Conduct Money For Professionals


The amount of reasonable conduct money to be paid to a professional to testify occasionally arises in estate litigation.

Conduct money has historically been paid to a witness who has been subpoenaed to trial or examination for discovery, in an amount sufficient to defray the reasonable expenses of going to and from court, including overnight accommodation if necessary.

In short, the case law seems to indicate that a professional may be able to charge his or her hourly rate for testimony preparation, but is restricted in attendance fees to only $20 per day as per every other witness under appendix C schedule 3 of the Supreme Court rules.

Under appendix C schedule 3 a witness is allowed a reasonable sum for the time to prepare if the preparation is necessary. – Van de Mortel v Flagg 2006 BC SC 689 at paragraphs 18 – 21.

The leading authority on the issue of what might constitute a reasonable fee for preparation is Northland Properties LTD v. Equitable Trust Company (1992), 71 BCLR 124 at pages 128 – 30


Reasonable sum for preparation depends on three factors:

1. Whether the witness was a mere bystander, in which case his or her moral claim for compensation should be higher than that of a witness who is voluntarily involved;

2. Whether the witness has already been paid for the services which are the subject matter of his or her testimony;

3. whether the required preparation involves skills or training for which the witness is compensated in his or her regular employment. The ordinary earnings of a witness have little relation to the proper amount to be paid. The witnesses own periodic income is not the norm for payment for preparation.

The decision refers to an earlier case Fraser v. Fraser (1983) , 45 BCLR, 21, at page 22 which allow the claim of a lawyer for his usual hourly rate – to be established to the satisfaction of the assessing officer for time spent in preparation and in testifying at trial as an ordinary, but essential witness.

Where professionals called upon to testify as to the observations only, he or she may be allowed remuneration for preparation but is restricted to the $20 witness fee for attending trial to testify. United contractors LTD v . The Queen unreported January 14, 1994 new Westminster registry number C891753 BCSC

See also Luis v Marchiori 2018 BCCA 317 which discusses inter alia the difference between expert fact evidence and expert opinion evidence .

A treating doctor for example is a witness as to observations and the testimony is not opinion evidence.

Opinion evidence is where opinion is offered beyond what the actual evidence itself is capable of revealing.

The Doctrine of Clean Hands

The Doctrine of Clean Hands

A well-established principle of the law of equity is the doctrine of clean hands which states “he who comes into equity must come with clean hands.”

The clean hands doctrine serves to deny equitable relief for the misdeeds or misconduct as an immediate and necessary relation to the equity suit for- Hong Kong Bank of Canada v Wheeler holdings LTD (1993) 1 SCR 167

It must be shown, in order to justify a refusal of relief, that there is such an immediate and necessary relation between the relief sought and the delinquent behavior in question that it would be unjust to grant that particular relief.

The equitable doctrine of clean hands is related to the doctrine of “ex turpi causa “ which means that a person cannot found a claim or cause of action based on his own illegal or immoral acts- Norberg v Wynrib (1992) 2 SCR 226

In the Norberg case, a medical doctor was successfully sued for damages for prescribing prescription drugs to an addict in return for sexual favours.

In Werner v Werner (1987) BCJ 2546 (BCSC) the court refused the plaintiff’s relief stating that in order to prove his trust claim, the plaintiff had to testify as to the sham nature of the settlement agreement made in a family dispute with his wife to which he would be bound otherwise. If that agreement was valid, than his ex-wife was the owner of certain shares. The plaintiff’s claim was rejected on the basis of dirty hands.

The plaintiffs claim constituted an unlawful, immoral purpose, which had the effect of depriving the wife of an interest in property. In leading this evidence, the plaintiff ran afoul of the rule established by the Supreme Court of Canada in a series of cases including Goodfriend v Goodfriend (1972) SCR 640 that refine the rule to make it clear that the court will not accept evidence of an illegal purpose from a plaintiff who seeks to rebut the presumption of advancement.

