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.

S. 151 WESA: Beneficiary Can Sue on Behalf of Estate

S. 151 WESA: Beneficiary Can Sue on Behalf of Estate

Werner v McLean Estate is one of the first decisions under WESA to allow an intestate successor beneficiary to commence a court action in the name and on behalf of the personal representative of the estate if certain preconditions (i.e., reasonable efforts, notice, and good faith) are met. This is a new provision to WESA.

The Court utilzed S. 151 to allow the intestate successor to commence action when the acrimony was such between the parties that it met the criteria to allow the court to conclude that it was necessary or expedient for the protection of the estate or the interests of a beneficiary or an intestate successor for the proceedings to be brought or defended.

This section as a practical matter will likely be used when a personal representative refuses to carry out his or her duty to as viewed by the beneficiaries or intestate successors.

The application alternatively sought to remove and replace the trustee.

The court in addition to granting the relief un S. 151 WESA also ordered that the estate assets not be disposed or  transferred pending resolution of the case.

The Law

[13] Section 151 of the Wills, Estates and Succession Act provides, in relevant part, as follows:

(1) Despite section 136 [effect of representation grant], a beneficiary or an intestate successor may, with leave of the court, commence proceedings in the name and on behalf of the personal representative of the deceased person

(a) to recover property or to enforce a right, duty or obligation owed to the deceased person that could be recovered or enforced by the personal representative, or

(b) to obtain damages for breach of a right, duty or obligation owed to the deceased person.

(3) The court may grant leave under this section if

(a) the court determines the beneficiary or intestate successor seeking leave

(i) representative to commence or defend the proceeding, has made reasonable efforts to cause the personal

(ii) has given notice of the application for leave to

(A) the personal representative,

(B) any other beneficiaries or intestate successors, and

(C) any additional person the court directs that notice is to be given, and

(iii) is acting in good faith, and

(a) it appears to the court that it is necessary or expedient for the protection of the estate or the interests of a beneficiary or an intestate successor for the proceeding to be brought or defended.

(3) On application by a beneficiary, an intestate successor or a personal representative, the court may authorize a person to control the conduct of a proceeding under this section or may give other directions for the conduct of the proceeding.

Accordingly, the court is empowered to grant leave to  an intestate successor to commence proceedings in the name and on behalf of the personal representative if certain preconditions (i.e., reasonable efforts, notice, and good faith) are met.

The Usual Rules For Costs In Trusts


The Usual  Rules For Costs In Trusts

In matters of trust administration, the “usual rule” is for the court to award special costs to all parties, payable out of the estate or trust: Collett Estate, Re, 2005 BCCA 291 (B.C. C.A.), at paras. 5-6, Miles v. Vince, 2014 BCCA 418 (B.C. C.A.), at paras. 6-7.


Collett stated:

Thus, the Public Trustee is correct that it is “not uncommon” for the court to award special costs to all parties payable out of the estate.  That usual rule, which applies in most cases, will not apply only where there is good reason for a different order.

[7]                The general principles that guide the exercise of the discretion to award costs in proceedings in the Supreme Court involving executors and trustees are set out in Turner v. Andrews (1999), 23 C.C.P.B. 84, 30 E.T.R. (2d) 126 (B.C.S.C.), aff’d 85 B.C.L.R. (3d) 53, 2001 BCCA 76 That case concerned an application by a plaintiff for an order that his reasonable legal costs be paid prospectively out of the trust fund in issue in his representative action against the trustees of his pension fund.  In dismissing the application, Allan J. summarized the relevant principles as follows:

[8]     Section 86 of the Trustee Act, R.S.B.C. 1996, c. 464, reflects the historic statutory authority which permits a trustee to seek the opinion, advice or direction of the Court on a question respecting the management or administration of trust property. In such circumstances, the Court may order the costs of the parties to be paid out of the estate. That principle was expanded in Re Buckton, [1907] Ch. 406 (Eng. Ch. Div.) which held that, in litigation against a trustee, the legal fees of a plaintiff beneficiary may be paid out of the trust fund on an indemnity basis where the issue concerns the interpretation of the trustee’s powers. Buckton considered the beneficiary’s entitlement to costs in three classes of cases:

(1) An application made by trustees of a will or settlement, asking the Court to construe the trust instrument for their guidance; to ascertain the interests of the beneficiaries; or to answer a question which arises in the administration of the trusts. In such instances, the costs of all parties, which are necessarily incurred for the benefit of the estate, should be taxed as between solicitor and client and paid out of the estate.

