Impeaching Witness Credibility

Impeaching Witness Credibility

The Supreme Court of Canada summarized the law relating to the impeachment of witness credibility in the rule in Browne v. Dunn in R.v Lyttle 2004 SCC 5 at paragraph 64:

“The rule in Browne v Dunn requires counsel to give notice to those witnesses whom the cross examiner intends later to impeach. The rationale for the rule is that the cross examiner should give an opportunity of making any explanation, which is open to the witness, not only as a rule of professional practice in the conduct of the case, but that is essential to fair play and fair dealing with witnesses.”

The rule although designed to provide fairness to witnesses in the parties, is not fixed, and the extent of its application is within the discretion of the trial judge, after taking into account all of the circumstances of the case.

In R.v Quansah 2015 ONCA 237 at paragraph 77 the court summarized the fairness considerations animating the confrontation principle:

1. Fairness to the witness whose credibility is attacked: the witnesses alerted that the cross examiner intends to impeach his or her evidence, and given a chance to explain why the contradictory evidence, or any inferences to be drawn from it, should not be accepted;

2. Fairness to the party whose witness is impeached- the party calling the witness has notice of the precise aspect of that witnesses testimony that are being contested, so that the party can decide whether or what confirmatory evidence to call; and

3. Fairness to the trier of fact: without the rule, the trier of fact would be deprived of information that might show the credibility impeachment to be unfounded, and this compromise the accuracy of the verdict.

The purpose of the rule in Browne v Dunn is to protect trial fairness. (– R. Podolski 2018 BCCA 96 at paragraph 145)

While it is often referred to as a rule, it’s legal application will depend on the circumstances of the case. The rule is not ossified, and flexible rule of universal and unremitting application that condemns a cross examiner who defaults to an evidentiary abyss.

The jurisprudence reflects that were trial fairness is unaffected by lack of cross examination, a cross examiner’s failure to confront a witness will not violate the rule in Browne v. Dunn.

This may be a case where it is clear or apparent, on considering all of the circumstances, which may include the pleadings and questions put to the witness an examination for discovery, that the witness or opposite party had clear, ample and effective notice of the cross examiners position or theory of the case. Therefore, where the other party, the witness, and the court are not caught by surprise because they are aware of the central issues of the litigation, the rule in Browne v. Dunn is not engaged.

Where the rule is engaged, a trial judge enjoys broad discretion in determining the appropriate remedy, and there is no fixed consequence for an infringement of the rule.

Factors to consider:

In Quansah at paragraph 117, the court listed the following factors that may inform the appropriate remedy:

  • The seriousness of the breach;
  • the context of the breach;
  • the timing of the objection
  • the position of the offending party;
  • any request to permit recall of a witness
  • the availability of the impugned witness for recall;
  • the adequacy of an instruction to explain the relevance of failure to cross examine.

A trial judge may diminish the weight of the contradictory evidence. Other remedies include recalling the witness, and in the jury context, giving a specific instruction to the jury about the failure to comply with the rule as a factor to consider in assessing credibility.

Jury Trials

Jury Trials

Rule 12 – 6 sets out nine types of court actions that cannot be heard by a jury.

A few of them are the administration of the estate of a deceased person, the dissolution of a partnership, foreclosure actions ,partition of property, custody and guardianship of children and the execution of trusts.

Accordingly, most court actions can be heard by a jury subject to a few requirements as were discussed in the decision Makasoff v CIBC World markets Inc. 2017 BCSC 2128.

The defendant successfully challenged a jury notice and obtained an order that the trial proceed by Judge alone on the basis that pursuant to rule 12-6(5) (a) the issues were too intricate and complex in character for a jury to conveniently handle.

The notice of claim was extensive and essentially alleged various breaches of contract and breaches of fiduciary duty on the part of the defendant bank.

They were in excess of 3000 documents to be considered  which the court found would require a prolonged examination of documents that may be beyond the ability of a jury to retain its understanding and during its  time constrained deliberation analyze the evidence and decide the difficult questions of the case.

The court stated that a judge would have a lengthy period of time to consider the evidence and would probably draft and redraft the  judgment several times and make countless calculations to test and verify the reasonableness of his or her conclusions. A jury does not have this luxury of time to consider its verdict.

The court further stated that it would be difficult for a judge sitting alone to properly instruct himself or herself as to the law applicable to the decision to be made, but a judge sitting with a jury must charge the jury on one occasion on all of the law that may be applicable depending upon what view of the numerous issues, the jury may take.

Plaintiffs are entitled to choose the mode of trial, but it must be clear that the trial will be fair to all parties- Lomax  v. Weins 2003 BCSC 396.

There were a multiplicity of causes of action, ranging from breach of contract, breach of fiduciary duty and interference with economic relations and the assessment of damages over a large number of transactions.

The question thus became what will the jury be asked to do and are those tasks too complex or intricate to ensure a fair trial.

The court followed the decision of Dopf v. Royal Bank of Canada 1998 CanLii 6494 (BCCA), finding that the jury would be left with an overwhelming difficulty due to the complexity of the case.

Accordingly, the court ordered that the jury notice be struck in the case proceed before a judge alone.

Certificates of Pending Litigation (CPL) – Cancellation

certificate of pending litigation cpl 2

Xie v Lai 2017 BCSC 2035 involved an application to cancel a certificate of pending litigation and the law re same was reviewed.