In BMF Trading v Abraxis Holdings Ltd 2002 BCSC 590 the court stated:

“ most importantly and regardless of alternative remedies, I do not think that good conscious requires that this court should intercede in the circumstances. First, the parties deliberately structured the refers to insulate themselves from the burdens of ownership and they were cognizant of both the benefits and restrictions of such an arrangement. Now, the partners come the court alleging a relationship to four-star which directly conflicts with both the position the partners had taken in an earlier trial. The modern doctrine of constructive trust, which has been created to remedy an injustice to innocent are vulnerable parties, is not a device to be utilized by sophisticated businesspeople caught in the web of their own intrigue. Constructive trusts are not to be used as a reason Ward to parties who have gained advantage by denying legal ownership of an asset, only then to assert ownership when it suits them at a later date. This court must not facilitate such manipulation.”

A claim for constructive trust was dismissed in Mayer v Osbourne 2010 BCSC 1249 on the basis of inter alia that the plaintiff lacked clean hands because:

1) Failed to disclose evidence and knew that it was wrong;
2) gave evidence at his examination for discovery to mislead the opposing party and the examiner;
3) gave answers to some questions that he knew were not correct;
4) signed a settlement agreement knowing it was false when he signed it;
5) use the process of the court to affect a without prejudice dismissal of all of the claims advanced by the opposing party, including those that bear in the trust claims that the plaintiff advanced in the action.

The court dismissed the claims for resulting trust and constructive trust on the basis that the court could not overlook the plaintiffs lack of clean hands.- The court adopted the maximum that to accept the defence argument would be to condone chicannery if not actual fraud. No court will do so.

Registrar’s Report Confirmation Hearings

Registrar's Report Confirmation Hearings

Narwal v Narwal 2018 BCSC 1561 discusses the law relating to approval of the registrar’s inquiry and recommendation by a Supreme Court judge in what is known as a confirmation hearing.

It is a very common legal procedure to have matters involving such issues as accountings to be referred to a registrar of the Supreme Court to hold an inquiry and make a recommendation to the court as to the registrar’s findings. The registrars report is then typically referred to a Supreme Court judge to hold a confirmation hearing as to whether the Supreme Court judge will uphold or vary the registrar’s recommendation.

In this case there was a consent order that the registrar determine various issues involving the cost of construction, maintenance and repair of a house constructed by the plaintiffs on property, a determination of occupational rent, and investigation of incomes and monies received, and that upon receipt of the registrars report and recommendations the parties may apply for an order confirming the registrars report and recommendations regarding the foregoing.

The Law

At confirmation hearings the court may confirm, vary or disregard the recommendations of the registrar; alternatively, the court may remit the matter, or portion of it, back to the registrar for further inquiry or determination.

A judge reviewing the report and recommendation of a registrar is not exercising an appellate function; the court cannot assume that a registrars report must be accepted unless an error of law or principle is shown Kozma v Kozma (1985) 64 BCLR 355 (BCCA)

In considering the findings are registrar, the court is free to assess the findings in question and make its own findings.
In this context and in the usual course, the court is reluctant to disturb findings of primary fact made by a registrar, including those relating to credibility Morgan v Edwards 2001 BCCA 29.

In other words confirmation hearings are not to be used as a second kick at the can Lowe Estate 2002 BCSC 831 at para. 17.

The leading authority on the ability of the court to interfere with the findings of a registrar is Larson v Larson (1983) 80 BCLR (2d) 303.

The court held in Larson at paragraphs 329 – 330 that findings of primary fact by registrar cannot be disputed. If the facts of change, new evidence can be admitted to prove the new fax which the trial judge, or the Chambers Judge of the references with regard to intro maintenance, must take into account in determining appropriate maintenance. This rule accords with the purpose of a registrars hearing: to hold an inquiry, determine the facts, and report them to the judge, so that he or she can hold a hearing and determine what is the appropriate maintenance to order, if any.
At paragraph 330 the court set out the proper approach:

“the whole purpose of a reference has always been to investigate the basis of the allegations of fact in the pleadings and to report the findings from that investigation to the trial judge with suggestions or recommendations as to what the trial judge might order. The trial judge considers the primary reported facts, his argument, and reaches a conclusion of mixed fact and law, the amount, if any, of maintenance to be paid. If a registrar cannot find primary facts conclusively he is emasculated. If his findings are truly perverse the perversity will be evident on the record. The notes of the registrar will be available to establish that. Further evidence is not required. A finding of primary fact cannot be perverse in the absence of contrary evidence.”