(2) An application made by the beneficiaries as a result of difficulty of construction or administration of the trust which would have justified an application by the trustees. Again the application is necessary for the administration of the trust and the costs of all parties, which are necessarily incurred for the benefit of the estate, are paid out of the estate.

(3) An application made by the beneficiaries who make claims adverse to other beneficiaries. Such litigation is adversarial in nature and, subject to the Court’s discretion, the unsuccessful party bears the costs of those whom he or she brings to Court.


However, the “usual rule” applies only where “an executor or trustee is required to seek the court’s guidance in interpretation of a will or there are difficulties with construction or administration of a trust,” and is not available in relation to an application “made by the beneficiaries who make claims adverse to other beneficiaries”: Eckford v. Van Der Woude Estate, 2013 BCSC 1729 (B.C. S.C.), at para. 60.

Application of this criteria means that the “usual rule” applies to some but not all of the proceedings at issue in this case.

The Court stated at p. 415:

It is often difficult to discriminate between cases of the second and third classes, but when once convinced that I am determining rights between adverse litigants I apply the rule which ought, I think, to be rigidly enforced in adverse litigation, and order the unsuccessful party to pay the costs.

Removing Certificates of Pending Litigation (CPL’s)

Jacobs v Yehia 2015 BCSC 267 contains an excellent summary on the law removing certificates of pending litigation.
Such a document is typically filed by a plaintiff who claims an interest in the lands in question, and the certificate is notice to the world under our Torrens land title system that litigation is ongoing concerning the ownership of the property, and in effect ties up the property.
21      Section 215(1) of the Land Title Act, R.S.B.C. 1996, c. 250 (the “Act“) permits a party to a proceeding who is claiming “an estate or interest in land” to register a CPL against the land. The CPL will be cancelled, however, if the party fails to demonstrate an arguable or prima facie case for an interest in land: 0861695 B.C. Ltd. v. Meola, 2013 BCSC 121, paras. 7-8.
22      Where there is no arguable case to be tried respecting a claim to an interest in land, the landowner should be free to deal with his or her land unburdened by a CPL even though a trial has yet to be conducted. This is so because the nuisance value of CPLs should not be permitted to override the legitimate exercise of the rights of landowners. In addition, a certificate of pending litigation should not be used as a tool to gain an advantage in litigation: Buchan v. Rome, 2011 BCSC 1206, paras. 78-79; Seville Properties Inc. v. Coutre, 2006 BCSC 1105.
23      Pursuant to s. 254 of the Act, a CPL will also be cancelled if the action in respect of which it is registered has been dismissed and no appeal from the dismissal has been filed. In the usual course, where an action claiming an interest in land is dismissed at trial an order cancelling the CPLs forms part of the trial order: DJ Estates Ltd. v. Rota, 2008 BCSC 223; Gadsby v. Barlow, 2008 BCSC 1313.
24      “An estate or interest in land” may include both legal and equitable interests. The test is not to be narrowly defined, but the mere fact that a claim relates to land does not convert it into a claim for a proprietary interest: Montgomery v. Klaassen, [1996] B.C.J. No. 1739, para. 22; Seville Properties Ltd. v. Coutre et al., 2005 BCSC 1105.
25      Where funds are obtained through wrongful means and can be traced to the acquisition or improvement of land, the court may impose a remedial constructive trust sufficient to sustain a CPL. In addition, the claim for tracing may, in and of itself, justify an equitable charge on land for purposes of supporting a CPL: Meola, para. 9; Drucker, Inc. v. Hong, 2011 BCSC 905, paras. 19, 22 and 36; Samji (Trustee) v. Chatur, 2013 BCSC 1915, paras. 60-64; Lament v. Constantini, [1985] B.C.J. No. 2988.
