Black’s law dictionary defines “injunction” as a “court order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury”.
In the Ng life support application blogged about yesterday, the patient’s family applied to the court for an injunction to raise the level of care from the lowest, level one, that the committee wife had lowered it down to, up to level four or at least two where it had previously been.
If granted the court may grant the injunction on an interim basis, for a specific period of time, or until trial for example, or could grant a permanent injunction raising the level of care for the remainder of his life.
It remains to be seen if the court will interfere with the medical decision and the decision of the committee to lower the care down to level one.
The test for granting an interim injunction is set out in the case of British Columbia (Attorney General) v. Wale (1986), 9 B.C.L.R. (2d) 333 at p. 345 (C.A.),
which provides a two-pronged test as follows:
First, the applicant must satisfy the court that there is a fair question to be tried about the existence of the right alleged and a breach of the right, actual or reasonably apprehended; and
2. Second, the balance of convenience must favour the pronouncement of the order.
Canadian Broadcasting Corporation v. CKPG Television Ltd., [1992] 3 W.W.R. 279 (tab 3, Book of Authorities #1 of Petitioners, p. 6) sets out the factors
that must be considered by the court in determining the balance of convenience:
The adequacy of damages as a remedy for the applicant if the injunction is not granted and for the respondent if an injunction is granted;
The likelihood that if damages are finally awarded they will be paid;
The preservation of contested property;
Other factors affecting whether harm from the granting or refusal of the injunction would be irreparable;
Which of the parties has acted to alter the balance of their relationship and so affect the status quo;
The strength of the applicant’s case;
Any factors affecting the public interest; an
Any factors affecting the balance of justice and convenience.
– See more at: http://www.disinherited.com/blog/interim-injunctions#sthash.Y1WWdXe5.dpuf
Independent Administrator Appointed For Estate Assets Pending Litigation, aka administrator pendent lite.
A common feature of many estate disputes is the acrimonious nature between the various claimants to the assets of the deceased.
In fact, certain cases become renowned within the profession and the courts for the extreme degree of the acrimony between the various parties.
The most recent decision of the ongoing saga Karsonas v. Karsonas Estate 2012 BCSC 1604 is yet another example of litigation that seemingly never will end.
Without going into the details of why and who were involved in the acrimony, suffice to say that there were many previous contested court applications relating to this estate, and appeals there from.
In situations such as this, smart counsel will or should apply to the Supreme Court of British Columbia for the appointment of an administrator pendente lite, ( Latin for “pending the outcome of the litigation”)
Mdm. Justice Ballance, who is vastly experienced in estate disputes, made such an order noting the extensive deterioration of the estate properties, a partition action between the testator and his children in regard to one property, and another court action by the plaintiff children disputing the testator’s last will and certain trust documents.
There was a contested cross -application by the niece of the deceased to be appointed as executrix or administrator pendente lite, or trustee without compensation, that was dismissed.
The court noted that the hostility between the parties, and that the administration of the estate was fraught with obvious difficulties, required the appointment of an experienced neutral third-party which was vastly preferable to the niece, being blood related .
The court in fact allow the application of the testator’s children to have an independent trust company appointed as administrator pendente lite.
Wood v Wilkie and Millican 2012 BCSC 1120 involve an application for production of the will file of the solicitor who prepared the deceased previous will in 2008, that was subsequently replaced by a will, in contention, in 2009 the defendant opposes the application on the basis that the only will in contention is the 2009 will and that therefore the contents of the solicitors 2008 will file should remain privileged.
A master initially dismiss the plaintiffs application and the appeal to the Supreme Court judge was dismissed on the basis that the pleadings related only to the capacity of the testatrix to make a will in 2009, or undue influence in relation thereto, and no claim was made relating to the validity of the 2008 will.