Publication Bans

Publication Bans | Disinherited Vancouver Estate Litigation

Toronto Star Newspapers Ltd v Sherman Estate  2018 ONSC 4706 involved the sensational murder of two wealthy Torontonians where the courts weighed the deleterious effects of applying publication bans to protect files. The court concluded that any deleterious effect of a publication ban was substantially outweighed by the salutary effects on rights and interests of victims, beneficiaries and trustees of the estate.

The court ordered that the estate files be sealed for two years.

Journalists had sought access to the estate and investigatory files but were advised that the files were not available for viewing, so the newspaper brought application seeking variation or termination of protective orders and full and ceiling of the court files. Those applications were dismissed for a period of two years.

The case reviewed the principles applicable to win the courts will grant confidentiality orders:

1) The principle of open courts is inextricably tied to the rights guaranteed by section 2 of the Charter of Rights.- Sierra Club of Canada v. Canada (2002) 2 SCR 522;

2) The fundamental question for a court to consider in an application for a publication ban or confidentiality is whether, in the circumstances, the right to freedom of expression should be compromised and the analytical approach to the problem must be tailored to the specific rights and interest engaged in the case- Sierra Club at paragraphs 37 – 38;

3) The basic purpose of the court’s approaches to ensure that the judicial discretion to deny public access is exercised in accordance with charter principles;

4) A confidentiality order (publication ban) should only be granted when such an order 1) is necessary in order to prevent a serious risk to an important interest because reasonable alternative measures will not prevent the risk, and 2) the salutary effects of the confidentiality order outweighs it’s deleterious effects, including the effects and the right to free expression in the public interest in open and accessible court proceedings;

5) Stated differently public access will be barred only when the appropriate court, in the exercise of its discretion, concludes that disclosure would subvert the ends of justice or unduly impair its proper administration. Toronto Star Newspapers LTD v Ontario (2005) 2 SCR 188;

6) These principles apply to all discretionary court orders that limit freedom of expression and freedom of the press in relation to legal proceedings, there being no fundamental distinction to be drawn between seeming orders, publication bans rather confidentiality orders made in the context of court proceedings, both criminal and civil;

7) The test is not whether or confidentiality should be issued in order to err on the side of caution or out of an abundance of caution- the test is whether it is necessary to do so R. v Kossyrine & Vorobiov 2011 ONSC 6081

The court concluded that the burden to be satisfied by the party seeking a confidentiality order is a high one in the court must guard against any tendency to treat such applications as routine.

The open court principle is a fundamental element necessary to maintain and nourish public confidence in our courts and their integrity. Loss of that confidence when undermined the public’s willingness to accept the legitimacy of the mandate of judges to dispense justice on their behalf. From there lies a slippery slope to the sort of society no Canadian wishes to bring about.

Money Paid By Mistake (Money Had and Received)

Money Paid By Mistake (Money Had and Received) | Disinherited

Newman v Beta Maritime Ltd 2018 BCSC 1442 discussed the situation where money “had and received” is a cause of action which is available where money was paid by mistake, acquired by way of fraud or paid under duress.