26      Constructive trusts are equitable remedies available for acts such as fraud and unjust enrichment. In Ibbotson v. Fung, 2013 BCCA 171, Garson J.A. commented that the distinction between a value survived monetary remedy and a constructive trust largely dissipates in some unjust enrichment claims, except to the extent that a constructive trust encompasses additional property rights over an asset until it is sold. Remedies for unjust enrichment retain a large measure of remedial flexibility to deal with differing circumstances according to principles rooted in fairness and good conscience. However, a plaintiff must establish that a monetary award would be an insufficient remedy before a constructive trust will be imposed. One of the factors for consideration is whether a monetary award will be paid: Drucker, para. 30; Ibbotson, para. 28; Kerr v. Baranow, 2011 SCC 10, paras. 53 and 72; Wilson v. Fotsch, 2010 BCCA 226, at para. 47.
27      Where an interest in land is claimed based on a constructive trust, the question on an application to cancel a CPL is not whether the plaintiff will be successful in proving entitlement to a constructive trust. It is enough to establish that a constructive trust is a possible remedy to sustain the CPL: Samji, para. 61.
28      In Tracy v. Instaloans Financial Solutions Centres (B.C.) Ltd., 2010 BCCA 357, the Court of Appeal considered the propriety of a constructive trust granted as a restitutionary remedy in a class action brought against the operators of a “payday loan” business. In doing so, the court reviewed the development of the remedy and some of the challenges associated with its application in the context of a commercial case. One such challenge relates to the timing of a plaintiff’s election as between a monetary remedy or restitution in the form of a proprietary remedy, given the rule that a party cannot obtain both remedies.
29      The court in Tracy noted that a plaintiff need not elect between a potential monetary or proprietary remedy until the time of final judgment. After referring to the English practice of split trials in which liability is determined before a plaintiff is required to elect between the alternative remedies of damages or an accounting of profits, Newbury J.A. stated, at para. 49:
In my opinion, the same reasoning should apply in cases where damages and constructive trusts are sought as alternative remedies. I see no error in the trial judge’s conclusion that the plaintiffs need not elect between the two until they are able to make an informed choice… As long as the plaintiffs make their election before final judgment is issued – and the order appealed from is obviously not a final order – it seems to me the defendants can have no objection. I need not decide whether, if the plaintiffs do not succeed in obtaining complete restitution by means of tracing, they may then revert to seeking damages. I do note Professor Smith’s suggestion in The Law of Tracing, supra, that only full recovery by one route (in personam or in rem relief) will eliminate the other…
30      Funds may be traced before or after legal or equitable rights have been established. As Masuhara J. explained in Drucker, tracing is a process, not a claim or a remedy. He went on to describe the nature of the tracing process in the context of an application to cancel a certificate of pending litigation in an action involving funds that were allegedly misappropriated. At paras. 37-39, he stated:
Hence, if the plaintiff successfully establishes a proprietary entitlement to the misappropriated funds in the hands of the defendant, it may trace or follow those funds from there into other property. The question is then whether or not the Property held by the defendant is sufficiently connected to those misappropriated funds to satisfy the requirements for a constructive trust. If it is, the plaintiff will then be entitled to assert a constructive trust against that property without the exercise of any further discretion by the court (Tracy at para. 33).

Security For Costs

Security for costs

An application for security for court costs may occur in case one party here in BC  has a strong case  and may win, while  the other party typically is out of the jurisdiction, or lacks assets to pay costs if he/she/it loses the case.


Sunshine Holdings V Vancouver Pacific Devopments Corp. 2015 BCSC 261 summarized the law on security for costs :

The legal principles concerning an application for security for costs are conveniently summarized by Madam Justice Gerow in Culp Investments LLC v. KPMG Inc. (sub nom IC Creative Homes Inc. (Trustee of) v. KPMG Inc.), 2007 BCSC 451at paras. 3-7:

[3] The court has authority to make an order for security for costs against a foreign corporation either under s. 236 of the Business Corporation[s] Act, S.B.C. 2002, c. 75, or under its inherent jurisdiction: International Container Terminal Services Inc. v. British Columbia Railway Co., 2003 BCSC 863; Shiell v. Coach House Hotel Ltd. (1982), 37 B.C.L.R. 254 (C.A.).
[4] Section 236 of the Business Corporations Act provides:
If a corporation is the plaintiff in a legal proceeding brought before the court, and if it appears that the corporation will be unable to pay the costs of the defendant if the defendant is successful in the defence, the court may require security to be given by the corporation for those costs, and may stay all legal proceedings until the security is given.
[5] The making of an order for security for costs either under the court’s inherent jurisdiction or s. 236 is discretionary: Shiell, supra; Kropp (c.o.b. Canadian Resort Development Corp.) v. Swaneset Bay Golf Course Ltd., 4 W.W.R. 306 (B.C.C.A.).
[6] The principles considered by the courts in determining whether an award for security for costs are summarized in Kropp, supra, at [para.] 17:
1 The court has a complete discretion whether to order security, and will act in light of all the relevant circumstances;
2 The possibility or probability that the plaintiff company will be deterred from pursuing its claim is not without more sufficient reason for not ordering security;
3 The court must attempt to balance injustices arising from use of security as an instrument of oppression to stifle a legitimate claim on the one hand, and use of impecuniosity as a means of putting unfair pressure on a defendant on the other;
4 The court may have regard to the merits of the action, but should avoid going into detail on the merits unless success or failure appears obvious;
5 The court can order any amount of security up to the full amount claimed, as long as the amount is more than nominal;
6 Before the court refuses to order security on the ground that it would unfairly stifle a valid claim, the court must be satisfied that, in all the circumstances, it is probable that the claim would be stifled; and
7 The lateness of the application for security is a circumstance which can properly be taken into account.
[7] The courts have always drawn a distinction between corporate and individual plaintiffs for the purposes of determining whether an order for security for costs should be made. The courts do not treat corporate defendants with the same flexibility and generosity as individual plaintiffs: Fat Mel’s Restaurant Ltd. v. Canadian Northern Shield Insurance Co. (1993), 76 B.C.L.R. (2d) 231 at [para.] 27 (C.A.).
22      A profitable business with a positive cash position whose funds are available to the plaintiff is sufficient to establish that it will have the funds to satisfy an order of costs: WestCorp Solutions Ltd. v. Collins, 2014 BCSC 1606.
B: The Parties’ Positions
23      Darwin’s position includes:
• while the granting of such an order is discretionary once the applicant who seeks security has shown that the plaintiff will not be able to pay costs should the claim fail, security is generally ordered unless the court is satisfied that there is no arguable defence: Fat Mel’s Restaurant Ltd. v. Canadian Northern Shield Insurance Co. (1993), 76 B.C.L.R. (2d) 231 at 235 (C.A.);
• the plaintiffs concede that Darwin has an arguable defence;
• if there is no duty on a trustee to commence an action, but only the power to litigate, the normal rules of costs apply, including an order for security for costs if appropriate: Culp Investments at para. 17;
• the plaintiffs lack sufficient assets to pay a costs award since neither Sunstone Marine nor SRAI own any real property in British Columbia. In fact, the Trust is not a legal entity that can own property. Rather, it is a relationship in which the trustee holds property for the benefit of the beneficiaries;
• if an award of costs was made against SRAI, it has the discretion not to seek indemnification from the Trust. Darwin is thus at risk in having an unsatisfied costs judgment;
• SRAI is a defendant by counterclaim in unrelated proceedings where a judgment for rent due and owing in the amount of $146,764.37 is sought, along with damages for other heads of damage;
• in so far as the quantum of security is concerned, projections of anticipated costs and disbursements are often uncertain and the court is in no better position to make projections than the parties as to the potential costs and quantum of security to be awarded: Culp Investments at para. 26; and
• in this case, estimating a trial length of 30 days, Darwin estimates its total taxable costs to be $116,974.20. As a result, it seeks security for costs in the amount of $115,000 as a reasonable estimate of its anticipated costs and disbursements.
24      Sunstone Marine and SRAI concede that the defendants have an arguable case. Sunstone Marine also concedes that it has no assets with which to pay a costs award were one to be made against it.
25      SRAI’s position includes:
• the Trust has assets of approximately $22 million;
• SRAI has the ability, pursuant to the trust declaration, to seek indemnification for any costs award which could be made against it. The trust declaration specifically governs such a situation;