The Court stated as follows:
“The court started from the general proposition that a lawyer’s file is absolutely privileged from production subject only to certain exceptions. The plaintiff argued that one of the exceptions is a claim based on undue influence. The plaintiff relied on Geffin v. Goodman Estate, [1991] S.C.J. No. 53. The plaintiff argued that case directed courts to allow production of the solicitor’s will file on the principle that the evidence obtained was likely to go to the deceased’s true intent. See also Gordon v. Gilroy, [1994] B.C.J. No. 1927.
[11] At para. 18 of Fawcett, Chamberlist J. said:
As such, I am of the view that the exception to solicitor/client privilege is only made out where the issue is “what were the true intentions of the “testator” or, in Geffen, the settler of the inter vivos trust”. In the case at bar, the will itself is not being challenged.
[12] The defendants argue that is precisely the situation in this case. The will that is challenged is the 2009 will and the defendants submit the solicitor’s file relating to that will has already been disclosed and it is the only file relevant to the testator’s intentions.
[13] The plaintiff submits that the overall circumstances of this case, in particular the inter vivos transfer of the Christina Lake property, coupled with the allegations of undue influence, justify a more extensive disclosure order. However, the issues raised by the pleadings in the action relate only to the testator’s capacity to make the 2009 will or that she was coerced or under an improper influence when she did so.”
The Ontario Court of Appeal decision of Dhingral v Dingral Estate 2012 ONCA 261 departs from the long-term legal adage that for reasons of public policy, a criminal may not benefit from his or her own crime.
In 1998, the husband ( appellant) took out a group life insurance policy in amount of $51,000 with his wife named as beneficiary.
Under the policy, the wife was also insured and the husband was the beneficiary.
The husband had been suffering from serious mental disorder for many years and in 2006, he killed his wife.
He was tried on charge of second degree murder and in 2008, and was found not criminally responsible on account of mental disorder.
In May 2007, the respondent son, acting on a Power of Attorney, submitted an Accidental Death Claim application claiming proceeds of insurance policy on behalf of his father.
The Insurer approved payment of the insurance proceeds to the father but did not immediately pay the out.
After the criminal trial, the son, now acting as administrator of mother’s estate, requested that proceeds should be paid to her estate.
In 2009, an order was granted requiring the insurer Life to deposit the insurance proceeds into court .
The husband then brought an application to have proceeds paid to him.
The Application judge dismissed application and the husband and the appeal was allowed.
The order of the application judge was set aside, and an order was made that money deposited with accountant of Superior Court of Justice, along with all interest accrued, was rightfully payable to the husband.
If person was found not criminally responsible on account of mental disorder was not morally responsible for act, there was no rationale for applying rule of public policy .
It was an error for application judge to describe the husband as having committed second degree murder.
Decisions from the Supreme Court of Canada have provided various descriptions of the public policy rule. For example:
Oldfield v. Transamerica Life Insurance Co. of Canada, 2002 SCC 22, [2002] 1 S.C.R. 742 (S.C.C.), at para. 11:
“The public policy rule at issue is that a criminal should not be permitted to profit from crime. Unless modified by statute, public policy operates independently of the rules of contract. For example, courts will not permit a husband who kills his spouse to obtain her life insurance proceeds, regardless of the manner in which the life insurance contract was worded. As Ferguson J. held in the court below, public policy “applies regardless of the policy wording — it is imposed because of the courts’ view of social values” (p. 119).”
[
Brissette v. Westbury Life Insurance Co., [1992] 3 S.C.R. 87 (S.C.C.), at p. 94:
“The rationale of the policy which denies recovery to the felonious beneficiary is that a person should not profit from his or her own criminal act. It is consistent with this policy that a person should not be allowed to insure against his or her own criminal act irrespective of the ultimate payee of the proceeds.
disinherited.com is in complete agreement with this Ontario Court of Appeal decision and feel that it would be accepted as good law throughout the rest of Canada.
The basis of the public policy against benefiting from the proceeds of one’s crime was always based on the notion of criminal responsibility, and when that is lacking due to reasons of insanity, the public policy principle should not apply.
“Where there is a will, I want to be in it” is one of the great PARAPROSDOKIAN in the English language.