The issue of the law relating to where money was paid by mistake was discussed in International longshore and Warehouse Union local 502 v Ford 2016 BCCA 226 at paragraphs 23-26 which stated:

“ as a cause of action, money had and received resembles and is related to the right of recovery for money paid under mistake”

At its most basic, money had and received is an action for the return of money which the defendant is received, but which the law says it would be unjust for him or her to keep. In Storthoaks v. Canada Ltd Oil Mobil 1976) 2SCR 147 , the Supreme Court of Canada discussed the rationale underlying the right to recover money had and received as a result of mistake. In explaining the rationale behind the right of recovery, the court relied on Kelly v Solari (1841) 152 E.R. 24 which stated in part:

“ I think that where money is paid to another under the influence of mistake, that is, upon the supposition that a specific fact is true, which would entitle the other to the money, but which fact is untrue, and the money would not have been paid if it had been known to the payer that the fact was untrue, an action will lie to recover it back, as it is against conscience to retain it; though demand may be necessary in those cases in which the party receiving may have been ignorant of the mistake. “

The court went on to clarify what is meant by circumstances were would be against conscience for the payee to retain money:

“ the court did not purport to limit the right to recover money paid under a mistake of fact to cases in which would be against conscience for the recipient of the money to retain it. What the judge said was that where money is paid on the supposition that a specific fact is true which would entitle the other to receive it, which fact is untrue and the money would not have been paid if the fact of been known to be untrue, it can be recovered and it is against conscience to retain it. In other words given the circumstances the court outlined, is against conscience for the recipient to keep the money paid.”

The claim for monies had and received is very similar to that of unjust enrichment, however the BC Court of Appeal has stated on several occasions that money had and received shall continue to be treated as a distinct cause of action, as was stated in the longshore case at paragraph 24.

The Supreme Court of Canada has held that banks were entitled to recover the funds from the plaintiff where money was paid under mistake of fact. The mistake was that the cheque was genuine. This is not a mistake relating to the plaintiff’s right to receive the funds; by all accounts the plaintiffs were entitled to receive funds would have received a forged cheque. The court concluded that it is not necessary for the mistake to relate to the recipient’s entitlement to receive the funds.

Probate Fees and Capital Gains Taxes

Probate Fees and Capital Gains Taxes | Disinherited Vancouver

Re the Estate of Wilma Bouma 2018 BCSC 1466 involved in application brought by the administrator of the estate of the deceased for an order pursuant to section 2(4) of the Probate Fee act to increase the declared value as of death from $211,300-$315,000.

The deceased had use the notice of assessment issued in 2016 that set the value of the property at $211,300, while a subsequent appraisal indicated that the value of the property as of death was in fact $315,000.

The court found that the notice of assessment while issued in 2016, really reflected the relevant time of value for the assessment as of July 1, 2015, and not 2016.

The court ordered that the value of the property as of the date of death was $315,000 and directed that the probate registry process the supplemental affidavit of assets and liabilities based on the larger amount.

The court stated as an aside that the real reason for the application was to not only reflect the true value as of the property as of the date of death, but that the purpose of same was to in effect reduce the amount of capital gains taxes that would be payable on the property.

The effect of the increased value substantially reduce the amount of capital gains taxes payable on the approximate difference of $100,000, while the additional probate fee would only be 1.4% of the additional value namely $1451.

Security For Costs Applications

Security For Costs Applications

Parmar v. Timothy Hunstsman Law Corp. 2018 BCSC 1151 involved a successful application by the defendant that the plaintiff post security for costs for the court action brought by the plaintiff, who lived in Illinois and had no assets in the province of British Columbia.

The defendant prepared a bill of costs, allowing for a five-day trial, full day examinations for discovery, instructing experts, mediation and significant disbursements totaling $35,000.

The court ordered that the plaintiff post security for costs in the amount of $20,000 within 60 days of the court order, or if not paid, the action would be dismissed.

The plaintiff had brought court action against the defendant law firm alleging breach of contract and professional negligence.

The legal principles relating to the jurisdiction of the court to order security for costs by a non-corporate plaintiff arises from the inherent jurisdiction of the court. The order is a discretionary on that must be exercised judicially and in all interests of the parties–Sheill v Coach House Motel Ltd (1982) 37 BCLR 254 ( CA) at 264.