• while a trust can only commence and maintain proceedings in the name of the trustee, the estate or trust assets are a relevant consideration which can be taken into account by the court in the exercise of its discretion; and
• if the court is disposed to ordering security, an amount of approximately $50,000 is more appropriate in the circumstances of this case taking into account the value of the Trust’s assets and the cash that SRAI regularly has at its disposal.
C: Discussion
26      The threshold issue on an application for security for costs is whether the applicant/defendant(s) have established that the plaintiff corporation(s) will be unable to pay the defendants’ costs if it is successful in its defence.
27      I have concluded that Darwin has failed to meet this initial threshold and that its claim for security for costs against SRAI should be dismissed.
28      In the particular circumstances of this case, notwithstanding the fact it has no assets, I have also concluded that the application with respect to Sunstone Marine should be dismissed.
29      It is evident from Ms. Adams’ affidavit that SRAI, in its capacity as trustee, will have the funds to pay any award of costs that could be made against it. The Trust has more than sufficient assets to pay the costs sought by Darwin. These assets are available to SRAI for that purpose in that the Declaration of Trust explicitly provides that SRAI is to be indemnified from the Trust for all costs, including legal expenses and judgments against it.
30      I agree with SRAI’s argument as set out in its response that the authorities relating to an order regarding security for costs governing trustees in bankruptcy are of assistance on this application.
31      In particular, security may be ordered against trustees in bankruptcy where that trustee has no duty to sue and where the trust has no assets. That is not the case in this proceeding.
32      In a bankruptcy proceeding, the bankrupt estate’s assets are properly considered in determining whether the trustee will be able to satisfy a cost order: Vancouver Trade Mart Inc. (Trustee of) v. Creative Prosperity Capital Corp., [1999] 7 C.B.R. (4th) 3 (B.C.S.C.); Mancini Estate (Trustee of) v. Falconi (sub nom Clarkson, Gordon Inc. v. Falconi), [1990] 70 O.R. (2d) 171 (H.C.).
33      A trust’s assets can also be considered on an application for security for costs against a trustee who sues for the benefit of the trust. That is because, at law, a trustee is entitled to indemnification from the trust funds which it holds for all costs, including legal costs, which the trustee reasonably incurs for the trust’s benefit. See Geffen v. Goodman Estate, [1991] 2 S.C.R. 353 at 390; Royal Trust Corp. of Canada v. Clarke (1989), 35 B.C.L.R. (2d) 82 at 86 (C.A.); Blueberry Interim Trust (Re), 2012 BCSC 254 at para. 26.
34      In any event, as I have noted, the Declaration of Trust in this case contains a specific provision to this effect.
35      In addition, were Darwin to become SRAI’s creditor to an award of costs in its favour then it would be subrogated to SRAI’s right to charge and lien Trust assets. See DeLorenzo v. Beresh, 2010 ONSC 5655; McLennan v. McLennan (2000), [2000] O.J. No. 3286, 36 E.T.R. (2d) 145 (S.C.J.); G. Solway & Sons Ltd. v. Pearlman and Ezrin, [1964] 1 O.R. 1 (H.C.J.); Re Johnson (1880), 15 Ch. D. 548.
36      While it is the case that Sunstone Marine has no assets, that does not necessarily result in an order for security being made against it.
37      As I have noted, while security for costs will “generally” be ordered against a plaintiff that has no exigible assets, the court retains the discretion not to make such an order in appropriate circumstances.
38      Taking into account the principles to which I have referred, I am of the view that an order for security for costs as against Sunstone Marine is not required in this case.
39      That is because the claims of both plaintiffs against Darwin are based on identical allegations. The plaintiffs also seek the same relief against Darwin.
40      Darwin, for its part, has not yet filed a response to the Amended NOCC. In its response filed July 22, 2011, it denies owing a duty of care to SRAI. It also raises as a defence that Sunstone Marine waived and released Darwin from any claims arising from the project.
41      However, Darwin has not established on this application that there is any real likelihood that Sunstone Marine’s claims against it could be dismissed, but not those of SRAI. In light of the relationship between Sunstone Marine and SRAI, even if that were to be the result following a trial, the court would have a broad discretion to take this into account in making an appropriate award of costs based on which of the parties were successful or not.
42      Quite apart from my conclusion that Darwin has failed to establish that SRAI does not have the ability to pay an award of costs made against it, I am of the view, based on Ms. Adams’ affidavit, that SRAI, in fact, does have the financial means to do so.
43      That being the case, Darwin should have the ability to collect the entirety of its costs from SRAI in the event the action brought against it is dismissed. That would include those costs arising from a successful defence to Sunstone Marine’s claims.