The legal framework respecting the cancellation of CPLs was set out in Jacobs v. Yehia, 2015 BCSC 267. The principles can be summarized as follows:

1. A party to a proceeding who claims “an estate or interest in land” may register a CPL against the land: Land Title Act, R.S.B.C. 1996, c. 250 (the “Act”), s. 215(1). But if the party is unable to demonstrate an arguable or prima facie case for an interest in land, the CPL will be cancelled: 0861695 B.C. Ltd. v. Meola, 2013 BCSC 121.

2. A CPL will also be cancelled if the action in which it has been registered has been dismissed and no appeal from the dismissal has been registered: s. 245 of the Act.

3. “An estate or interest in land” may include both legal and equitable interests. The test is not to be narrowly defined. A claim for a proprietary interest is more than the mere fact that a claim relates to land.

4. Where funds are obtained through wrongful means, and can be traced to the acquisition or improvement in land, the court may impose a remedial constructive trust: Jacobs v. Yehia at para. 25. Moreover, the claim for tracing may, in and of itself, justify an equitable charge on land for purposes of supporting a CPL.

5. A constructive trust is an equitable remedy available for circumstances such as fraud and unjust enrichment.

6. A plaintiff must show that a monetary award would be insufficient before a constructive trust will be imposed. A significant factor for consideration is whether a monetary award will be paid.

7. Where an interest in land is claimed based on a constructive trust, the question on an application to cancel it is whether a constructive trust is a possible remedy. If so, that is enough to sustain it. The test is not whether the plaintiff will be successful.

8. Tracing of funds may take place before or after legal or equitable rights have been established. In Jacobs v. Yehia at para. 30, Dickson J. (as she then was) quoted from Drucker, Inc. v. Hong, 2011 BCSC 905. In that case, Masuhara J. stated that tracing is a process, not a claim or remedy. He said the following at paras. 37 to 39:

[37] 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).

[38] In regard to tracing, it is neither a claim nor a remedy. It is merely a process by which a claimant demonstrates what has happened to his or her property so as to justify his or her claim that those proceeds can properly be regarded as representing his or her property: Foskett v. McKeown, [2000] 3 All E.R. 97 (H.L.). There are three conditions which must be met:

(i) the property must be traceable;
(ii) there must be an equity to trace; and
(iii) tracing must not produce an inequitable result.
See: Snell’s Equity, 29th ed. (London: Sweet & Maxwell, 1990) at p. 299.

[39] Based on the following facts, I accept the position of the plaintiff that there is an arguable case for a remedial constructive trust in the Property or in the misappropriated funds which might be traced to the Property, either of which could sustain the CPL on the Property. This is sufficient to establish a claim for interest in land within the meaning of s. 215(1) of the Land Title Act.

9. Finally, the test for an interim injunction preventing the disposal of the property is more stringent than the test for entitlement to a CPL. It requires an assessment of the merits of the case and of the balance of convenience. Moreover, unless a court otherwise orders, the plaintiff will be required to swear an undertaking as to damages: see Evergreen Building Ltd. v. IBI Leaseholds Ltd., 2005 BCSC 1161.

10. In order to apply for cancellation of registration, the applicant must show that “… hardship and inconvenience are experienced or are likely to be experienced by the registration”: Land Title Act, s. 256 (1).

11. The court is not required to be “exacting” in its assessment of hardship and inconvenience: Youyi Group Holdings (Canada) Ltd. v. Brentwood Lanes Canada Ltd., 2014 BCCA 388.



Will and court order drafters should be aware of the rule in Saunders v. Vautier, (1841) 41 E.R. 482), a decision of the English courts of equity from 1841.

The rule occasionally comes to my attention when a will attempts to make a bequest to a mentally capable adult over the age of majority to take effect at a much later date (such as age 50), but the will drafter fails to provide for a “gift over” to an alternate beneficiary in the event that the beneficiary does not live to the later age and can take the bequest outright.

In such a drafting event, the adult beneficiary is able to apply to the court invoking the Saunders v. Vautier rule to collapse the trust provisions and take the bequest at the time of the deceased’s death without having to attain the later stipulated age.

A typical example is where a beneficiary (such as a grandchild) is a capable adult of sound mind and the will bequests that $50,000 be payable to the beneficiary on his 25th birthday, the income to be payable to him annually until he attains that age.  In this event, since there is no gift over to another beneficiary if the beneficiary does not attain the age of 25, upon attaining the age of majority (being 19 in British Columbia), the said beneficiary can call for the capital and any income withheld during his minority to be paid forthwith.

The result would be different if the will stated that the trustee was to set aside $50,000 for each grandchild who is under 25 when the testator dies, and that if a grandchild died before attaining age 25 leaving children surviving him, then those children (being great-grandchildren of the testator) would take the deceased grandchild’s share.  In that the interests of the great-grandchildren need to be considered, and the Saunders v. Vautier rule will not apply as there was a gift over to the great-grandchildren in the event the grandchild did not reach age 25.

