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”

Mortgage Obtained By Fraud Not Valid

Le v Chan ( Trustee) 2023 BCSC 1654 confirmed the law that a mortgage obtained by fraud, such a forgery is invalid.

 

 A mortgage obtained by fraudulent means does not constitute a valid or enforceable charge on title to land in British Columbia: Credit Foncier Franco-Canadien v. Bennett (1963), 43 W.W.R. 545, 1963 CanLII 839 (BCCA) and Reliable Mortgages Investment Corp. v. Chan, 2011 BCSC 1080 at para. 39. Further, a mortgage granted by a party who lacks the valid authority to grant the said mortgage is invalid which accords with the legal principle of nemo dat quod non habet – one cannot give what one does not have: Reliable at para. 31; see also Land Title Act, RSBC 1996, c 250, ss. 25.1, 26(1), 26(2).

[34]       Courts have held that when a mortgage application is found to be a forgery, the mortgage registered against title is a nullity, and will be unenforceable and the court will direct the registrar to discharge the mortgage: Homewood Mortgage Investments Ltd. v. Lee, 2008 BCSC 512.

[35]       Put simply, a mortgage acquired fraudulently or for which the supposed mortgagor lacked the authority to grant is invalid and unenforceable. However, to rebut the deemed presumption that the registration evinces an interest, the party alleging the fraud must adduce evidence to establish the fraud. Accordingly, in the case at bar, Ms. Chan bears the evidentiary burden to provide “clear and cogent” evidence to establish, on a balance of probabilities, that the Mortgage was obtained by fraud and registered on title fraudulently through forged documents. As Madam Justice Wedge helpfully explained in Lloyd Investments Ltd. v. Wang, 2023 BCSC 303:

[22] As the plaintiff in this action, Lloyds bears the legal onus to prove its case against Ms. Wang.  However, the evidentiary onus is on Ms. Wang to prove that the Lloyd Mortgage was entered into fraudulently through a forged power of attorney.  The onus of proof with respect to the allegation of fraud advanced by Ms. Wang is on a balance of probabilities.  Some authorities suggest that this onus can be met only with clear and cogent evidence.  In the case of Bank of Montreal v. Chan, 2004 BCSC 841 [Chan], this Court held as follows at paras. 23-24:

It is common ground that the validity of the mortgage rises or falls with the validity of the powers of attorney.

The Chan respondents bear the onus of proving the powers of attorney to be forgeries.  Although the standard of proof is on a balance of probabilities, the onus will not be met except with clear and cogent evidence: Continental Insurance Co. v. Dalton Cartage Ltd., 1982 CanLII 13 (SCC), [1982] 1 S.C.R. 164, 131 D.L.R (3d) 559 (S.C.C.) at 169-170.

[23] The “clear and cogent evidence” standard is not, however, a departure from proof on a balance of probabilities.  In Wanson (Bristol) Development Ltd. v. Sahba, 2018 BCCA 260, the Court, after reviewing the case law on the issue, said at paras. 28-29: “What these cases stress that the party with the burden of proving a fact in issue must prove it on a balance of probabilities and on no higher standard, even if the fact involves criminal or other moral blameworthy conduct.”

[24] Most recently, in British Columbia (Director of Civil Forfeiture) v. Angel Acres Recreation and Festival Property Ltd., [2023 BCCA 70], the Court reminded us at paras. 162 to 164 of the decision of the Supreme Court of Canada in F.H. v. McDougal, 2008 SCC 53.  In that decision the Court “put to rest any debate that a heightened standard of proof applies in civil cases involving criminal or morally blameworthy conduct”.  The level of scrutiny applied by the finder of fact “does not change with the seriousness of the case”.  However, the quality of the evidence required to meet the balance of probabilities standard “will depend upon the nature of the claim and of the evidence” adduced.

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.

BC Lawyer-Disinherited. When Do Spouses Separate?

Trevor Todd and Jackson Todd have been doing contested estate disputes for over sixty combined years, including acting for separeted spouses.

 

Dixson v Moss 2023 BCSC 1248 discussed the law relating to a contested claim as to when the spousal parties separated.

The date of spousal separation can be very important in some estate litigation claims.

The question when the parties separated is a question of mixed fact and law that requires the application of the legal test for same.

