Setting Aside a Default Judgement

Setting Aside a Default Judgement

Miracle Foods v. D&H Enterprises Ltd.  1979] B.C.J. No. 1965, 10 B.C.L.R. P 58. Establishes a four part test for setting aside a default judgement.

A default judgement is obtained when the plaintiff properly serves a defendant with a Petition or a Notice of Claim and the defendant fails to file a Response at the Court a Registry within the time allowed by the Surpeme Court rules.

The Test:

  1. That the applicant did not willfully or deliberately fail to enter an appearance or file a defence to the plaintiff’s claim,
  2. That the application to set aside the default judgment was made as soon as reasonably possible after obtaining knowledge of it, or explain any delay in bringing the application,
  3. That the applicant has a meritorious defence or at least a defence worthy of investigation, and
  4. Establish the foregoing to the satisfaction of the court through affidavit material. The court’s application of this test involves an exercise of discretion when assessing the weight given the test’s individual factors and reasonableness of the defendant’s explanation in each case.

Where a defendant has not received notice, the granting of default judgment becomes a failure of natural justice. The defendant has been deprived of their right to be heard and the default judgment is considered a nullity, which the defendant is entitled to have set aside as of right.

See Bache Halsey Stuart Shields Inc. v. Charles Estate [1982] B.C.J. No. 1757, 40 B.C.L.R. 103

Adverse Inference

Adverse Inference

Bronson v Hewitt 2010 BCSC 169 reviewed the law of adverse inference, which probably is not utilized as much by counsel as they could.

It typically arises when a key witness who would normally be expected to testify, does not.

Adverse Inference

[323] The plaintiffs submit that the court should draw an adverse inference against both Eugene and Howard from Eugene’s failure to testify at trial. They submit that given Eugene’s role in these proceedings, his evidence is crucial in regard to several matters at issue. In support of their submission, they cite Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada, 2d ed. (Toronto: Butterworths, 1999) where the authors state at 297:

In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it.

[324] The defendants submit that such an inference should not be drawn in this case. Mr. Dives on behalf of Eugene notes that Eugene is not simply a witness, but also a party and, more importantly, a defendant in a case in which the plaintiff bears the burden of proof. He submits that a defendant is entitled to say: “you have not made out your case so there is nothing to answer.” He submits that the plaintiffs’ submission is an attempt to shift the burden of proof by making the defendant respond to matters that the plaintiffs have not proved.

[325] In R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, the court at paras. 25-28

reviewed the principles governing the drawing of adverse inferences:

25. The general rule developed in civil cases respecting adverse inferences from failure to tender a witness goes back at least to Blatch v. Archer (1774), 1 Cowp. 63, 98 E.R. 969, where, at p. 65, Lord Mansfield stated:

It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.

26. The principle applies in criminal cases, but with due regard to the division of responsibilities between the Crown and the defence, as explained below. It is subject to many conditions. The party against whom the adverse inference is sought may, for example, give a satisfactory explanation for the failure to call the witness as explained in R. v. Rooke (1988), 40 C.C.C. (3d) 484 (B.C.C.A.), at p. 513, quoting Wigmore on Evidence (Chadbourn rev. 1979), vol. 2, at para. 290:

In any event, the party affected by the inference may of course explain it away by showing circumstances which otherwise account for his failure to produce the witness. There should be no limitation upon this right to explain, except that the trial judge is to be satisfied that the circumstances thus offered would, in ordinary logic and experience, furnish a plausible reason for nonproduction. [Italics in original; underlining added.]

27. The party in question may have no special access to the potential witness. On the other hand, the “missing proof” may lie in the “peculiar power” of the party against whom the adverse inference is sought to be drawn: Graves v. United States, 150 U.S. 118 (1893), at p. 121. In the latter case there is a stronger basis for an adverse inference.