The leading Canadian case is the Supreme Court of Canada decision of Baschau v. Rogers Communications Inc., 2006 SCC 28, which stated at paragraph 21:

The common law rule in Saunders v. Vautier can be concisely stated as allowing beneficiaries of a trust to depart from the settlor’s original intentions, provided that they are of full legal capacity and are together entitled to all the rights of beneficial ownership in the trust property.  More formally, the rule is stated as follows in Underhill and Hayton: Law of Trusts and Trustees (14th edition, 1987), at paragraph 628:

If there is only one beneficiary, or if there are several beneficiaries, whether entitled concurrently or successively, and they are all of one mind, and he or they are not under any disability, the specific performance of the trust may be arrested, and the trust modified or extinguished by him or them, without reference to the wishes of the settlor or trustees.

Vested or Contingent Gift? 

An analysis as to whether the rule in Saunders v. Vautier applies or not requires an examination of the difference between a vested and a contingent interest.

In Campbell Estate, 2005 BCSC 1561 at paragraph 13 stated:

A contingent interest is one that is subject to the happening of an event that may never occur.  A vested interest, on the other hand, is one the enjoyment of which is merely postponed, though it may be subject to subsequent divestment. . . . In other words, if the gift is subject to a condition precedent, then it is contingent; if it is subject to a condition subsequent (which will cause the interest to be divested if the condition is met) it is vested subject to divestment.

There is a presumption in law of early vesting and to avoid an intestacy if possible. (Fargey v Fargey Estate, 2015 BCSC 721).

Saunders . Vautier Applied

Saunders v Vautier was applied in Grieg v National Trust, (1998) 20 ETR (2d) 309, where the petitioner was involved in an accident as an infant, who later applied to the court to determine the trust set out in the court-ordered settlement of her lawsuit after she attained the age of majority.

The terms of the court-ordered trust were that the corporate trustee was directed to invest the trust fund and to pay out such amounts from the income and capital of the fund as required by the petitioner during her infancy.

After the petitioner became 19 years of age, the trustee was directed to pay the petitioner the income from the trust until she became 25 years of age, at which time one-half of the capital and any accumulated income was to be paid to her. The balance of the trust was to remain invested until she became 30 years of age, after which time she should be paid the total standing to her credit.

The court held that even though the trust was settled by way of a court order, the rule in Saunders v. Vautier still applied since the beneficiary was of full capacity, and there being no gift over, the beneficiary had the full beneficial interest, both as to payments during her lifetime and throughout the control of the reversionary interest.

As such, the petitioner had the right to determine the trust and receive the sum held for her on her behalf.  The court varied the trust to pay the petitioner the entire sum upon her attaining age 19.

Saunders v Vautier Not Applied 

Saunders v. Vautier was held not to apply in Little v Salterio 14 Sask. R. 18, where a father’s will directed his trustee to pay the net income from the residue of his estate to his daughter until she attained the age of 45 years, at which time he directed that the capital of the residue be paid to her absolutely.

The will further provided that in the event that his daughter died before attaining the age of 45 years, then the income was to be used for the benefit of his granddaughter until she attaining the age of 25, at which time he directed that the capital be paid to her absolutely.

The testator died when the daughter was 35 years of age and the granddaughter age 10. The daughter applied to the court for an order immediately vesting the residue of the estate.

Her application was refused on the basis that her bequest had not vested and was contingent upon her attaining the age of 45 years, and that the gift over to the granddaughter prevented the vesting of the trust property until she did actually attain the age of 45 years.

Since the gift of capital to the daughter was consequently not vested absolutely, but was contingent upon her attaining the age of 45 years, she was not entitled to collapse the trust.

The application was opposed by the Official Guardian of Saskatchewan, who relied upon the decision Berwick v Canada Trust Co. (1948) SCR 151 for the proposition that where there are no words of immediate gift, the gift is not vested absolutely and therefore immediate payment will not be ordered under the rule in Saunders v. Vautier.

The Berwick decision of the Supreme Court of Canada was itself an application under Saunders v. Vautier that was dismissed by the court.

In Berwick a trust created by the will of the testator provided that income be paid to his son for 10 years and that the capital be paid at the expiration of the 10 years.  The will further provided that the son’s share was to be given to the son’s estate in the event that the son predeceased the testator or died before the expiration of the 10-year period.

The son applied for the capital before the expiration of the 10 years but the court dismissed his application since there was a gift over to the son’s estate and the bequest to the son was contingent upon the expiration of 10 years.


Will drafters are often asked by testators to delay a bequest to a beneficiary until a much later date than the age of 19, which in itself is achievable if the will is drafted correctly-that is, by providing for a “gift over” to an alternate beneficiary to provide for the event that the  first beneficiary may die before reaching the age of entitlement to the full bequest. Unless the will drafter is aware of the rule in Saunders v. Vautier there may be a failure to provide for a gift over, which will entitle a mentally capable beneficiary who reaches the age of 19 to apply to collapse the trust and take the bequest absolutely without having to await attaining the stipulated later age set out in the will.

Rectification of a Document

Rectification of a Document

Re McDonald Bankruptcy 2017 BCSC 1957 deals with an attempt to rectify  the terms of a written agreement in a bankruptcy proceeding.

The court refused to do so based on the following legal rationale.

103      In Snell’s Equity, (32nd ed., 2011) in the first supplement to this edition, the author commented on the limits to rectification at page 35. He says the intention of the parties at the time the deed was executed is relevant, rather than the intention if they had they realised the mistake at the time. The author says:
There can thus be no rectification if the omission of a term was deliberate, even if this was due to an erroneous belief that the term was unnecessary or that it was sufficiently dealt with in the antecedent oral agreement, or that the term was illegal, or a breach of covenant, and similarly if the instrument intentionally contains a provision which in fact means something different from what the parties thought it meant. Rectification ensures that the instrument contains the provisions which the parties actually intended it to contain, and not those which it would have contained had they been better informed.”