Estoppel By Convention


Estoppel By Convention.

The Supreme Court of Canada has set out the criteria as to what establishes estoppel by convention in Ryan v. Moore, 2005 SCC 38, [2005] 2 S.C.R. 53. In paragraphs 53 and 54, the Court sets out how the forms of estoppel have been established in law.


An estoppel by convention,  is an estoppel by representation of fact, a promissory estoppel or a proprietary estoppel, in which the relevant proposition is established, not by representation or promise by one party to another, but by mutual, express or implicit, assent. This form of estoppel is founded, not on a representation made by a representor and believed by a representee, but on an agreed statement of facts, or law, the truth of which has been assumed, by convention of the parties, as a basis of their relationship. When the parties have so acted in their relationship upon the agreed assumption that the given state of facts or law is to be accepted between them as true, that it would be unfair on one for the other to resile from the agreed assumption, then he will be entitled to relief against the other according to whether the estoppel is as to a matter of fact, or promissory, and/or proprietary.


57      The Court, then, in para. 59, said that the following criteria form the basis of the doctrine of estoppel by convention:


(1) The parties’ dealings must have been based on a shared assumption of fact or law: estoppel requires manifest representation by statement or conduct creating a mutual assumption. Nevertheless, estoppel can arise out of silence (impliedly).

(2) A party must have conducted itself, i.e. acted, in reliance on such shared assumption, its actions resulting in a change of its legal position.

(3) It must also be unjust or unfair to allow one of the parties to resile or depart from the common assumption. The party seeking to establish estoppel therefore has to prove that detriment will be suffered if the other party is allowed to resile from the assumption since there has been a change from the presumed position.


58      With respect to estoppel by representation, the Supreme Court of Canada’s decision in Canadian Superior Oil Ltd. v. Hambly, [1970] S.C.R. 932, [1970] S.C.J. No. 48, which set out in para. 19, the factors giving rise to estoppel.

They are:

(1) A representation or conduct amounting to a representation intended to induce a course of conduct on the part the person to whom the presentation is made;

(2) An act or omission resulting from the representation, whether actual or by conduct, by the person to whom the representation is made;

(3) Detriment to such person as a consequence of the act of omission.


59      It is to be noted, however, that estoppel by representation cannot arise from silence unless a legal duty is owed by the representor to the representee to make the disclosure. See: Ryan v. Moore, 2005 SCC 38at para. 76.


62      Blake therefore accepted the terms of the Wills and acted upon those terms, not just once but 4 times, when he sold the house, sold the California condo, took the art he wanted, and divided various household goods and personal effects, and signed the corporate documents. Thus, all the parties involved took steps based on the shared assumption that the Wills were valid. Their mutual conduct shows this. Blake was silent about litigating anything in connection with the Wills until September 2013, although his lawyer had contacted the Estate Trustees in early February 2012. The Estate Trustees acted in reliance of this shared assumption, paid the taxes, and did not apply for an Income Tax Clearance Certificate, as there were still unadministered corporate assets to be divided between Blake and Cody under the Wills.


63      Blake should not be allowed now to resile from all of the actions he took during the two-year period after Eleanor’s death. As Mr. Justice Brown said, in Lawless, supra, a prospective litigant cannot wait until he or she determines that a claim is winnable or viable.


64      Blake’s conduct, in my view, induced the Estate Trustees to continue the administration of the Estate, since they had no legal document to show that Blake was in any way objecting. They organized the payment to CRA to stop any penalties and interest from running on the amount owing. They placed themselves in a precarious position, not knowing that Blake would later want Orders removing them as Estate Trustees, accusing them of improper conduct and accusing Ms. Rintoul of negligence. They took a course of making distributions to Blake out of the Estate before receiving an Income Tax Clearance Certificate, for which they possibly could be personally liable.