A PARAPROSDOKIAN is a figure of speech in which the latter part of a sentence or phrase is surprising or unexpected in a way that causes the reader or listener to reframe or reinterpret the first part.
It is frequently used humorous or dramatic effect, sometimes producing an anticlimax .
Other examples are :
The last thing I want to do is hurt you. But it’s still on my list.
Light travels faster than sound. This is why some people appear bright until you hear them speak.
If I agreed with you, we’d both be wrong.
War does not determine who is right – only who is left.
DISCLAIMER
There may be many reasons an intended beneficiary decides not to accept a gift. Our law permits an intended beneficiary to simply disclaim the gift.
The purported gift is then deemed to be void ab initio (from the beginning). It becomes as if the gift had never been given.
There are rare exceptions to this right of disclaimer, largely limited to situations such as where a trustee has agreed to accept a conveyance of property.
In this article we will review some situations where beneficiaries have disclaimed inheritances and the resulting legal consequences.
Requirements of Legal Disclaimer
The legal requirements for disclaiming a gift are minimal. A disclaimer may be effected by contract, by deed, by writing or even informally through conduct.
The intended recipient of the gift need only renounce the interest, in effect, by saying “I will not be the owner of it“. The key is doing so before dealing with the property in any way.
The decision of Re Moss, (1977) 77 D.L.R. (3d) 314, is a good illustration of disclaimer by an informal act.
This case involved an elderly man chewing tobacco on the lawn of his local Kingdom Hall. As a result of this impropriety, the Jehovah’s Witnesses excommunicated him and a short time later he died –without having changed his will leaving everything to his church.
The church elders considered this gift and soon voted to disclaim the inheritance on the basis that it would be improper for them to accept such a gift from an excommunicated member.
When challenged in court, the court upheld the disclaimer, concluding the actions of the church elders were sufficient to disclaim the gift. Nothing more was required.
In doing so, the court cited Townson vs. Ticknell (1819) 3 B & Ald. 31, as the authority for the proposition that an estate cannot be forced upon a person. Further it is not necessary to go to trouble or expense to demonstrate that a gift is not accepted.
Note however the crucial question of timing. A disclaimer may be made only before the beneficiary has derived any benefit from the assets. Once a benefit has been taken, then the disclaimer can no longer be made. A. R. Mellows, The Law of Succession, p. 508.
All or Nothing
Where there is a single undivided gift, the law requires the donee to either take the gift entirely or disclaim it entirely: the donee cannot take only part of the gift and disclaim the rest.
This principle is illustrated in the following cases:
Guthrie v. Walrond (1883), L.R. 22 Ch.D 573. –Here the intended gift was “‘all my estate and effects in the island of Mauritius’”. The court held that the donee must take all or nothing and could not pick and choose.
Green V. Britten ( 1873) 42 L.J. Ch. 187. This involved a gift of 6 leasehold villas together with an ornamental park. The court held that this was one entire gift and the recipient could not take the villas alone and leave the park.
Retroactive to the Date of Death
Once made, a disclaimer will be retroactive to the date of death of the deceased. A beneficiary who disclaims a gift is refusing to acquire the property of another. Thus the effect of the disclaimer is that the property is never acquired. Re Metcalfe (1972) 3 O.R. 598.
The Manitoba case of Young v Paille 2012 CarswellMan 12 is a good example of how far the courts are prepared to go to allow hearsay evidence to be admitted in most estate litigation cases where it is the best evidence available.
(disinherited.com has previously blogged on the issue of hearsay and those comments can be reached through the search engine.)
The respondent elderly mother suffered a seizure in early 2007 and was soon thereafter diagnosed as showing signs of dementia.
Around this time the mother’s husband began to write letters to his brother about her situation.
On May 15, 2007 he reported that things were “going very badly”.
On the same day the mother signed a power of attorney.
Family members had contacted a lawyer to request that powers of attorney be prepared naming two of the mother’s children as the attorneys.
In 2010 the husband died
A third child of the mother brought an application for a declaration that the mother’s power of attorney was void because she lacked requisite mental capacity.