[emphasis added]

104      In the recent case of Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56, the Supreme Court of Canada reaffirmed the limitations on the remedy of rectification. Fairmont Hotels Inc. (“Fairmont”) was involved in the financing of Legacy Hotel’s purchase of two other hotels. The financing was intended to be tax-neutral. However, the financing mechanism resulted in unexpected tax liability when Fairmont was acquired and Legacy Hotel terminated the financing agreement. Fairmont sought to avoid that liability by rectification of the directors’ resolutions. The Supreme Court of Canada allowed the appeal and found rectification was not available to Fairmont. In doing so, the Court said:

[3] . . . Rectification is limited to cases where the agreement between the parties was not correctly recorded in the instrument that became the final expression of that agreement . . . It does not undo unanticipated effects of that agreement. While, therefore, the Court may rectify an instrument which inaccurately records the party’s agreement respecting what was to be done, it may not change the agreement in order to salvage what a party had hoped to achieve.
. . .
[13] Because rectification allows courts to rewrite what the parties had originally intended to be the final expression of their agreement, it is “a potent remedy” (Snell’s Equity (33rd ed.
2015), by J. McGhee, at pp. 417-18). It must, as this Court has repeatedly stated . . . be used “with great caution”, since a “relaxed approach to rectification as a substitute for due diligence at the time a document is signed would undermine the confidence of the commercial world in written contracts”: Performance Industries, at para. 31. It bears reiterating that rectification is limited solely to cases where a written agreement has incorrectly recorded the parties’ antecedent agreement (Swan and Adamski, at 8.229). It is not concerned with mistakes merely in the making of that antecedent agreement . . . In short, rectification is unavailable where the basis for seeking it is that one or both of the parties wish to amend not the instrument recording their agreement but the agreement itself.

105      A claim for rectification requires evidence that a legal instrument does not accord with what it was intended to record, and the way the instrument was actually recorded: Fairmont at para. 12. The specific terms or omissions in the error must be identified for the court: Fairmont, at para. 32. The prior agreement must have definite and ascertainable terms and must have been in effect when the instrument was executed: Fairmont, at para. 38.

106      A court’s role in a rectification action is only to correct errors and not to speculate about a party’s intentions: Fairmont, at para. 32. A court can only determine whether the written agreement properly records a prior oral agreement of the parties. The prior oral agreement must be definitive and ascertainable, and the error must be in the way the agreement was transcribed into the instrument.

107      Rectification is not concerned with mistakes in the underlying agreement. If parties use an ambiguous term in the prior oral agreement or otherwise make a mistake, the doctrine of rectification is not available to interpret or correct a term in a manner that a party wishes the term to be corrected or interpreted. Rectification is not intended to be a substitute for due diligence: Fairmont, at para. 13. Neither is rectification a method to rectify a party’s error of judgment, or rectify an instrument to better reflect what would have been a more beneficial arrangement at the time.

108      Simply, the court’s task is to “restore the parties to their original bargain” and not to import intention, reflecting what could have been done.

Gifts of Cheques

Gifts of Cheques

Teixeira v Markgraf 2017 ONCA 819 dealt with the issue of inter vivos gifts of  cheques.

In the Teireira case the plaintiff was given a cheque to cash as a gift several days before the death of  the bank account holder.

The cheque was for $100,000 but there was only $84,000 in that particular account the cheque was issued on but there were other monies on deposit that the bank refused to transfer to make up the $100,000 without the express permission of the account holder.

The recipient of the cheque sued the bank and lost both at trial and on appeal.

The application judge was correct in holding that that the cheque was a gift inter vivos and that the law of gifts applied to the facts of this case.

37      The absence of consideration is one of the central indicia of a gift at law. By its very nature, a gift is a voluntary transfer of property to another without consideration: McNamee v. McNamee, 2011 ONCA 533, 106 O.R. (3d) 401, at para. 23. In Peter v. Beblow, [1993] 1 S.C.R. 980, McLachlin J. (as she was then) described the “central element of a gift at law” as the “intentional giving to another without expectation of remuneration”: at pp. 991-2.

38      The three elements of a legally valid gift identified by the application judge and referred to at para. 10, above, are well established:

(1) an intention to make a gift on the part of the donor, without consideration or expectation of remuneration;

(2) an acceptance of the gift by the donee; and

(3) a sufficient act of delivery or transfer of the property to complete the transaction: McNamee v. McNamee, at para. 24. All three requirements are essential: Mary Jane Mossman & William F. Flanagan, Property Law: Cases and Commentary, 2nd ed. (Toronto: Emond Montgomery Publications Limited, 2004), at p. 441.

39      The first two elements are not at issue on this appeal. The central issue here is whether the delivery of the cheque for $100,000 into the hands of the appellant could be a sufficient act of delivery of the gift. The wrinkle in this case is that there were insufficient funds in Mary’s account.