Security for cost applications are typically brought where there are concerns that the plaintiff will not satisfy a costs award made against it because the plaintiff resides outside the jurisdiction and has no assets within it. Those circumstances on their own are not determinative.

The law is clear that poverty should not be a bar to access the court. Access to the court should not be hampered by financial issues, except in special or egregious circumstances–Han v Cho 2008 BCSC 1229 at para 14.

The onus is on the applicant. In a situation where the plaintiff is a corporation, if the defendant can show that it will not likely be able to cover costs if the claimant fails, security is generally granted.

However, security for costs where the plaintiff is an individual requires a different balancing giving the access to justice concerns. The overall balancing is the risk that a successful defendant will be unable to recover costs of security is not granted against the risk that a legitimate claim could be stifled by an order. If the latter is in play, it will override the concerns of the defendant will not recover costs of successful.

The threshold issue is whether the applicant has established, on a prima face the basis that it will be unable to recover costs in the event of success- Equstek Solutions Inc v Jack 2013 BCSC 2135 at para 26-27.

The factors that courts hearing such applications have considered in the exercise of its discretion were listed in I. J. v J.A.M.- BCSC 270 at para 14:

1) the merits of the plaintiff’s claim;
2) whether the plaintiff is bankrupt or insolvent
3) whether the plaintiff has demonstrated an intention not to comply with previous orders relating to costs payable;
4) whether there is a risk the plaintiff is not findable;
5) whether there is evidence suggesting that a false description of residence or a false name has been given to the court or use generally.

The courts often cautiously approach the issue of the merits of the case in applications for security for costs, and typically should avoid going into detail in the success or failure appears obvious.-Wang v BC Medical Association 2011 BCSC 1659.

The courts in this decision did however rely heavily on the fact that the plaintiff’s state of residence is a non-reciprocating jurisdiction and that the plaintiff had no assets in British Columbia.

The plaintiff’s lawyer conceded that the plaintiff had the means to pay security for costs without impeding his ability to pursue the claim.

Production of Documents: Court Ordered Affidavit to Verify

Production of Documents: Court Ordered Affidavit to Verify | Disinherited

Grandmaison v Berkenbos 2018 BCSC 1329 reviewed the law relating to when a court will order an affidavit to verify the legal test for the court to order an affidavit verifying the production of a list of documents.

The trial lasted 165 days, and involved 31 interlocutory court applications.

The Supreme Court decision was review of the Masters order that ordered production of the affidavit verifying the list of documents.

The court upheld the Masters decision on the basis that the master had reason that the appellant’s attitude to production brought reasonable cause to suspect that relevant documents may be hidden.

The test was set out in Centura Building Systems v Blackcomb Mountain development Ltd 2007 BCSC 939 at para. 38”:

“ The court has the discretion, under rule 26 (3) to order such an affidavit were document production has been clearly in adequate, or where a party has displayed a dilatory or casual attitude to document production. However, an affidavit will not be ordered were there has been a genuine dispute about what is producible. Where case involves a large number of documents. Some flexibility may be required.”
The term clearly inadequate was described in Copithorne v Benoit 2010 BCSC 130 at para. 11:

Rule 26(3) of the Rules of Court provides that a court may order that a party provide an affidavit verifying a list of documents. A useful authority on this issue is the decision Foundation Company of Canada LTD v Burnaby (1978) BCJ 557 at paragraph 7

“When some documents which are significant to the defense her claim of one party have, for whatever reason, been omitted for many list delivered under rule 26

(1) in the absence of any adequate explanation or reason for such a mission, an order directing the delinquent party to deliver an affidavit verifying the list of discovered documents ought, in my view, to be made.

The term ”dilatory or casual attitude” has been described as an attitude that gives the other parties reasonable cause to suspect that either deliberately or by willful indifference, relevant documents may be hidden from them. Synergy management Group Ltd v Walker Systems Corp. ( 1992) BCJ2109 at paragraph 15.

