Converting a Petition to an Action

Converting a Petition to an Action | Disinherited Vancouver

Re Berkenbos Estate 2018 BCSC 1661 involved in application to revoke the issuance of a grant of probate and for an order that the revocation application be converted from a petition into an action.

The court granted both orders. The deceased and her husband were married in 1989 after living together for 10 years and they were not divorced prior to her death in 2015.

One of the triable issues was whether the parties had separated before death and thus were no longer considered to be spouses under WESA. The evidence was contradictory and constituted a bona fide triable issue.

From 2000 onwards the deceased and her husband had an unconventional marriage is the deceased suffered from alcohol and drug dependency and the husband struggles mental health issues.

The deceased will named the husband is sole executor and sole beneficiary and a grant of probate had been issued.

This blog will deal with the issue and law relating to an application to convert a petition into an action.

Having to do such is in my opinion a quirk of the Supreme Court rules for which I see no purpose other than having to undergo such applications for the various types of causes of action that require the commencement of proceedings by way of a petition. Proving a will and solemn form is one example as is revocation of a grant of probate.

The test as to whether the courts should convert a petition into an action is akin to the test to be applied for summary judgment: whether on the relevant facts and applicable law, there is a bona fide triable issue.

In Kerfoot v Richter 2018 BCCA 238 the Court of Appeal confirmed that where there are disputed facts in an originating application, the chambers judge must not weigh the evidence to determine issues of fact.

The Court of Appeal in Kerfoot v Richter relied on its earlier decision in British Columbia Milk Marketing Board v Saputo Products Canada 2017 BCCA 247 where the court held that proceedings brought by petition should be referred to the trial list where there are disputes of fact or law, unless the party requesting the trial is bound to lose

The party who seeks summary judgment in the context of disputed facts bears the evidentiary burden of establishing there is no genuine issue to be tried –McLean v Law Society of British Columbia 2016 BCCA 368 at paragraphs 36 – 39

In considering evidence, however the court must not weigh it but is limited to assessing whether it establishes a triable issue.

The court explained in a previous appeal decision Skybridge Investments LTD v Metro Motors LTD 2006 BCCA 500:

1) If sufficient material facts of being pleaded to support every element of a cause of action, but one or more of those pleated material facts are contested, then the judge ruling on a rule 18(6) application is not to weigh the evidence to determine the issue of fact for the purposes of the application. The judge’s function is limited to a determination as to whether a bona fide triable issue arises on the material before the court in the context of the applicable law. If the judge ruling on a rule 18(6) application must assess to weigh the evidence to arrive at a summary judgment, the plain and obvious or beyond doubt test is not being met.

Partial Summary Judgement Refused In Limitation Defence

Partial Summary Judgement Refused In Limitation Defence

Barberio estate v Da Costa 2018 ONSC 6144 is an Ontario Supreme Court decision that refused to grant partial summary judgment on the matter relating to a limitation defence on the basis that credibility assessments and factual findings in limitation defenses need to be made at trial. Cook v Joyce ONCA 49.

In that decision the court refused to exercise its fact-finding power on partial summary judgment dealing with the limitations issue and said at paragraphs 96 – 97:

“I recognize that litigants often resort to motions for partial summary judgment to decide limitation defenses. However, partial summary judgment motions operate intentions with the general policy of the rules that separate hearings on one or more issue should only occur with the consent of the parties. While a useful tool in some cases, partial summary judgment motions create their own challenges for the fair adjudication of disputes. For example this court is cautioned that partial summary judgment may not be appropriate were at risk to duplicate or inconsistent findings. CIBC v Deloitte & Touche 2016 ONCA 922

In Barbiero the partial summary judgment application related to a defence that raised a two-year limitation period while the plaintiffs argued a ten-year limitation and the court would have to find as facts when the plaintiff became aware of the material facts in which the cause of action is based or ought to have discovered them by the exercise of reasonable diligence, is a matter of dispute and will depend upon important credibility findings.

Document Disclosure and Production

Document Disclosure and Production | Disinherited Vancouver Litigation

McLeod v Balakrishnan 2018 BCSC 908 reviews the law relating to document disclosure and production  in litigation.

The case dealt with two applications, namely that the defendant provide a comprehensive list of documents, as well as an order that she produce documents requested of her at her examination for discovery. The action involved a claim under the former wills variation act, and the estate was valued in excess of $19 million.

The plaintiff was the deceased’s son , who claims he was not adequately provided by the deceased.

The deceased set up to trusts that were valued in excess of $135 million that were not included in the valuation of the estate.