28. One must also be precise about the exact nature of the “adverse inference” sought to be drawn. In J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 297, para. 6.321, it is pointed out that the failure to call evidence may, depending on the circumstances, amount “to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it” (emphasis added), as stated in the civil case of Murray v. Saskatoon, [1952] 2 D.L.R. 499 (Sask. C.A.), at p. 506. The circumstances in which trial counsel decide not to call a particular witness may restrict the nature of the appropriate “adverse inference”. Experienced trial lawyers will often decide against calling an available witness because the point has been adequately covered by another witness, or an honest witness has a poor demeanour, or other factors unrelated to the truth of the testimony. Other jurisdictions also recognize that in many cases the most that can be inferred is that the testimony would not have been helpful to a party, not necessarily that it would have been adverse: United States v. Hines, 470 F 2d 225 (3rd Cir. 1972), at p. 230, certiorari denied, 410 U.S. 968 96 (1973); and the Australian cases of Duke Group Ltd. (in Liquidation) v. Pilmer & Ors, [1998] A.S.O.U. 6529 (QL), and O’Donnell v. Reichard, [1975] V.R. 916 (S.C.), at p. 929.

[326] In this case, counsel for both Eugene and Howard offered explanations for their decision not to call Eugene. Mr. Dives advised that Eugene was not called because, in his view, there was no case to meet. Further, he says the expenses involved in bringing Eugene from Florida to testify at the trial would have been significant. He did not suggest, however, that Eugene’s attendance was financially impossible.

[327] Mr. Harris, on behalf of Howard, further advised that he had no special access to Eugene as a witness and had no way of compelling his attendance. He does not suggest, however, that Eugene would have refused to testify on Howard’s behalf if asked.

[328] Both Mr. Dives and Mr. Harris note that Eugene was extensively examined for discovery and the nature of his evidence is known to the plaintiffs. They submit that if the plaintiffs thought that Eugene’s evidence would be of assistance to them they should have taken steps to compel his attendance pursuant to the adverse witness rule (Rule 40(17)).

[329] As noted by Saunders J.A. in Buksh v. Miles, 2008 BCCA 318 at para. 30, 83 B.C.L.R. (4th) 162, the notion of adverse inference is related to the best evidence rule. The inference should only be drawn in regard to the non-production of witnesses whose testimony would be superior in respect of the facts to be proved.

Section 58 WESA: Journal Not a Will

Section 58 WESA: Journal Not a Will

Re Hadley Estate 2016 BCSC 765 held that an unwitnessed  journal entry written by the deceased in her daily entry and stated to be  ” my last will”  will, was not in fact her last valid will under the curative provisions of section 58 WESA.

This decision was upheld on appeal- see Hadley Estate 2017 BCCA 311.

The administrator of her estate brought an application under section 58 of  the wills estates succession act, WESA  for determination. If the September 2014 journal entry was a will or  was a 2008 will the last valid will .

After reviewing several factors both pro con, the court found that the following rambling  journal entry was not a valid will:

[p. 1]
Sept. 1, 2014 Monday Tonight @ 8.30 pm I believe I had a something [?] to me. I am confused now. 9 pm. At 6 pm I went to English Bay & watched the sunset – talked to the life guard – at 8 pm I walked home – used my walker. I pushed my walker along Davie St to the Cardero Mini park in front of our our [sic] building – Seacrest Apt. Sat on my walker – At 8 pm I went inside “Seacrest – parked my walker inside the locker room & went up the stairs to my suite [ . . . ] Suddenly I had huge flashes in both my eyes – Zig Zag flashes like a up & down like a chart. – I could not could not see – the flashes were very bright – very strong – I tried to see I had no-one to phone Ginger phoned me – All was well – My niece lives in Windsor Ontario Mrs. Virginia Maziak-[phone no. omitted] I am somewhat dizzy now I had a terrible experience / frightening experience / flashes now. I ate a chocolate bar – [ ? ] glass peach cider – walked up & down my suite – scary. I hoped this would help me [ ? ]. [Suite no. ] Bullies me every day.
[p. 2]
Continued
September 1, 2014.. Monday.
This is my last Will.
Because of the daily harassment by [individuals at Seacrest]. I have been unable to [?] my personal needs – thus I put off seeing a lawyer to sue them & Seacrest Company Shareholders & to change my will. As of this time in my life I leave all my estate (my money in bonds & my apartment #205 Seacrest Apts. Ltd. Company – self owned to the following people who were kind to me (1) My niece Virginia Maziak who live lives in Windsor Ontario @ [address omitted]. Virginia (Ginger) was continually kind to me. (2) Bruce Macdonald — [phone no. omitted] Because he contributed so much to save the Hollow Tree in Stanley Park and was kind to me. (3) Daniel Pierce [phone no. omitted] a young Film Producer who worked so hard and was kind to me. It is not common knowledge that I am an orphan as a child. I have no heirs. My husband John Donald Hadley died and so did my only child – Karen Margaret Hadley. I struggled all my life to work and save some money to be independent. I have no debts. I have some bills to pay now – Seacrest Co. Apartment 1947 must pay for repairs, windows, ceiling walls, etc.
[p. 3]
Continued Eleanor Lena Hadley (Sanchuk) born Sept. 15, 1921
I hope to see Mr. David Ebby in person to write this will. I just had a scare – that prompted me to hastily [?] write this will. Many people have helped me. However [illegible] for personal reasons they are not included in my will.
Also, I do have some old penny stocks that faded away and in my box (deposit) Royal Bank corner of West Georgia & Burrard Streets where my previous will is.
I live in Seacrest Apts. ltd at the present time. Since 1997 I have been bullied & harassed & denied my entitlements by [individuals named]. They should be sued for destroying 17 years of my life. So that I am living in fear to this day. I could not sell my suite because [individual named] in 1997 put an a unhealthy dryer vent for the whole building (Seacrest) under my kitchen windows
11.20A.M. EH
[p. 4]
My will Continued:
Re: If Mr. David Ebby is willing I would like him to sue all the Seacrest Shareholders named in this will for criminally destroying my life since 1997 when [individual named] unlawfully all the Seacrest Co 20 Shareholders Basic Rate a/os [?] 1947 Original Agreement – I have the original Memorandum. Because of ill health due to daily harassment by those named in my will I was and am presently too ill physically to go to court. I tried this [?] in the Small Court. At that time Judge Gee Gee said – that I was in the wrong Court. I do not have the original Court Trial documents (only the edited document which omits my complaints entirely. Why Judge Gee did this is a puzzle to me. Also my lawyer [individual and firm named] failed to present my case. Because of the daily harassment by [individuals named] to this day I was & am unable to bring my case to trial again. These 3 people / shareholders / Seacrest have also used the computer to [illegible] my name and [illegible] a fake document.

THE  LAW

The curative provisions of section 58 conferred discretion on the court to relieve against the consequences of noncompliance  with the  testamentary formalities  in a “record, document or writing or marking on a will or document”.
In prescribed the circumstances, section 58 permits the court to address and your issues of formal invalidity  in such documents .
The leading case In British Columbia is Estate of young  2015 BC SC 182 .
Young followed the law  of Manitoba in their leading case of George v.  Daily (  1997)  143 DLR (4th) 273  ( Man. CA), which stated :
51      Because of the similarity between s. 58 and the curative provision in Manitoba’s Wills Act, C.C.S.M., c. W-150, in Young, Dickson J. (as she then was) reviewed a number of Manitoba authorities, including the leading case of George v. Daily (1997), 143 D.L.R. (4th) 273 (Man. C.A.). She then wrote by way of summary (at paras. 34-37) [underlining added]:
[34] As is apparent from the foregoing, a determination of whether to exercise the court’s curative power with respect to a non-compliant document is inevitably and intensely fact-sensitive. Two principal issues for consideration emerge from the post-1995 Manitoba authorities. The first [is] an obvious threshold issue: is the document authentic? The second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions, as that concept was explained in George.
[35] In George the court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.
[36] The burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establishing their existence in a particular case. Although context specific, these factors may include the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document: [citations omitted].
[37] While imperfect or even non-compliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased’s testamentary intention: George at para. 81.
52      Extrinsic evidence is admissible when considering whether a document is a valid will and whether the deceased had testamentary intent: see Yaremkewich Estate (Re), 2015 BCSC 1124, at paras. 31-32. Watchuk J. observed further (after reviewing Young and George), at para. 37:

Section 46 WESA and Lapsed Gifts

Section 46 WESA deals with the lapsed gifts in wills often caused by poor will drafting ,  failure by the parties to properly consider what the future may bring , or the beneficiary predeceasing, any of which results in   disappointed beneficiaries not receiving the intended gift.