The Court declared that the mother was incompetent at the time she signed her power of attorney, and thus it was avoid.
Most importantly the husband’s letters were admitted into evidence and were given significant weight by the judge.
The letters provided detail about circumstances that were generally corroborated by medical information, and concern about the mother’s condition at precise times that were in issue at trial.
There was no basis for the assertion that the husband was exaggerating to get sympathy.
There was no significant danger of perception, memory or credibility which would have rendered the letters unreliable.
The Court found that the letters were the best evidence available where his testimony was unavailable, and thus submitted his letters despite them being technically hearsay evidence.
disinherited.com applauds this sensible and practical type of decision that avoid the previous historically hard and fast rules that had related to and largely prevented the admissibility of hearsay evidence
The decision Sutherland, committee of the Estate of Fountain v Dorland and Rendell 2012 BCSC 615, which disinherited.com blogged about yesterday, also contained an additional issue relating to section 20 of the Patient’s Property Act, which says as follows:
20. Every gift made by a person who is or becomes a patient is deemed to be fraudulent and void as against the committee if:
A. The gift is not made for full and valuable consideration actually paid or sufficiently secured to the person, or
B. The donee, grantee, transferee or person to whom the property was alienated or conveyed had notice of the time of the gift, grant, alienation, conveyance or transfer of the mental condition of the person.
In Taylor v. Jenkins (1986), 1 B.C.L.R. (2d) 207, Macdonell J. held that the phrase “shall be deemed to be fraudulent and void” raises a rebuttable presumption of incompetence.
The onus is on the party seeking to uphold the transaction to rebut the presumption (Lasky (Public Trustee of) v. Prowal (1994), 7 E.T.R. (2d) 70 (B.C.S.C.) at para. 39).
In the Lasky case an elderly, frail, and blind man transferred title to his house into joint tenancy with the defendant, his niece and her son, and also gave them each $20,000 a few days prior.
No consideration was paid for the house.
When a friend learned of the transfer and questioned him about it, he denied having done such a thing.
The Public Guardian as committee of the plaintiffs estate, brought an action to set aside the transfer of the home and the payment of the cheques.
The action was allowed.
The court held that the defence bore the onus of rebutting the presumption in section 20 Patient’s Property Act, that the gift is deemed to be fraudulent and void.
The court found that the facts of the case supported the inference of undue influence having been exerted by the defendants in obtaining the two cheques and the transfer of the house.
No legal independent advice had been provided to the plaintiff with regard to those transactions.
The conduct of the defendants in obtaining the benefits for themselves by exercising undue influence over the plaintiff when he was in an immensely comprised state was reprehensible, and the plaintiff was therefore entitled to special costs.
Special costs normally means full indemnity to the plaintiff of all the plaintiff’s legal fees and disbursements.
The court followed the decision of the BC Court of Appeal in Everywoman’s Health Center Society 1988 v Bridges (1991) 54 BCLR (2d) 294 (CA)
The Ontario case of Richi v Kakaoutis 2011 Carswell 14616 is an example of what procedure was followed in Ontario when a litigant became mentally ill, requiring a litigation guardian to be appointed to represent his interests because he was incapable.
I suspect it would apply as good law in British Columbia.
The defendant had exhibited signs of paranoid during a trial in 2008 involving alleged negligence of another driver.
The public Guardian and Trustee for Ontario obtained an order declaring the plaintiff disabled and appointed itself to continue the court action on the plaintiff’s behalf.
The defendant sought to represent himself and other relatives in another court action relating to a real estate transaction.
The plaintiffs in the real estate action brought an application for an order declaring the defendant disabled and to appoint the Public Guardian and Trustee as litigation Guardians for all defendants, or for an order requiring the defendant to undergo medical testing.
The court ordered that the defendant attend a medical examination chosen by the court from a list of three, failing which the plaintiff could move to strike the statement of defence.
The defendants mental condition was very much in question, and the finding any prior decision was relevant and informative to the court on whether a mental assessment should be ordered.