40      The delivery requirement has been a part of the modern law of gifts since the seminal case of Irons v. Smallpiece (1819), 2 B. & A. 551. The delivery requirement is an important distinguishing feature of gifts as compared to other methods of transferring property, such as by contract. As Mossman and Flanagan note in Property Law: Cases and Commentary, at p. 442:

The delivery requirement marks an important difference between contract law and the law of gifts. A contract involves an exchange of promises. A gift, a unilateral promise, does not. Contract law will enforce an exchange of promises (a “bargain” promise) with expectation damages. On the other hand, the law of gifts attaches no significance to a unilateral promise to pay in the absence of delivery.

41      The delivery requirement in the law of gifts continues to serve several important functions. It forces a would-be donor to consider the consequences of their expressed intention to make a gift and it furnishes tangible proof that a gift has in fact been made: see Bruce Ziff, Principles of Property Law, 6th ed. (Toronto, Thomson Reuters, 2014), at pp. 161-2. See also: Philip Mechem, “The Requirement of Delivery in Gifts of Chattels and of Choses in Action Evidenced by Commercial Instruments” (1926) 21 Ill. L. Rev. 341, at pp. 348-352.

Indicia of delivery

42      The most obvious form of delivery is the actual physical transfer of the subject matter of the gift from the donor to the donee such that the gift is literally given away: see Ziff, at p. 161.

43      However, in certain circumstances, such as where the item is unwieldy, courts have acknowledged that constructive delivery will suffice. In these cases, the critical questions have been whether or not the donor retained the means of control and whether all that could be done had been done to divest title in favour of the donee: see Ziff, at p. 165.

44      Ultimately, in order for a gift to be valid and enforceable, the donor must have done everything necessary and in his or her power to effect the transfer of the property: Kavanagh v. Lajoie, 2014 ONCA 187, 317 O.A.C. 274, at para. 13.

Gifts by Cheque

45      A gift of cash can be readily effected by delivery to the donee. But a gift of money by cheque can be problematic, due to the nature of a cheque. A cheque is not money. Nor is it a transfer of property. It is a direction by the drawer (the bank’s customer) to the drawer’s bank to pay a sum of money to the payee: Re Bernard (1911), 2 O.W.N. 716 (Div. Ct.), at p. 717. The direction can be revoked by the drawer at any time — for example, by a “stop payment” order, referred to in s. 167 of the BEA as “countermand”. Under s. 167, the bank’s authority to pay the cheque is terminated by countermand or when the bank receives notice of its customer’s death: McLellan v. McLellan (1911), 25 O.L.R. 214 (Div. Ct.), at p. 216; Re Beaumont, [1902] 1 Ch. 889, at p. 894.1

46      For these reasons, a gift by cheque is not complete when the cheque is given to the donee. It is only complete when the cheque has been cashed or has cleared: see Ziff, at p. 166. Thus, in Campbell v. Fenwick, [1934] O.R. 692 (C.A.), a cheque given to the donee three days before the donor’s death and cashed a day before her death was found to be a valid inter vivos gift of the amount of the cheque.

47      In Re Swinburne, above, a case strikingly similar to this one, the Court of Appeal for England and Wales held that the death of the donor ruins a gift inter vivos by way of cheque if the cheque is not deposited before the donor dies. There, the donor had given the defendant a cheque shortly before her death. The bank refused to honour the cheque because of concerns about the validity of the signature. Before anything else could be done, the donor died. On the date the cheque was presented, the donor had insufficient funds in her current account, on which the cheque was drawn, but sufficient money to cover the cheque in her deposit account. In light of evidence given by the bank that it might honour a cheque in such circumstances, the court considered the case as though the whole amount was in the current account.

48      Nonetheless, the court held that a gift inter vivos was not made out. In reaching this conclusion, Warrington L.J. wrote, at p. 44:

[I]n order to make an effectual gift inter vivos there must be an actual transfer of the subject of the gift or of the indicia of title thereto. A cheque is not money. It is not the indicia of title to money. A cheque is nothing more than an order directed to the person who has the custody of the money of the [donor] requiring him to pay so much to the person in whose favour the cheque is drawn.

49      Similarly, in Re Bernard, above, the deceased had written a cheque for $1,000 payable to her sister and put it in her “cash box” with a note that her sister should present the cheque one month after her death. She gave the key to the box to her niece, with instructions to give it to her solicitor after her death. The box was duly opened after her death and the cheque was discovered. Chief Justice Mulock held that the donee could not enforce her claim, stating, at p. 717:

A cheque is not a chose in action, but merely a direction to some one, who may or may not have in his possession funds of the drawer authorising him to pay to the payee a certain sum of money. Death of the drawer before presentation revokes such authority. Thus in this case the claimant is met with two difficulties, each fatal to her claim: one being that the cheque not having been acted upon by acceptance or payment, never lost its primary character of a mere cheque, which is not a chose in action, and is not the subject of donatio mortis causa; and the other being that the testatrix’s death revoked the banker’s authority to pay the cheque.

50      The appellant argues that death only terminates the bank’s authority to pay on a cheque, not the drawer’s duty to pay, citing Crawford’s The Law of Banking and Payment in Canada. While this statement of the law is correct with respect to the authority of the bank, there must still be some independent duty to pay in order for the payee to be able to enforce a claim against the estate. As Crawford goes on to state, in the same passage cited by the appellant, at p. 34-54.1:

However, since the bank has no duty to anyone but its customer to pay, unless it has certified the cheque . . . , the only recourse available to the holder is action against the estate, assuming that the liability continues under the applicable provincial law dealing with successions. If the holder is not a holder for value, as where a gift or donatio mortis causa has been attempted, he may retain proceeds collected before the bank learned of its customer’s death, but will be unable to compel completion by payment thereafter, at least in any common law province. [Footnotes omitted.]