Instead of  wording the will’s bequest of  “any real property that I own at the time of my death” , many will- drafters instead incorrectly state a particular address of a particular property, owned at the time of the will making,  but long sold before death.

The gift of real property  in that situation has lapsed simply because it ceased to exist.

Almost by definition, a lapsed gift results when a substantial change in circumstances occurs between the execution of the will and death, so that the gift has either failed or ceased to exist.

The lapsed gift often results from both poor drafting together with the simple fact that many people do not realistically ponder their aging and succession and just resort to avoidance.

Very often the beneficiary predeceases  the will- maker at which time the “anti-lapse rule of S 46 of WESA (Wills, Estates and Succession Act) ”  establishes a default scheme for determining alternative beneficiaries of a lapsed gift.

The Default Scheme of Section 46 WESA (Replacing  and altering the previous S. 29 Wills Act)

Section 46 applies to all gifts of any nature, whether specific in nature or residual but only if there is no contrary  intention stated in the will.

If the will- maker has named an alternate beneficiary for a gift that has lapsed, then in that event the alternate beneficiary has the first priority to inherit the gift, no mater what the reason for the failure of the gift.

If there was no alternative beneficiary of the gift , and the named beneficiary is  either a sibling, or as descendant of the will- maker, then the named beneficiary’s descendants will be entitled to the failed gift.

If there was no descendant of the will- maker , then the gift will go to the residual beneficiaries in  proportion to their named interests in the will.

When gifts cannot take effect

46 (I) If a gift in a will cannot take effect for any reason, including because a beneficiary dies before the will-maker, the property that is the subject of the gift must, subject to a contrary intention appearing in the will, be distributed according to the following priorities:

(a) to the alternative beneficiary of the gift, if any, named or described by the will-maker, whether the gift fails for a reason specifically contemplated by the will-maker or for any other reason;

(b) if the beneficiary was the brother, sister or a descendant of the will-maker, to their descendants, determined at the date of the will-maker’s death, in accordance with section 42(4) [meaning of particular words in a will];

(c)  to the surviving residuary beneficiaries, if any, named in the will, in proportion to their interests.

(2) If a gift cannot take effect because a beneficiary dies before the will-maker, subsection (I) applies whether the beneficiary’s death occurs before or after the will is made

The Bogus Expert

The Bogus Expert

A bogus expert was recently discussed in a sexual assault appeal,  JP v BG 2016 BCCA 91 , when the Court labelled a bogus expert report as a” fraud on the court”.

The so called expert was in fact a recipient of a “diploma mill” and had very little in the way of credibility or credentials.

THE COURT STATED:

11      This brings me to the primary bases on which B.G. seeks an extension of time to appeal the family case; that there has been a fraud committed on the court by a witness called by the mother, Claire R. Reeves. Despite objection by the Province and B.G., Claire Reeves was permitted to give expert opinion evidence in the area of child sexual abuse and incest. Her evidence was lengthy, and heard over two days. She also filed a written report.

12      Claire Reeves has not responded to the allegations made, although counsel for J.P. has spoken with her. Thus, the comments I make about her relate to allegations and are not findings of fact.

13      She filed an expert report, and presented herself with qualifications that included a Doctorate in Clinical Counselling, Masters of Science in Clinical Psychology, Bachelor of Science in Family Mediation, and a Bachelor of Arts in Journalism.

14      Counsel for B.G. has examined these qualifications and discovered that they all appear to be online degrees obtained from unaccredited organizations, referred to colloquially as “diploma mills”. Other evidence was led to demonstrate that Claire Reeves was allegedly not truthful with respect to her employment, expertise and experience in court. For example, despite saying that she had testified in multiple cases in the United States, she does not appear on a United States expert witness data base, nor does she appear in any case after an extensive search conducted by a representative of LexisNexis. In other words, there is strong evidence to support the allegation that a fraud has been committed on the court.