The issue of the defendants mental state was raised by the adverse party in the litigation, and was relevant to the issue of whether the litigation Guardian should be appointed for all defendants.
The court found that there was good reason to believe there was substance to the alleged disability, including the admission by the defendant that he was subject to extreme mood swings.
The results of the mental assent examination were necessary to assist counsel and the court on the issue of whether a litigation Guardian should be appointed for all defendants.
McBeth-Kearns v Marples 2012 BCSC 714 is an estate litigation case that like so many, can often end up sitting on the lawyer’s desk or filing cabinet for years.
Charles Dickens wrote about the inordinate delay in estate litigation back in his day in his lengthy novel Bleak House involving a 50 year estate lawsuit.
I recall that the first time I made an application on behalf of the defendant to have the plaintiffs claim dismissed for want of prosecution, that file that had been left undisturbed for four years, yet as a result of my application to dismiss, suddenly flourished into a 9 day trial, all of which my client ultimately blamed me
Sometimes there is merit in the adage “let sleeping dogs lie”.
In the McBeth-Kearns case the plaintiff had commenced a court action in 2005 claiming an interest in certain land.
Seven years later she consented to the removal of a certificate of pending litigation that she had filed, in order to permit the sale of the land, with the proceeds to be held in an interest-bearing lawyers account.
The defendant brought on an application in April of 2012 to have the plaintiffs claim dismissed for want of prosecution, given that she had taken no steps in the court action for more than three years.
The court found that the delay had been inordinate and inexcusable, but did not dismiss the claim on the basis that justice would not require such a dismissal without a trial on the merits.
In support of that decision Justice Joyce found that there would be no substantial prejudice to the defendants in having a trial, and finding that the plaintiff did have an arguable claim, that at best could succeed for no more than half of the funds.
Accordingly the judge ordered half of the funds held in trust to be released to the defendant, and ordered that the plaintiff set the matter down for trial.
Justice Joyce, as he usually does, gave an extensive review of the law, in this case relating to an application to dismiss the plaintiffs claim for want of prosecution.
That excerpt of law is as follows:
DISMISSAL FOR WANT OF PROSECUTION The Legal Test
[29] The starting point for a discussion of the law that applies on an application to dismiss an action for want of prosecution is Irving v. Irving (1982), 38 B.C.L.R. 318 (C.A.) [Irving], where Seaton J.A. referred to the judgments of the English Court of Appeal in Allen v. Sir Alfred McAlpine & Sons Ltd. [1968] 2 Q.B. 229 (C.A.). At para. 8, he referred to the following statement of Salmon L.J.:
In order for such an application to succeed, the defendant must show:
that there has been inordinate delay. It would be highly undesirable and indeed impossible to attempt to lay down a tariff – so many years or more on one side of the line and a lesser period on the other. What is or is not inordinate delay must depend upon the facts of each particular case. These vary infinitely from case to case, but inordinate delay should not be too difficult to recognize when it occurs.
that this inordinate delay is inexcusable. As a rule, until a credible excuse is made out, the natural inference would be that it is inexcusable.
that the defendants are likely to be seriously prejudiced by the delay. This may be prejudice at the trial of the issue between themselves and the plaintiff, or between each other, or between themselves and the third parties. In addition to any inference that may properly be drawn from the delay itself, prejudice can sometimes be directly proved. As a rule, the longer the delay, the greater the likelihood of serious prejudice at the trial.
If the defendant establishes the three factors to which I have referred, the court, in exercising its discretion, must take into consideration the position of the plaintiff himself and strike a balance. If he is personally to blame for the delay, no difficulty arises. There can be no injustice in his bearing the consequences of his own fault.
In the end, the court must decide whether or not on balance justice demands that the action should be dismissed.
[30] Further at para. 8, Seaton J.A. also referred to the following statement of Diplock L.J.:
It is thus inherent in an adversary system which relies exclusively upon the parties to an action to take whatever procedural steps appear to them to be expedient to advance their own case, that the defendant, instead of spurring the plaintiff to proceed to trial, can with propriety wait until he can successfully apply to the court to dismiss the plaintiffs action for want of prosecution on the ground that so long a time has elapsed since the events alleged to constitute the cause of action that there is a substantial risk that a fair trial of the issues will not be possible.