In S. (H.S.) v. D. (S.H.), 2016 BCSC 1300. While that was a decision under the former FRA, the court referred and relied upon decisions under the FLA in considering the principles that apply to the determination of whether parties have separated:

[42] … The Court’s task is to assess objectively, on the totality of the evidence, whether one spouse held a settled intention to separate and communicated that intention through his or her conduct to the other spouse. An express statement is only one of the factors for consideration in what is necessarily a contextual analysis.

[43] The Ontario Court of Appeal in Re Sanderson and Russell (1979), 1979 CanLII 2048 (ON CA), 24 O.R. (2d) 429 (C.A.), held, in the context of a common law relationship, that a relationship has come to an end “when either party regards it as being at an end, and by his or her conduct, has demonstrated in a convincing manner that this particular state of mind is a settled one”: at 432. This statement was cited with approval by the Supreme Court of Canada in Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65 at para. 42.

[44] In Gosbjorn v. Hadley, 2008 BCSC 219, Madam Justice Gray adopted the analysis articulated in Hodge:

[142] Using the analysis suggested in Hodge, parties cease to live and cohabit in a marriage-like relationship when either party regards the relationship to be at an end, and by his or her conduct, demonstrates in a convincing manner that this particular state of mind is a settled one. [Emphasis added.]

[45] In Nearing at para. 54, Madam Justice Fleming recognized that there must be a unilateral intention, as well as “action consistent with that intention”. At para. 56, she observes that “a clear statement by one of the parties of his or her desire to terminate the relationship” is one of a range of factors a court will consider in determining whether there has been a separation. In my view, the Court did not endorse the notion that such a statement is necessary.

[46] The Court in Weber v. Leclerc, 2015 BCCA 492, recently considered the definition of “spouse” under the Family Law Act. The Court reviewed the appellate authorities that have evaluated the characteristics of a “marriage-like” relationship and observed that the jurisprudence has evolved in accordance with the changing societal norms surrounding marriage. The Court must apply a holistic approach, having regard to all aspects of the relationship. While the Court must consider the evidence expressly describing the parties’ intentions, the Court must test that evidence by considering whether the objective evidence of the parties’ lifestyle and interactions is consonant with those intentions: at para. 23.

[143] The determination of a date of separation can be a somewhat arbitrary exercise. The dissolution of a long-term relationship is often a long and convoluted process. The Court must attempt to locate the point at which at least one of the parties regarded the relationship as at an end, and by their conduct demonstrated in a convincing manner that that state of mind was a settled one.

[144] In making this determination, s. 3(4)(b) of the FLA provides:

(b) the court may consider, as evidence of separation,
(i) communication, by one spouse to the other spouse, of an intention to separate permanently, and
(ii) an action, taken by a spouse, that demonstrates the spouse’s intention to separate permanently.

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.

Admissibility of Expert Opinion Evidence

      The law governing admissibility of expert opinion evidence stems from the Supreme Court of Canada’s decision in R. v. Mohan, [1994] 2 S.C.R. 9, 1994 CanLII 80, subsequently clarified in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 [White Burgess]. The party seeking to admit the evidence must satisfy each element in a two-stage inquiry:

  1. a)At the threshold stage, the party seeking to admit the evidence must demonstrate that the evidence satisfies the Mohan That is, the evidence must be relevant, necessary, absent of an applicable exclusionary rule, and that the expert providing that evidence is properly qualified: White Burgessat para. 23.
  2. b)At the second stage, the trial judge, exercising the gatekeeping role, must decide whether the benefits of admitting the evidence outweigh its potential risks: White Burgessat para. 24.

The element of a “properly qualified expert” under Mohan requires that the expert has acquired special or peculiar knowledge through study or experience in respect of the matters the expert undertakes to testify: McEwan v. Canadian Hockey League, 2022 BCSC 1104 at para. 186. The court must be satisfied that the person under consideration has expertise with respect to the opinions to be advanced, which is something distinct from just familiarity or involvement: Hughes v. Haberlin, 49 B.C.L.R. (3d) 366, 1997 CanLII 2186 at paras. 14 and 21 (S.C.).

In addition, as noted in R. v. Abbey, 2017 ONCA 640 at para. 48, a properly qualified expert includes the requirement that the expert be willing and able to fulfil the expert’s duty to the court to provide evidence that is:

  1. a)impartial,
  2. b)independent, and
  3. c)

Expert witnesses must be impartial in the sense that their evidence must reflect an objective assessment of the questions presented to them. They must be independent in the sense that their evidence must be the product of their independent judgment, uninfluenced by the party who retained them or the outcome of the litigation. An expert’s lack of impartiality and/or independence is relevant not just to the weight to be given to the evidence under the second stage of the test, but also to its admissibility under the first stage of the test, to be addressed under the “qualified expert” element of the Mohan framework: McEwan at paras. 182–183.