15      In addition, B.G. submits, Reeves based much of her opinion on a theory called “child sexual abuse accommodation syndrome”, popularized in the 1980’s and 1990’s. This theory suggests that certain behaviours of children are consistent with sexual abuse. This theory was discredited as a diagnostic tool by the doctor who advanced the theory in the first place, and has not been admitted into courts as proof of sexual assault for decades. For example, see R. v. K. (A.) (1999), 45 O.R. (3d) 641 (Ont. C.A.) at paras. 61-62, 86, 125-129.

At paragraph 29 Bennett JA labelled such bogus expert evidence s a “ fraud of the court”.

Joint Tenancy Severed By Trust

Joint Tenancy Severed By Trust

A  joint tenancy of co owned property was severed by the signing of a trust agreement by one of the co owners held the BC Court of Appeal in  Public Guardian BC v Mee 1972 WWR 424 .

The respondent was the joint tenant with her former husband of real property.

Following divorce proceedings the husband executed a declaration of trust which was not registered at the Land Registry Office but was left with a solicitor.

By the document he constituted himself a trustee of his undivided one-half interest in the property for his infant son “until the sale or other disposition, or until the said William Donald Mee attains the full age of twenty-one (21) years, in trust for the said William Donald Mee to permit the said lands and premises to be used as a residence for himself, his mother and sisters.”

Further provision was made that if the property were sold one-half of the proceeds of sale were to be held in trust for the son, to be used for his education, and given to him on his becoming 21. The husband died some 5 years later and the wife made an application, which was successful, for a declaration that the property vested in her by right of survivorship.

The Public Trustee, on behalf of the infant appealed and the appeal was allowed.

The execution of the trust agreement was not consistent with unity of title and the joint tenancy was therefore severed and became a tenancy in common..

THE  LAW

A declaration of trust had the same binding effect as a transfer to a trustee and could as effectively sever a joint tenancy as a transfer made to a trustee; the trust created by the father in the case at bar was completely constituted and was binding on his heirs, executors, administrators and assigns.

It followed that a severance of the joint tenancy was effected: Milroy v. Lord (1862), 4 De G.F. & J. 264, 45 E.R. 1185; Stonehouse v. Attorney General of British Columbia, 33 W.W.R. 625, 26 D.L.R. (2d) 391, affirmed [1962] S.C.R. 103, 37 W.W.R. 62, 31 D.L.R. (2d) 118 applied.

6       There is no doubt, and it was conceded by the respondent in the Court below as well as in this Court, that a vaid declaration of trust (although not registered in the appropriate Land Registry Office) could effectively sever a joint tenancy to the same extent as a transfer made to a trustee would do. The principle that a declaration of trust has the same binding effect as a transfer to a trustee has been long the law and is set out in the oft-cited case of Milroy v. Lord (1862), 4 De G.F. & J. 264, 45 E.R. 1185, wherein Turner L.J. at p. 1189 said:

… in order to render a voluntary settlement valid and effectual, the settlor must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him. He may of course do this by actually transferring the property to the persons for whom he intends to provide, and the provision will then be effectual, and it will be equally effectual if he transfers the property to a trustee for the purposes of the settlement, or declares that he himself holds it in trust for those purposes … but, in order to render the settlement binding, one or other of these modes must, as I understand the law of this Court, be resorted to, for there is no equity in this Court to perfect an imperfect gift.