The principles considered on applications for document disclosure were summarized in Marsh Canada Limited v BFL Canada Insurance Services, Inc. 2014 BC SC 1171, beginning at paragraph 65:

“The rules provided two-tier process for document disclosure:

  1. Disclosure under rule 7-1(11)-(14) requires all documents that are or have been in the party’s possession or control, and that could, if available, be used by any party of record at trial to prove or disprove the material fact.
  1. Disclosure under 7-1 (11)-(14) requires documents that relate to any or all matters in question in the action. Thus, any document that is identified as relating to a matter in question in the action, which normally would be evidence upon an issue, but also which contains information which may, not which must, either directly or indirectly, enable the party, either to advance his own case, or to damage the case of his adversary. Kaladjian v Jose 2012 BCSC 357 at paras.44-45.
  1. By applying the proportionality principle embodied in rule1-3(2) an attempt is made to balance the burden of producing the documents in terms of time, cost and effort against the materiality and probative value. Proportionality does not only relate to monetary quantification, but also relates to the importance of the issue in question – Isman v City of New Westminster 2011 BCSC 125 at para. 14.


The following principles also apply:

  1. Full and complete disclosure between or among litigants prior to trial is essential to the truth seeking function of the litigation process and the proper administration of justice Nikolic v Olson 2011 BCSC 1066 at para. 14;
  2. It is the pleadings that determine relevance- Burgess v Buell Distribution Corportion 2012 BCSC 1494 at paras. 16-17;
  3. The interests of justice may require production of relevant documents, notwithstanding the high interest of a party and keeping it confidential- A.M. v Ryan (1997) 1 SCR 157 at para. 37;
  4. A party asserting that a document is privilege bears the onus of establishing the privilege- Hamalainen v Sippola (1991) 62 BCLR (2d) 254 CA at para. 19;
  5. The removal of the ” train of inquiry” test of relevance will generally require a party to provide some evidence to support an application for additional documents where demand is made under rule7-1(11) or Rule 7-1 (18);


The principles that apply in respect of the balance between disclosure and confidentiality were summarized in Altec Design Group Ltd v Motion Works Inc (1992) BCJ 2451 ( SC):

  1. The necessity for complete disclosure litigation cases supersedes the fact that a party may lose a competitive advantage when disclosure is made Forestral Automation Ltd v RMS Industrial Controls Inc (1977) 4 BCLR 219;
  2. In maintaining a balance between disclosure and confidentiality, the governing principle is to lean in favor of openness and disclosure- Deveron-Hercules Inc v. gill 21 CPC ( 2d) 455;
  3. The party viewing the confidential material shall give an undertaking to the court and the opposite party, the terms of which may vary from case to case- GEAC Canada Ltd v Prologic Computer Corp. 24 CPC (3d) 566;
  4. The party who is documents are being disclosed to be examined by an expert is entitled to have a representative present during the examination;
  5. An order preventing counsel from showing relevant documents to his client should only be granted in exceptional circumstances;
  6. The onus is on the party requesting the restriction to establish a legitimate reason for that restriction;
  7. Matters that do not require technical expertise, the parties may be required to produce the documents to a third party for the examination report to the court;
  8. In instances in which the probative value of the documents is not sufficiently great to outweigh the real and very considerable adverse effect of disclosing the trade secret, disclosure ought not to be ordered- Webster v Mastercraft Development Corp. (1991) 55 BCLR (2d) 121

Generally speaking, the court ordered production of several of the financial and estate documents to be produced, while also denying many other requests on the basis that they were unduly intrusive or not relevant.

Hostile Adverse Witnesses

Hostile Adverse Witnesses

Jimmy Page of Led Zeppelin fame was called as a hostile adverse witness by the opposing counsel in the opening alleged plagiarism of “Stairway to Heaven” trial.

Rule 12-5 (19) describes an adverse witness aka hostile witness as a “party who is adverse in interest”. ie  Jimmy Page was a defendant but was called as a witness by the plaintiff’s lawyer who is suing him.

There is a general rule of evidence that a lawyer cannot attempt to impeach the credibility of his or her own witness in direct examination. You are not allowed to cross examine your own witness.

An exception on occasion arises where your witness makes testifies contrary to a previous statement or testimony, the party may direct the witnesse’s attention to the prior statement. The lawyer may seek an order that the witness is adverse aka hostile and with leave of the court, be allowed to cross examine that witness, particularly about the inconsistent testimony.

Rule 12-5 (21) states that 7 days notice before the date on which the attendance of the intended party is required,  of the intention to call the opposing party as an adverse witness ,must be given along with conduct money to attend.

Rule 12-5(22) allows no notice to be given of the intention to call a witness and seek to have them declared adverse in interest if the person is in attendance at the trial. Very often once the notice is given the opposing counsel as a matte of professional courtesy will undertake to call the party as a witness thus allowing cross examination of the witness in the usual fashion.

Rule 12-5 ( 26) provides that the party calling the witness as adverse is entitled to cross examine the witness on one or more issues.

Canada Inc. v Strother 2002 BCSC 1179 held that the obvious purpose of Rules 12-5 (19)-(22) is only to permit a party to call an adverse party witness to prove a fact or facts that could not otherwise be satisfactorily proven.

The subrules were not intended to give a party two ” kicks at the can” of cross examinations . Nor should the rule be used where an assurance has been given that the adverse party witness will be called to testify as part of the adverse party’s case.