51      The appellant also cites Campbell v. Fenwick, above, in support of the contention that death terminates any power of revocation of a cheque by the estate of the donor and leaves the original gift in full vigour and effect. However, in Campbell v. Fenwick, the donee had successfully deposited the cheque the day before the death of the donor and the estate was trying to recover the funds. The gift inter vivos was therefore complete and death did not intervene. Indeed, the donee in that case had learned that a cheque would be revoked by death and knew the importance of having the cheque cashed during the donor’s lifetime. She deposited the cheque the day after she received it for this reason.

52      I conclude that the application judge was correct. The purported gift of $100,000 by way of cheque failed because it was not delivered before the bank received notice of Mary’s death.

Adjournment of a Trial

For a number of reasons it is sometimes necessary to seek an adjournment of a scheduled trial.

38      The adjournment of a trial is a discretionary matter. This discretion must be exercised in accordance with the interests of justice. There are a number of considerations to take into account.

39      In Navarro v. Doig River First Nation, 2015 BCSC 2173, the court provided a comprehensive review of the legal principles to be considered on an adjournment application with the paramount consideration being the interests of justice in ensuring that there will remain a fair trial on the merits of the action. As noted in that case at paras. 18 to 26:

[18] A judge exercises discretion when an adjournment is sought and has wide powers in relation to the order that is made (Cal-Wood Door v. Olma, [1984] B.C.J. No. 1953at para. 13 (C.A.) (Cal-Wood Door)). The discretion must, of course, be exercised judicially in accordance with appropriate principles (Dhillon v. Virk, 2014 BCSC 745at para. 8 (Dhillon)). The exercise of discretion is a delicate and difficult matter that addresses the interests of justice by balancing the interests of the plaintiff and of the defendant (Sidoroff v. Joe (1992), 76 B.C.L.R. (2d) 82 at paras. 8-11 (C.A.) (Sidoroff)). This balancing requires a careful consideration of all of the elements of the case including the nature of the proceedings and the parties (Sidoroff at para. 10). The Court of Appeal will be extremely reluctant to interfere with a decision of a trial judge on an adjournment matter which is integral to exercise of judicial discretion (Sidoroff at para. 11;Toronto-Dominion Bank v. Hylton, 2010 ONCA 752at para. 36 (Toronto-Dominion Bank)).

[19] There are numerous factors to be considered on an adjournment application. However, the paramount consideration is the interest of justice in ensuring that there will remain a fair trial on the merits of the action (Cal-Wood Door at para. 13; Graham v. Vandersloot, 2012 ONCA 60at para. 12 (Graham)). Because the overall interests of justice must prevail at the end of the day, courts are generous rather than overly strict in granting adjournments, particularly where granting the request will promote a decision on the merits (Graham at para. 12). The natural frustration of judicial officials and opposing parties over delays in processing civil cases must give way to the interests of justice, which favours a claimant having his day in court and a fair chance to make out his case (Graham at para. 12).

[20] Other factors or considerations include (in no particular order of priority):

– the expeditious and speedy resolution of matters on their merits (Rule 1-3(1); Sidoroff at para. 10);
– the reasonableness of the request (Dhillon at para. 16);
-the grounds or explanation for the adjournment (Dhillon at para. 16; Toronto-Dominion Bank at para. 38);
– the timeliness of the request (Dhillon at para. 16);
– the potential prejudice to each party (Dhillon at paras. 16-17);
– the right to a fair trial (Dhillon at para. 16);
– the proper administration of justice (Dhillon at paras. 16 and 39; Toronto-Dominion Bank at para. 36);
– the history of the matter, including deliberate delay or misuse of the court process (Toronto-Dominion Bank at para. 38); and
– the fact of a self-represented litigant (Toronto-Dominion Bank at para. 39).

[21] Securing a fair trial on the merits of the action is the ultimate goal. This requires consideration of the nature of the claim. If the claim is novel, then the prospect for success is one factor to consider (Sangha v. Azevedo, 2005 BCCA 184at para. 15 (Sangha)). However, the prospect for substantive success should not be the sole basis for refusal of an adjournment (Toronto-Dominion Bank at para. 41).

[22] The expeditious and speedy resolution of a matter raises the question of whether there has been a previous adjournment and, if so, the reasons for that prior adjournment. If the circumstances have not changed, a subsequent application will likely not be successful (Kendall v. Sirard, 2007 ONCA 468at para. 46).

[23] Timeliness of the request is a factor. An application made at the opening of trial on the grounds that a party cannot be present will be carefully scrutinized as to the effect upon other parties, whether the party’s evidence is crucial, and what other recourse was available (Warner v. Graham (1945), 62 B.C.R. 273 at 277-278 (S.C.)). If the trial is already underway and an adjournment may be indefinite, the court will want to consider whether it is certain that granting an adjournment would resolve the issue that was the cause of the adjournment request (Dhillon at para. 11).