The court concluded that the court may order a party of record to serve an affidavit verifying a list of documents and circumstances, including:

1. when document production has been clearly inadequate meaning documents that are significant to the defense her claim of one party have been omitted for many list delivered under the rule, and there is no adequate explanation or reason for the omission; or

2. When a party has displayed a dilatory or casual attitude to document production, giving the other party reasonable cause to suspect that either deliberately or by willful indifference, relevant documents may be hidden from them

In addition, an affidavit will not be ordered where there is a genuine dispute as to what is producible.

The court concluded that suspicions by themselves are sufficient for an order pursuant to rule 7-1(8) the suspicions in that case were supported by conduct that gave the other party reasonable cause to suspect that relevant documents may be hidden from them.

Gardner v Viridis Energy Inc 2012 BCSC 1816 frame the legal test as follows. At paragraph 52:

“ Rule 7-1(8) permits a court to order that a party provide an affidavit verifying its list of documents when the absence of any adequate explanation, relevant documents have been omitted from the list of documents. Such an order may also be made were party has shown a dilatory and casual attitude to production of documents, leading to an inference that either deliberately or by willful indifference, relevant documents may be hidden”

No Ademption of Gift in Will

No Ademption of Gift in Will | Disinherited Vancouver Estate Litigation

Re Wood Estate 2004 BCCA 556 at para. 1 describes the doctrine of ademption as

“ a rule of the law of wills, whereby a specific bequests “adeems” or fails, if at the testator’s death the specified property is not found among his or her assets – either because the testator has parted with it, or because the property has ceased to conform with to the description of it in the will, or because the property has been wholly or partially destroyed — the doctrine applies as a matter of law, irrespective of the testator’s intentions in the matter, although his or her intentions are clearly relevant to the anterior question of whether the gift is in question is a specific legacy (and therefore subject to ademption or a general one (not subject to ademption). The doctrine is also subject to the qualification that even if the gift in question is a specific legacy, it may be saved in some circumstances of the property has changed “ in name or form only “and still forms part of the testator’s property of the date of death ”.

A specific legacy was defined in Re Wood as being of something or interest, forming part of the testator’s estate, identifiable by a sufficient description is separated from the general mass of the estate in favor of a particular legatee.

A general legacy was described as a gift of something, which of the testator leaves sufficient assets, must be raised by the executors of his general estate.

The court described demonstrative legacies as a kind of hybrid between specific and general legacies. By their nature they are a general legacy, usually pecuniary, directed to be satisfied, primarily, but not solely, out of the specified fund or a specified part of the testator’s property.

In Re Thorne Estate 2018 BCSC 934 the testator under his 1997 will, bequeathed the proceeds of the sale of his home to his Goddaughter. The will also provided that if the Goddaughter so wished, she could retain title to the property, in which case she was to be responsible for paying out the reverse mortgage on the property or arranging refinancing.

The testator developed dementia 10 years later, and was placed in a special care facility costing in excess of $8000 per month.

There were virtually no other assets in his estate other than the house, and his power of attorney sold the house, paid off the substantial reverse mortgage and other charges, and set aside $50,000 for the testator’s ongoing care, with the balance being placed in an investment.

After the deceased’s death, the executors of his estate sought the court’s direction as to whether the gift to the God daughter of the sale proceeds of the house failed by reason of ademption, or if it formed part of his estate as a demonstrative legacy that was not subject to ademption so long as the sale proceeds were, as the were here, traceable and identifiable.

The court held that the gift was not a specific legacy, but instead was a demonstrative legacy and not subject to ademption as the sale proceeds were clearly identifiable.