Consolidation of Court Actions

Consolidation of Court Actions
 It is not uncommon that two estate cases are commenced at the same time that relate to the same estate, and in such situations an order is often made for consolidation of the court actions or alternatively, that they be heard at the same time by the same judge.
THE  LAW
Rule 22-5(8) of the Supreme Court Civil Rules provides:
Consolidation
(8) Proceedings may be consolidated at any time by order of the court or may be ordered to be tried at the same time or on the same day.
In The Owners, Strata Plan BCS 2854 v. Travelers Guarantee, 2013 BCSC 2428, Mr. Justice Steeves discussed the factors to be considered:
[14] It is well established in the authorities that I have a broad discretion under this Rule. As well, a number of previous cases have discussed consolidation applications. In these there appear to be acceptance of the following factors that should be considered:
• Whether there is a common question of law and fact. That is an important factor, but not the only one:
• Avoidance of multiplicity of proceedings.
• Savings of time and expense.
• Inconvenience to parties.
• Whether one action is at a more advanced stage.
• Whether an order results in delay of trial and so prejudice to one party; and
• Avoidance of inconsistent results.
This is from Merritt v. Imasco, [1992] B.C.J. No. 160, Shah v. Bakken (1996), 20 B.C.L.R. (3rd) 393, and ICBC v. Sam (1998), 24 C.P.C. (4th) 338.
Paragraph 37 from the Globalnet Management Solutions Inc. v. Aviva Insurance Company of Canada, 2013 BCSC 829, decision:
[37] Master Joyce held the issue is not to be determined solely on the basis of the commonality of issues, although that is described as important, and the first factor to be considered, but that after finding commonality the court should look at factors which were enumerated as follows:
(1) Will the order sought create a saving in pretrial procedures, (in particular, pre-trial conferences)?
(2) Will there be a real reduction in the number of trial days taken up by the trials being heard at the same time?
(3) What is the potential for a party to be seriously inconvenienced by being required to attend a trial in which that party may have only a marginal interest?
(4) Will there be a real saving in experts’ time and witness fees?
(5) Is one of the actions at a more advanced stage than the other?
(6) Will the order result a delay of the trial of one of the actions?
(7) If so, does any prejudice which a party may suffer as a result of that delay outweigh the potential benefits which a combined trial might otherwise have?
[16] A broad summary of my role under an application for consolidation is set out at paragraph 39 of Globalnet (citing Master Keighley in Sohal Estate v. Argitos, 2010 BCSC 916, para. 22) and that is: will the order to consolidate make sense in the circumstances?

Joint Venture Agreement

Joint Venture Agreement

Leontowicz Estate v Bakus 2016 BCSC 601 dealt with the validity of a trust relating to mining stakes where it was argued that the deceased had entered into a Joint Venture Agreement that must be based on whether or not there is a binding contract between the venturers.

The court reviewed the evidence and documents and concluded that the deceased in creating the trust did not intend to create a Joint Venture Agreement and discussed the law relating to same :

76      I reject the defendant’s proposition that the Deceased, Bakus and Dahl intended the Trust Declarations as joint venture agreements. A trust declaration may form part of a joint venture agreement, but it must itself constitute a valid trust and satisfy all the essential elements summarized earlier in these Reasons.
77      The invalid Trust Declarations in this case purported to create bare trusts. They do not declare or contain the terms necessary to constitute an enforceable joint venture. The actions Bakus undertook both with respect to the Deceased’s mineral claims and to his own did not represent performance of the terms of a joint venture agreement. The Trust Declarations did not authorize them and there is no joint venture agreement to be found that does so, either in writing or clearly inferable from the parties’ conduct, or from the surrounding circumstances.
78      The subject matter of the venture remains at best ill-defined and vague. In other words, if there was a form of contract, it would be void for uncertainty of essential terms. There is no expressed right of mutual control or management of the enterprise. There is no provision for a right of accounting or reimbursement for extraordinary contributions made to the venture of the kind Bakus said he had made and for which he should be compensated. The purported assets of the alleged joint venture are at best uncertain.

What is a Joint Venture Agreement?

[31] … Although its existence depends on the facts and circumstances of each particular case, and while no definite rules have been promulgated that apply generally to all situations … the following factors must be present [for a valid joint venture]:
(a) A contribution by the parties of money, property, effort, knowledge, skill or other asset to a common undertaking;
(b) A joint property interest in the subject matter of the venture;
(c) A right of mutual control or management of the enterprise;
(d) Expectation of profit, or the presence of “adventure”, as it is sometimes called;
(e) A right to participate in the profits;
(f) Most usually, limitation of the objective to a single undertaking or ad hoc enterprise.
75      To be valid, the joint venture agreement must have at its foundation a binding contract among the partners or joint venturers which contains all the essential terms of the agreement between the parties: Blue Line Hockey Acquisition Co., Inc. v. Orca Bay Hockey Limited Partnership, 2009 BCCA 34[Blue Line] at para. 10; see also, Palmar Properties Inc. v. JEL Investments Ltd., at paras. 37-41. In Blue Line, the parties’ intention to form a joint venture agreement was found in the express terms of the joint venture agreement and the trust declaration, which the defendants did not dispute were validly executed.