It is then a Draconian order and will not be lightly made. It should not in any event be exercised without giving the plaintiff an opportunity to remedy his default, unless the court is satisfied either that the default has been intentional and contumelious, or that the inexcusable delay for which the plaintiff or his lawyers have been responsible has been such as to give rise to a substantial risk that a fair trial of the issues in the litigation will not be possible at the earliest date at which, as a result of the delay, the action would come to trial if it were allowed to continue.
[31] In Busse v. Chertkow, 1999 BCCA 313 [Busse], Goldie J.A. considered the question of who bears the onus with regard to the issue of prejudice if the defendant demonstrates inordinate, inexcusable delay. At para. 18, he said:
18 In my view, it is open to this Court to adopt the principle that once a defendant has established the delay complained of has been inordinate and is inexcusable a rebuttable presumption of prejudice arises. To continue imposing the evidentiary burden of proving prejudice after establishing inordinate and inexcusable delay is contrary to the object expressed in sub-rule (5) of Rule 1 of the Rules of Court.
[32] In Tundra Helicopters Ltd. v. Allison Gas Turbine, 2002 BCCA 145 [Tundra Helicopters], Esson J.A., at paras. 35-36, made this comment with regard to the “rebuttable presumption of prejudice” referred to in Busse:
35 I also regard it as error in principle to dispose of the issue of prejudice by asking
whether the plaintiffs had rebutted* the presumption of prejudice that arises in the
circumstances’ and by going on to answer that question in the negative. The
“presumption of prejudice” is not a presumption of law. It can be termed a presumption
of fact but only in the sense, as it is put in Sopinka and Lederman “The Law of Evidence in Civil Cases”, 1974 at p. 378:
The term “presumption of fact” is used in many instances in which it is desired merely to shift the secondary burden to a particular party. When used in this sense, it means that the facts are such that a certain inference should, but need not, be logically drawn.
36 It is in that sense that the word “presumption” is employed in Busse v. Robinson Morelli Chertkow, supra. In considering whether the presumption of prejudice has any
application in a particular case, the question properly to be asked, as stated by Goldie
J.A. in para. 27 of Busse, is:
… has the plaintiff established on a balance of probabilities that the defendant has not suffered prejudice or that other circumstances would make it unjust to terminate the action?
In considering that question it may be misleading to approach it by asking whether the plaintiff offered evidence on the point. In most cases, it will only be the defendant who is in a position to offer evidence as to the existence of specific prejudice – as two of the defendants attempted to do in this case. The plaintiff often will be able only to point to the overall circumstances, including the absence of any evidence from the defendant of specific prejudice, as establishing on the balance of probabilities that serious prejudice has not been suffered.
Construction Ltd., 2009 BCCA 535 at paras. 27-28, after reviewing Tundra Helicopters, Irving and Busse, Low J.A. summarized the test as follows:
27 These cases suggest to me that a chambers judge charged with the hearing of
an application for dismissal of an action for want of prosecution is bound to consider the
following:
the length of the delay and whether it was inordinate;
any reasons for the delay either offered in evidence or inferred from the evidence, including whether the delay was intentional and tactical or whether it was the product of dilatoriness, negligence, impecuniosity, illness or some other relevant cause, the ultimate consideration being whether the delay is excusable in the circumstances;
whether the delay has caused serious prejudice to the defendant in presenting a defence and, if there is such prejudice, whether it creates a substantial risk that a fair trial is not possible at the earliest date by which the action could be readied for trial after its reactivation by the plaintiff; and
whether, on balance, justice requires dismissal of the action.
28 I consider the fourth question to encompass the other three and to be the most
important and decisive question.
Re Burgess, 2004 BCSC 62,in estate circles known as the “Hell’s Angels case”, is good illustration of the practical considerations often applied by the court in presumption of death applications.