The court applied the basic principle governing the interpretation of wills, as set out in National Trust Company, LTD v Fleury (1965) SCR 817 at 829:

“ In the construction of wills, the primary purpose is to determine the intention of the testator, and it is only when such intention cannot be arrived at with reasonable certainty by giving the natural and ordinary meaning to the words which he has use that resort is to be had to the rules of construction which have been developed by the courts in the interpretation of other wills. It is to be remembered that such rules of construction are not rules of law and that if their application results in attributing to the testator an intention which appears inconsistent with the scheme of the will as a whole, then they are not to prevail”

The court found that the deceased’s intentions were clear and that the natural and ordinary meaning of the words were sufficient to intend a gift to the Goddaughter of his residence, together with the option of retaining ownership of the residence under certain conditions.
The court found that the bequest was a demonstrative legacy and not subject to ademption so long as the sale proceeds were traceable and identifiable.

The court further stated that even if it was incorrect, and the bequest was specific in nature, the specific property in question had been changed “in name or form only, so that it exists as substantially the same thing, although in a different shape”.

Reopening a Trial

The law relating to the reopening of a trial and the reconsideration of a previous court order is well settled.

The court has a wide discretion, which should be exercised judicially, with caution and sparingly.

The leading case in British Columbia to reopen the trial is Clayton v British  Securities LTD (19434) 49 BCLR 28 ( BCCA). At paragraph 66 – 67:

“ My view has always been that the trial judge might resume the hearing of an action apart from rules until entry of judgment, but as it was vigorously combated I have given careful consideration. The point as far as I know, has not being squarely decided, at least by any case binding on us. It is I think a salutary rule to leave unfettered discretion to the trial judge. He of course would discourage unwanted attempts to bring forward any new evidence available at trial to disturb the basis of a judgment delivered or to permit a litigant. After discovering the effect of a judgment to re-establish a broken down case with the aid of further proof. If the power is not exercised sparingly, and with the greatest care fraud and abuse of the courts processes would result. Without that power and justice might occur.

Hearing new evidence is a departure from its usual procedure, and it is fitting that departures and ordinary practice should be limited by rules to prevent abuse.– A vested right to a judgment is then obtained subject to a right to appeal and should not be lightly jeopardized . Before the gate is closed by entry a trial judge is in a better position to exercise discretion apart from rules, then an appellate court. The trial judge knows the factors in the case that influenced his or her decision and can more readily determine the weight that should be given to new evidence offered.


In deciding whether or not to reopen a case, the governing considerations are:

1) first, what a miscarriage of justice probably occur without a rehearing;
2) would a rehearing probably produce a change of result.


The second arm as to whether the rehearing would produce a change of result was examined in Vance v Vance 34 BCLR 209 at page 211, where the court stated the onus is upon the applicant to satisfy the court on the balance of probabilities, the miscarriage of justice would probably occur without the rehearing and that the evidence of argument that he now wishes to present would probably change the result of the trial. That is not to say that at this stage the applicant must satisfy me that a change in the result would be inevitable.

Some of the instances where the discretion has been exercised reopen the trial prior to the entry of a formal order are:

1) the discovery of material evidence not reasonably discoverable at the time of trial;
2) the occurrence of subsequent developments materially different from presume findings relating to future events, including the assessment of prospective damages in light of events after judgment; Lankenau v Dutton (1988) 27 BCLR (2d) 234 affirmed (1991) 55 BCLR (2d) 218 (BCCA)
3) tests performed after judgment, that newly reveal another type of damage caused by the tort;
4) evidence that could have been presented at the hearing or trial that would lead to an injustice;
5) the reasons for judgment rely on an impossible factual conclusion;
6) the terms of the order were uncertain may have patently conflicted with C’s or soon legislation;
7) there is a perceived conflict of interest of a parties lawyer at trial;
8) by oversight counsel neglected to lead evidence that may be material to the outcome MS v R(DD) (1996) 26 BCLT (3d) 231 (BCCA)

The BC Gas utility v . Alpha Manufacturing was most recently followed in Hambleton v Hambleton 2018 BCSC 999, where the court reconsidered a previous order on the basis that there was sufficient new evidence or argument, which, if available at the time of the initial order, would have likely changed the result. The case dealt with new evidence before the court that justified a reconsideration of his previous order as a result of a mental capacity hearing conducted by a person at the patient’s family doctor, but not the doctor herself.