[24] The explanation for the need of an adjournment is an important consideration. It has been said that simple neglect to get properly ready for a hearing, while irksome for the other party, will still usually lead to an adjournment on the theory that the prejudice to the person denied the adjournment will be greater than prejudice to the person who is forced to accept an adjournment (Michel v. Lafrentz, 1998 ABCA 224at para. 12). It would be unjust to decide, without more, that a party who has been less than diligent will be forced to go to trial unprepared (Trumbley v. Belanger, [1994] B.C.J. No. 2178at para. 4 (S.C.)). Failure of a party’s lawyer to take appropriate and/or timely steps should not irrevocably jeopardize the client under the “often applied principle that the sins of the lawyer should not be visited upon the client” provided that relief can be given on terms that protect the innocent adversary as to costs thrown away and as to the security of the legal position he has gained (Graham at para. 10). However, counsel’s simple statement that he is not ready for trial may not be sufficient (W. Thomson & Co. v. British America Assurance Co. (1930), 43 B.C.R. 194 at 196 (C.A.)). The fact of a medical condition that may impair a party’s ability to conduct his case as well as he might does not, in itself, mandate an adjournment, but it is a serious consideration (Sangha at para. 15).

[25] Prejudice to the parties if an adjournment is granted or is not granted must be considered. Any prejudice to be suffered by either side must be weighed and balanced. However, it is non-compensable prejudice that is pivotal (Khimji v. Dhanani (2004), 69 O.R. (3d) 790 at para. 19 (C.A.); Graham at paras. 7 and 9). If the problems raised by an explanation of prejudice can be met by conditions of an adjournment, then, upon consideration of all of the circumstances, an adjournment may be granted (Cal-Wood Door at para. 17).

[26] Overall delay in the history of proceedings may be a factor. Prolonged delay due to tactical considerations may be inexcusable and result in injustice to the other side because a fair trial is no longer possible (Irving v. Irving (1982), 140 D.L.R. (3d) 157 at 160-163, [1982] B.C.J. No. 970 at paras. 8-11 (C.A.) (Irving)). However, a delay forced on a party by negligent solicitors, impecuniosity, or illness is distinguished from tactical delay. The issue is whether the delay is excusable in light of the reason for it and other circumstances (Irving at 163 D.L.R., para. 11 B.C.J.).

40      As referenced in Wright v. Sun Life Assurance Company of Canada, 2014 BCSC 2621, the following are factors that may support the denial of an adjournment:

[6] Factors that may support the denial of an adjournment may include: a lack of compliance with prior court orders; previous adjournments that have been granted to the applicant; previous peremptory hearing dates; the desirability of having the matter decided; and a finding that the applicant is seeking to manipulate the system by orchestrating delay.

41      In Wright, the court noted the factors which may support an adjournment:

[7] Factors which may favour the granting of an adjournment include: the fact that the consequences of a hearing are serious; that the applicant would be prejudiced if the request were not granted; and a finding that the applicant was honestly seeking to exercise

Partial Summary Trial Rebuked

Partial Summary Trial Rebuked

The Ontario Court of Appeal has issued a warning to lawyers that they should only bring partial summary judgment motions in the clearest of cases.

In a recent judgment in Butera v. Chown, Cairns LLP,2017, the court allowed a $5-million negligence action brought against a law firm to proceed to trial in its entirety and rolled back a lower court judge’s decision to dismiss part of the case.

“A motion for partial summary judgment should be considered a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner.”

[23] In Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] 1 S.C.R. 87, the Supreme Court rewrote the law on summary judgments. Justice Karakatsanis, writing for a unanimous court, commenced her analysis by stating: “Ensuring access to justice is the greatest challenge to the rule of law in Canada today.” She described accessibility as being achievable through justice that is proportionate, timely and affordable. As noted in that decision, rr. 1.04(1) and (1.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, specifically codify the proportionality principle:

1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

[24] The Superior Court of Justice has since considered a multitude of summary judgment motions using the principles established in Hryniak.

[25] Hryniak does not address partial summary judgment per se except in the context of exercising the enhanced fact-finding powers contained in r. 20.04(2.1). In that regard, Karakatsanis J. observed that it may not be in the interests of justice to use the new fact-finding powers to grant summary judgment against a single defendant if the claims against other parties will proceed to trial in any event. Such partial summary judgment runs the risk of duplicative proceedings or inconsistent facts.
On the other hand, Karakatsanis J. noted that the “resolution of an important claim against a key party could significantly advance access to justice and be the most proportionate, timely and cost effective approach.”

[26] The pre-Hryniak appellate jurisprudence on partial summary judgment limited its availability. At para. 3 of Corchis v. KPMG Peat Marwick Thorne, [2002] O.J. No. 1437 (C.A.), this court applied Gold Chance International Ltd. v. Daigle& Hancock, [2001] O.J. No. 1032 (S.C.J.) to state that:

Partial summary judgment ought only to be granted in the clearest of cases where the issue on which judgment is sought is clearly severable from the balance of the case. If this principle is not followed, there is a very real possibility of a trial result that is inconsistent with the result of the summary judgment motion on essentially the same claim.

[23] Since Hryniak, this court has considered partial summary judgment in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 (CanLII), 120 O.R. (3d) 438 and in Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922 (CanLII), 133 O.R. (3d) 561. Baywood was decided in the context of a motion for summary judgment on all claims, but where only partial summary judgment was granted. CIBC involved a motion for partial summary judgment.