65      In Hayes v. Montreal Trust Co., 1977 CarswellBC 69 (B.C.S.C.), the Court said in para.8, that a plaintiff:

… accepted what was done and co-operated with the executor for over a year in administering the estate in according with the will to the point where all legacies have been paid, the life interest has terminated and all that remains is distribution to the residual beneficiaries.


66      Blake took no steps until September 2013 to challenge the Will. He co-operated with the Estate Trustees in administering the Estate for over 2 years to the point where all that remains to be done is to divide the residue between him and Cody, which he now opposes.


67      In my view, whether one says that Blake is estopped from taking the position he now has by estoppel by convention or estoppel by representation, he falls within both categories, given the facts of this case. Blake had counsel in February 2012, who stated there was an issue regarding Eleanor’s capacity to make the 2011 Wills but never took the legal step to go forward with any challenge. Is this silence? Did Blake receive legal advice that he should or should not move forward? The fact remains that nothing happened and the administration of the Estate continued in legal silence until the Application was finally made.


Mutual Release

mutual release 2At the end of each court case, the lawyers generally have each party sign a Mutual release that in layman’s terms means they will never sue each other for the same matter again, it being a final settlement.

The mutual release signed by the parties as part of their all-inclusive settlement of the prolonged estate litigation is a valid contract.

Accordingly, like any other contract, the parties are bound by the terms to which they have agreed.

A valid mutual release typically releases the other parties to the agreement from any subsequent claims related to the claims that have been released in exchange for valuable consideration.

Such releases are executed by the parties when litigation claims are settled in order to give the parties peace from potential liability from the claims and to avoid any further proceedings that might flow from the claims released.

Such releases operate as a legal bar to the pursuit of any subsequent claim that purports to raise an issue that has already been extinguished by the release.

See: Browne v. McNeilly, [2001] O.J. No. 970 (Ont. S.C.J.), at paras. 9, 13; Sinclair-Cockburn Insurance Brokers Ltd. v. Richards (2002), 61 O.R. (3d) 105, [2002] O.J. No. 3288 (Ont. C.A.), at paras. 14-16; Marjadsingh v. Walia, 2012 ONSC 6659, [2012] O.J. No. 5788 (Ont. S.C.J.), at paras. 16-18.


Credibility – Who Is Believed Wins

True or falseCredibility  is whoever is believed , usually wins the case.One can have the best of court cases, but if the Judge does not believe your client’s testimony, as  there is no witnesses credibility, usually results in a lost trial.

The BC  Court of Appeal in Faryna v. Chorney, [1952] 2 D.L.R. 354 (B.C.C.A.), . stated at page 357:

The credibility of interested witness,particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth.

The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions.
In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. …




Abuse of Process: Misusing the Court’s Process for Ulterior Purpose

Abuse of Process: Misusing the Court's Process for Ulterior Purpose

The tort of abuse of process is made out when a party shows a misuse or perversion of the Court’s process for an exterior or ulterior purpose.

In other words, using a certificate of pending litigation to tie up a property and prevent it being sold to anyone else as a negotiation tactic regarding an unrelated agreement would be an abuse of process:

In D.K. Investments Ltd. v. S.W.S. Investments Ltd., [1984] 59 B.C.L.R. 333 (S.C.), aff’d [1986] 6 B.C.L.R. (2d) 291 (C.A.) it was held:

In the plaintiff’s action for specific performance arising out of an agreement for the purchase and sale of real estate, the defendant counterclaimed for damages for abuse of process in bringing the action, in filing a lis pendens and caveat on false grounds, in swearing a false affidavit and in producing a fabricated letter in court. The trial judge gave judgment on the counterclaim, awarding $75,000 damages for abuse of process and exemplary damages of $15,000. The plaintiff appealed the award of damages for abuse of process, but it was dismissed.