On or about January 7, 2002, Burgess, an actor and stuntman in the movie industry, disappeared . He had membership in the local Chapter of Hell’s Angels Motorcycle Club. On the date of his disappearance, he was planning to attend the regular meeting of the Hell’s Angels local scheduled for the following day.
Four days later, an RCMP constable phoned Burgess’ wife. He told her that, based on confidential information he had received, in his opinion her husband had been killed by the Hell’s Angels. That same day, a member of the Hell’s Angels club arrived at the Burgess home and requested that his wife turn over his “colours”. Evidence was presented that it was the custom of the club to retrieve club colours when a member died, accidentally or otherwise.
The surviving wife and mother of Burgess’ two children successfully applied under the Survivorship and Presumption of Death Act for a declaration that Burgess was presumed to be dead.
The court found that on the balance of probabilities Burgess had died by misadventure.
Ms. Carmichael has outlined the law for me which is nicely summarized in the contrasting decisions of the Saskatchewan Court of Appeal in Re: Noga et al and Prudential Insurance Co. of America et al (1971), 20 D.L.R. (3d) 331 and the British Columbia Court of Appeal in Re: Martin, Martin v. Prudential Insurance Company of America et al, [1954] 1 D.L..R. 762.
In the Saskatchewan case, Mr. Noga was a widower who owned his own home and had no financial or other problems and enjoyed an amicable relationship with his daughters. The Court found a complete absence of evidence that he had any compelling motive to disappear, and the presumption to be drawn was that Mr. Noga was dead.
Re Burgess stated :
[31] In contrast, Mr. Martin had domestic as well as financial difficulties and had been drinking heavily for some 18 months. He disappeared on a night ferry crossing to Victoria. He had been seen intoxicated during the voyage. He was last seen at 3:30 a.m. and described as “very despondent”. His disappearance was reported when the ferry docked at 7:30 a.m. Prior to that time he had given his suit coat to a companion, placed his return tickets in his companion’s purse and removed his identification from his suit coat.
[32] Culliton, C.J.S. in Noga at p.334 said:
[If at the end of the day] “the scales are left in equilibrium”, as between the presumption of continuing life and the presumption of death, the applicants have not discharged the onus resting upon them. If the conflicting inferences are of equal degrees of probability, then a choice between them is one of conjecture; there must be evidence when on balance and comparing the probabilities from which it can be said that one probability is more reasonable than the other.
[33] In Noga the Court found the presumption to be drawn was that Mr. Noga was dead. In contrast in Martin the Court found the scales were left in equilibrium.
[34] The Supreme Court of Canada has widened the scope for the acceptance of hearsay evidence in the “hearsay trilogy of R. v. Khan, [1990] 2 S.C.R. 531, R. v. Smith, [1992] 2 S.C.R. 915 and R. v. B. (K.G.), [1993] 1 S.C.R. 740. The circumstances are such that I consider the police information to be reasonably trustworthy, the police officers would be disinterested, and the statements would not be made with thought of litigation in mind. The sources are possessed of a peculiar or special means of knowledge. And there is some consistency in the reported statements of both the police and the members of the motorcycle gang. The underpinnings of the admission of the comments of the police and the Hells Angels Club member are an necessity, which is plainly the case here, and reliability, which I find may reasonably be inferred.
[35] The evidence satisfies me that no person has seen Rick Burgess since January 7, 2002. The last recorded activity appears to have been at midday, that day, on his telephone. While the evidence of events after Mr. Burgess’ disappearance are by their nature hearsay, they are in the circumstances the best evidence available and can only lead to the conclusion, that the “dark side” of Mr. Burgess’ life caught up with him and the only reasonable inference is that his life has been ended by “person unknown”..
[36] I am satisfied on the balance of probabilities that Mr. Burgess died by misadventure.
he patient’s family applied to the court for an injunction to raise the level of care from the lowest, level one, that the committee wife had lowered it down to, up to level four or at least two where it had previously been.