Court Costs Summarized

Court Costs Summarized

LeClair v Mibrella Inc. 2011 BCSC 533  summarized the law of court costs  and it  was recently re cited in Parmar Estate v Tiwari 2016 BCSC 540:

  1. costs represent an important instrument by which courts can either promote or, conversely, sanction given conduct. Rule 14-1(9) provides one means of achieving this overarching object;
  2. the onus is on the person who seeks to displace the usual rule that costs follow the event though Rule 14-1(9) conveys a discretion to the court, that discretion is to be exercised in a principled way;
  3. the exercise of discretion must be connected to the conduct or misconduct of a party in the litigation;
  4. the conduct in question can arise either at trial or at some earlier stage in the proceeding
  5. costs are not to be used to sanction a party whose evidence was exaggerated or who gave evidence in error; and
  6. where a court concludes that a party has intentionally or deliberately sought to mislead the court, that party will normally be deprived of costs.

Apportionment of Court Costs

Mawdsley v Meshen 2011 BCSC 923 , at para. 44:

[44] An essential principle articulated by the Court of Appeal in Worthington and Sutherland, and recently endorsed in Lewis v. Lehigh Northwest Cement Limited, 2009 BCCA 424, at para. 36, is that because apportionment is an exception to the usual rule, it is to be confined to relatively rare cases. Consequently, it would be overly simplistic to approach apportionment as being a given in all cases where the party who has been successful overall has lost one or more issues, even discrete issues, in the proceeding. There is no automatic entitlement to apportionment despite the aforesaid outcome. At the end of the day, apportionment is meant to achieve fairness in the particular circumstances. For that reason, care must be taken so that an apportionment does not result in an unintended or plainly unfair set-off of costs to a plaintiff who has enjoyed substantial success. Of necessity, apportionment is a matter of judicial discretion.

Expert Reports and Opinions

Expert Reports and Opinions

Many estate litigation cases involve the necessity of obtaining an expert opinion in the form of a written  report that summarizes the evidence that  the expert  will  and opinion give at trial. The expert must set out the factual assumptions and documents that were relied upon in forming the written expert report and opinion.

Expert reports are what is known in law as “opinion evidence and may contain hearsay evidence as per the following guidelines”

The Court of Appeal summarized the correct approach for dealing with opinion evidence of this type in Mazur v. Lucas, 2010 BCCA 473 (B.C. C.A.).

When deciding what weight to place on expert evidence, the trier of fact must assess the extent to which the expert relied on hearsay evidence and factual assumptions, and the reliability of those hearsay statements and assumptions. Madam Justice Garson for the Court summarized this as follows:

[40] From these authorities, I would summarize the law on this question as to the admissibility of expert reports containing hearsay evidence as follows:
  • An expert witness may rely on a variety of sources and resources in opining on the question posed to him. These may include his own intellectual resources, observations or tests, as well as his review of other experts’ observations and opinions, research and treatises, information from others — this list is not exhaustive. (See Bryant, The Law of Evidence in Canada, at 834-835)
  • An expert may rely on hearsay. One common example in a personal injury context would be the observations of a radiologist contained in an x-ray report. Another physician may consider it unnecessary to view the actual x-ray himself, preferring to rely on the radiologist’s report.
  • The weight the trier of fact ultimately places on the opinion of the expert may depend on the degree to which the underlying assumptions have been proven by other admissible evidence. The weight of the expert opinion may also depend on the reliability of the hearsay, where that hearsay is not proven by other admissible evidence. Where the hearsay evidence (such as the opinion of other physicians) is an accepted means of decision making within that expert’s expertise, the hearsay may have greater reliability.
  • The correct judicial response to the question of the admissibility of hearsay evidence in an expert opinion is not to withdraw the evidence from the trier of fact unless, of course, there are some other factors at play such that it will be prejudicial to one party, but rather to address the weight of the opinion and the reliability of the hearsay in an appropriate self-instruction or instruction to a jury.