For the tort of abuse of process, damages are at large. Thus the award is not limited to the pecuniary loss than can be specifically proved. As in defamation and in malicious prosecution cases, the injured party may have considerable difficulty in leading evidence to show the full extent of his loss. Frequently, it will be a matter of great difficulty for the trial judge. However, upon taking into account all the circumstances, including but not limited to the pecuniary loss proved, he will be in a position to make an appropriate award. In this case, the trial judge considered especially not only the manner in which the plaintiff had prolonged the litigation by use of the fabricated letter, but the effort to push the defendant to the brink of financial disaster in order to gain the advantage which it sought. The award of $75,000 was appropriate in the circumstances.

The Courts Power to Amend Pleadings


It is frequent in estate litigation that new facts arise and the claim must be amended to provide for the adequate remedy.

This blog is a summary of the courts power to make such an order.


Rule 6-1(1) of the Supreme Court Rules provides that a court may grant leave to amend the whole or any part of a pleading filed by the party.

Discretion to permit amendments is unfettered, subject only to the general rule that it be exercised judicially.

Considerations are: the length of the delay, reasons for the delay; prejudice to the defendants and the overriding question of what is “just and convenient”?

Teal Cedar Products v Dale Intermediaries Ltd ( 1996) 19 BCLR (3d) 282

16. Amendments should be allowed unless actual prejudice can be demonstrated by the opposing
party or the amendment would be useless.

Langret Investments S.A. v. McDonnell (1996), 21 B.C.L. R. (3d) 145,  at paras. 34.

  1. Potential prejudice is not enough to defeat an application for amendment of the pleading: Langret, supra, at para 43.
  2. There is a wide discretion in the court to determine what is in the interests of justice and to do what is just and convenient between the parties. Prejudice to the respondents can be dealt with in costs. In Jones, the court found actual prejudice arising from the amendment of the pleading, which would cause the respondent’s re-evaluation of his entire case, but the court found that this prejudice could be compensated with costs:

Jones v. Lululemon Athletica Inc., 2008 BCSC 719,

Victoria Grey Metro Trust Company v. Fort Gary Trust Company (1982), 30 B.C.L.R. (2d)
45, Mclaughlin J. (as she then was)  nicely brings together other considerations regarding the test to amend a

“Before addressing the proposed pleadings, I refer to the principles which govern the granting of amendments to pleadings. The basic rule, set out expressly in the former rules and no doubt still applicable, is that such amendments should be permitted as are necessary to determine the real question in issue between the parties. Rule 1(5) requires an interpretation of the rules which permit the just and speedy determination of the dispute on its merits. Similarly, the Law and Equity Act, R.S.B.C. 1979, c. 224, s. 10, requires the court to grant all such remedies as any of the parties may appear to be entitled to “so that, as far as possible, all matters in controversy between the parties may be completely and finally determined …” These provisions arguably support a generous approach to the question of amendments. However, the court will not allow useless amendments: Gesman v. Regina (City) (1907). 1 Sask. L.R. 39. 7 W.L.R. 307: Hubbuck & Sons Ltd. v. Wilkinson, Heywood & Clark Ltd.. 11899) 1 Q.B. 86 (C.A.). Similarly, it seems to me obvious that the court will not give its sanction to amendments which violate the rules which govern pleadings. These include the requirements relating to conciseness (R. 19(1)); material facts (R. 19(1)); particulars (R. 19(11)); and the prohibition against pleadings which disclose no reasonable claim or are otherwise scandalous, frivolous or vexatious (R. 19(24)). With respect to the latter, it may be noted that it is only in the clearest cases that a pleading will be struck out as disclosing no reasonable claim; where there is doubt on either the facts or law, the matter should be allowed to proceed for determination at trial: Mimes v. Minnes (1962). 39 W.W.R. 112. 34 D.L.R. (2d) 497 (B.C.C.A.); B.C. Power Corp. v. A.G.B.C (1962), 38 W.W.R. 577, 34 D.L.R. (2d) at 211 (B.C.C.A.). If there is any doubt, it should be resolved in favour of permitting the pleadings to stand: Winfieldv. Interior Ener. Services Ltd. (1969). 68 W.W.R. 383. 4 D.L.R. (3d) 71 (B.C.S.C). While these cases deal with striking out claims already pleaded, consistency demands that the same considerations apply to the question of amendment to permit new claims.”