstances.

Under s. 81 Family Law act (FLA ) at separation, the plaintiff was presumptively entitled to a one-half undivided interest in the parties’ family property, regardless of their respective uses or contributions.

However under s. 85,the matrimonial home was not “family property” because the deceased acquired it before their relationship commenced.

What is family property, however, is its increase in value between the start of their relationship and the date of the hypothetical separation.

The court held that the entire value should be treated as family property under FLA s. 96(b) because of the long duration of their relationship and the plaintiff’s direct contribution to its maintenance and improvement.

The court awarded him 35% of the value of the home for his legal claims and a further 15% pf the home for his moral claims, totalling 50% of the net sale proceeds of the home.
The court reasoned that the sum of about $370,000 in total assets should put the plaintiff in a modest yet reasonable financial position for housing himself in the future, while respecting the deceased’s wishes to leave a substantial gift to her three children.

Contested Wills Vancouver and Wills Variation- Abandoned Infant Receives 60% of Estate

Trevor Todd has contested wills including  wills variation   in Vancouver for 50 years.

 

Buatista v Gutkowski Estate 2023 BCSC 1485 is a favorable plaintiff’s case where an infant son was abandoned by his mother and raised by extended family members in the Philippines after his mother moved to Canada.

The mother had little to do with her son and he first met her at age 7. She provided some financial support, but the court was suspicious that it had been adequate.

They met in 2018, and had an argument about her financial support of her niece. The deceased never spoke to her son again and he produced evidence of many unanswered text messagesto his late mother.

The deceased had left her only child, 25% of a $900,000 estate, with the residual 75% going to her niece and sister.

The court varied the will, to instead provide 60% to the abandoned adult child, and 20% each to her sister and niece.

The Law

The leading authority on wills variation in British Columbia, albeit decided under an earlier statute, is Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, 1994 CanLII 51. The provision considered in Tataryn is worded slightly different than s. 60 of WESA, but the concepts are the same: Scurek v. Scurek, 2021 BCCA 178 at para. 7.

[39] In Tataryn, the Supreme Court of Canada said that a court has broad discretion to make orders that are just and equitable in the specific circumstances of the case, and in light of contemporary standards. The statute must be read in light of modern values and expectations in a search for contemporary justice: Tataryn at 814–816.

Dunsdon v. Dunsdon, 2012 BCSC 1274, in cases decided after Tataryn, courts have considered a number of factors as informing the existence and strength of a testator’s moral duty to independent adult children. The same considerations are also relevant to determining what constitutes adequate, just, and equitable provision in the circumstances of the case: paras. 131, 134.

The factors were set out at para. 134 and include:

· relationship between the testator and claimant, including abandonment, neglect, and estrangement by one or the other;
· size of the estate;
· contributions by the claimant;
· reasonably held expectations of the claimant;
· standard of living of the testator and claimant;
· gifts and benefits made by the testator outside the will;
· testator’s reasons for disinheriting;
· financial need and other personal circumstances, including disability, of the claimant;
· misconduct or poor character of the claimant;
· competing claimants and other beneficiaries.

In McBride v. Voth, 2010 BCSC 443, Ballance J. wrote:
•
“The modern judicial trend indicates that the court will enquire into the role played by the testator in the estrangement or relationship breakdown, and where it is seen to be largely the fault of or at the insistence of a testator, it will likely not negate a testator’s moral duty, and may even enhance it. The weight of the authorities also indicates that the court may discern a moral duty as a means of rectifying the testator’s childhood neglect of the children”

Contesting Wills BC and Wills Variation 2023

disinherited.com has contested wills in BC for 50 years using the provisions of the wills variation provisions.

 

The BC Court of Appeal in the decision Tom v. Tang 2023 BCCA 221 is a significant wills variation case .

The deceased left valid and factually rational true reasons for leaving 85% of her estate to two of five children, but the court held that the test is one of the objective judicious parent as to whether the parents moral obligation had been met.

The appeal court upheld the variance of the will where the two major beneficiaries shares were reduced to 30% each, while the other three remaining children each received 13 1/3%.

The parent had left a will in which she stated that 85% of her estate was going to two of her children as they provided her care in the last three years of her life.
The trial judge varied the will and the appeal court upheld that distribution. The appellants argued that the testator’s wishes should be respected as she had valid and rational reasons for the distribution that she made.

The respondents successfully argued that the test should be one of the objective judicious testator.

The appeal court clarified that previous significant decisions such as Bell v Roy (11993) 75 BCLR (2d) 213 Hall v hall 2011 BCCA 354 and Kelly v baker (1996) 82 BCAC 150 and the perceived conflict between those decisions and the Supreme Court of Canada’s Tataryn v Tataryn Estate ( 1994) 2 SCR 807.

The court held that the aforesaid Bell, Hall, and Kelly cases do not stand for the principle that a testator’s unequal treatment of adult children must be deferred to if the reasons given for the unequal distribution, or valid and rational. Those cases read in context recognizes the testator’s moral duty to adult children must be assessed using the objective standard of the reasonable testator, and provide that the moral duty may be negated where there is just cause.

In the Tom v Tang decision the court held that the testator did not meet the objective standard of a judicious parent, given that each child had a significant moral claim arising from their contributions to the family economy.