Category: Probate Litigation

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.

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

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.

In accordance with R. 6(2) of the Court of Appeal Rules, B.C. Reg. 120/2022, is required to file and serve a notice of appeal not more than 30 days after the order was pronounced.

Section 32 of the Court of Appeal Act, S.B.C., 2021, c. 6, provides that a justice may extend a time limit in the Act or Rules, including for filing and serving a notice of appeal.

The burden is on the applicant to establish that the criteria for granting such an extension are met: Rapton v. British Columbia (Motor Vehicles), 2011 BCCA 71 at para. 19.

In considering an application to extend time to file and serve an appeal, certain factors are described in Davies v. C.I.B.C. (1987), 15 B.C.L.R. (2d) 256 at 259–260 (C.A.):

a. Was there a bona fide intention to appeal?
b. When were the respondents informed of the intention?
c. Would the respondents be unduly prejudiced by an extension of time?
d. Is there merit in the appeal?
e. Is it in the interest of justice that an extension be granted?

The interests of justice is “an overriding question and embraces the first four questions”: Davies at 260–261.

But it is “not all that comprises the fifth factor.” The interests of justice include a myriad of factors, such as the interests of the parties and compliance with the Rules of Court: Clock Holdings Ltd. v. Braich, 2009 BCCA 437 at paras. 23–24.