Survey evidence may be admissible, assuming the survey responses are elicited by a relevant question, where the survey is both reliable, “in the sense that if the survey were repeated it would likely produce the same results”, and valid, “in the sense that the right questions have been put to the right pool of survey respondents in the right way, in the right circumstances to provide the information sought”: Masterpiece Inc. v. Alavida Lifestyles Inc., 2011 SCC 27 at para. 94. Like all expert evidence, survey evidence must be prepared by a properly qualified expert: Tokai of Canada Ltd. v. Kingsford Product Company, LLC, 2021 FC 782 at para. 25.

Evidence tendered on an application for certification must meet the usual criteria for admissibility: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2008 BCSC 1263 at para. 25; McEwan at paras. 29–32. The court exercises an important gatekeeping function in a proposed class proceeding and must not “shirk” its responsibility to consider the admissibility of evidence: McEwan at para. 31, citing Carter v. Ford Motor Company of Canada, 2021 ONSC 4137 at para. 9.

 

Criteria For a Marriage Like Relationship-2023

The court in Bellerose v Reda 2023 BCSC 748 reviewed the law re marriage like relationships and concluded in this case that one of the parties never intended to be in a marriage like relationship and made that clear to the other party throughout their relationship on many occasions.

The principles and approach to be applied when deciding whether two persons have been in a marriage-like relationship can be summarized as follows:

a) The burden is on the claimant to prove that they meet the definition of “spouse”. The standard is on a balance of probabilities (Voth v. Martin, 2019 BCSC 834 at para. 8, citing F.H. v. McDougall, 2008 SCC 53 at para. 49).

b) Section 3 of the Act imposes both a two-year continuous “cohabitation requirement”, and a marriage-like “relationship requirement”. The cohabitation requirement is approached flexibly and may be satisfied even if the parties may have lived for extended periods at different locations (Hu v. Lee, 2022 BCSC 56 at paras. 41–42; Thompson v. Floyd, 2001 BCCA 78 at paras. 22–36).

c) The determination of whether a relationship was marriage-like requires a holistic approach in which all of the relevant factors are considered and weighed, but none are treated as being determinative of the question (Austin v. Goerz, 2007 BCCA 586 at para. 62).

d) While a “checklist” approach should not be employed, it can be helpful to consider the presence or absence of commonly accepted indicators of the sorts of behaviour that society, at a given point in time, associates with a marital relationship (Weber v. Leclerc, 2015 BCCA 492 at para. 25).

e) Such indicators of a marriage-like relationship may include: (1) shared shelter; (2) sexual and personal behaviour; (3) services; (4) social activities; (5) economic support and children; and (6) societal perception of the couple (M. v. H., 1999 CanLII 686 (S.C.C), [1999] 2 S.C.R. 3 at para. 59; citing Molodowich v. Penttinen (1980), 1980 CanLII 1537 (O.N.S.C.) at para. 16 – these are sometimes referred to as the “Molodowich factors”).

f) Evidence of the subjective intentions of the parties is important to the determination of whether the relationship was marriage-like. However, this evidence must be tested against objective evidence of their lifestyle and interactions, which will provide direct guidance on the nature of the relationship (Dey v. Blackett, 2018 BCSC 244 at para. 195).

g) A person is either a “spouse” or is not. There is no middle ground. People may live together interdependently and yet fail to establish that they developed the kind of psychological and emotional union associated with marriage (C.F.M. v. G.L.M., 2018 BCSC 815 at para. 10).

h) A marriage-like relationship is akin to a marriage without the formality of a marriage. However, it must be borne in mind that people treat their marriages differently and have different conceptions of what marriage entails (Mother 1 v. Solus Trust Company, 2019 BCSC 200 at para. 143).

See also: Coad v. Lariviere, 2022 BCCA 222 at para. 127; and Jones v. Davidson, 2022 BCCA 31 at paras. 21–24.

They effectively confirm that there is no specific definition of whether marriage-like relationships exist. In particular, such relationships are not simply defined by financial dependence, sexual relationships, or the mingling of property and finances. In sum, their existence ought not to be determined through a formulaic “checklist” approach, but rather through a contextual and holistic examination of all of the relevant aspects of the parties’ relationship.