[24] In both Baywood and CIBC, the court analyzed the issue from the perspective of whether (i) there was a risk of duplicative or inconsistent findings at trial and whether (ii) granting partial summary judgment was advisable in the context of the litigation as a whole. In both cases, the court held that partial summary judgment was inadvisable in the circumstances.

[25] The caution expressed pre-Hryniak in Corchis is equally applicable in the post -Hryniak world. In addition to the danger of duplicative or inconsistent findings considered in Baywood and CIBC, partial summary judgment raises further problems that are anathema to the stated objectives underlying Hryniak.

[26] First, such motions cause the resolution of the main action to be delayed. Typically, an action does not progress in the face of a motion for partial summary judgment. A delay tactic, dressed as a request for partial summary judgment, may be used, albeit improperly, to cause an opposing party to expend time and legal fees on a motion that will not finally determine the action and, at best, will only resolve one element of the action. At worst, the result is only increased fees and delay. There is also always the possibility of an appeal.

[27] Second, a motion for partial summary judgment may by very expensive. The provision for a presumptive cost award for an unsuccessful summary judgment motion that existed under the former summary judgment rule has been repealed, thereby removing a disincentive for bringing partial summary judgment motions.

[28] Third, judges, who already face a significant responsibility addressing the increase in summary judgment motions that have flowed since Hryniak, are required to spend time hearing partial summary judgment motions and writing comprehensive reasons on an issue that does not dispose of the action.

[29] Fourth, the record available at the hearing of a partial summary judgment motion will likely not be as expansive as the record at trial therefore increasing the danger of inconsistent findings.

[23] When bringing a motion for partial summary judgment, the moving party should consider these factors in assessing whether the motion is advisable in the context of the litigation as a whole. A motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner. Such an approach is consistent with the objectives described by the Supreme Court in Hryniak and with the direction that the Rules be liberally construed to secure the just, most expeditious, and least expensive determination of every civil proceeding on its merits.

[24] Lastly, I would observe the obvious, namely, that a motion for partial summary judgment differs from a motion for summary judgment. If the latter is granted, subject to appeals, it results in the disposal of the entire action. In addition, to the extent the motion judge considers it advisable, if the motion for summary judgment is not granted but is successful in part, partial summary judgment may be ordered in that context.

[25] Turning then to the substance of the second ground of appeal, the appellants submit that granting partial summary judgment on the misrepresentation issue provides minimal, if any, efficiency as the action is proceeding to trial on the negligence, breach of contract, and Arthur Wishart Act claims. The misrepresentation claims are largely intertwined with these other claims and partial summary judgment risks inconsistent results.

[26] The respondents reject these submissions, arguing that r. 20.05(1) recognizes the utility of partial summary judgment. The motion judge’s decision is entitled to deference and was appropriate for the litigation as a whole.

As explained in Hryniak, the exercise of powers under the summary judgment rule generally attracts deference. Here the motion judge made an extricable error in principle in failing to consider whether partial summary judgment was appropriate in the context of the litigation as a whole. As the appellants point out, the action is proceeding to trial on the Arthur Wishart Act claims, which include allegations of a breach of the duty of fair dealing and deficient disclosure, the claims in negligence, and for breach of contract. These claims are intertwined with the misrepresentation claims. An award of partial summary judgment in these circumstances may lead to inconsistent results to the extent the misrepresentation claims were not barred due to a limitation period. On the other hand, had the litigation as a whole been considered, partial summary judgment would not have been an appropriate award as it would not serve the objectives of proportionality, efficiency, and cost effectiveness.

Summary Judgement Principles

Summary Judgement Principles

Summary Judgment Principles were discussed in Winter v Sherman 2017 ONSC 5492

[25]           Summary judgment is available where there is no genuine issue for trial: Hyrniak v. Mauldin, 2014 SCC 7 (CanLII), 366 D.L.R. (4th) 641, at para. 34.

[26]           The court will find that there is no genuine issue requiring a trial when it is able to reach a fair and just determination on the merits.  The motions judge should determine if there is a genuine issue requiring a trial based only on the evidenece before her, without using the fact-finding powers in Rule 20.04(2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194:  Hyrniak, at paras. 49 and 66.

[27]           The standard for a “fair and just determination” is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.  The evidence need not be equivalent to that at trial but must be such that the judge is confident that she can fairly resolve the dispute: Hyrniak, at paras. 50 and 57.

[28]           On a summary judgment motion, the court is entitled to assume that the parties have advanced their best case and that the record contains all of the evidence the parties would present at trial: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 (CanLII), [2014] O.J. No. 851, at para. 33.

[29]           While summary judgment can operate as a timely, fair, and cost-effective means of adjudicating a civil dispute, it has its limits.  Not all civil disputes are amenable to a final adjudication on the merits by summary judgment.  In certain cases, adjudication exclusively on a written record poses a risk of substantive unfairness.  Great care must be taken to “ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial”: Baywood Homes Partnerships v. Haditaghi, 2014 ONCA 450 (CanLII), 120 O.R. (3d) 438, at para. 44; see also Cook v. Joyce, 2017 ONCA 49 (CanLII), 275 A.C.W.S. (3d) 399, at para. 91.

Highest Court Encourages Alternatives to Trial

Highest Court Encourages Alternatives to Trial

The Supreme Court of Canada released its decision in Hryniak v. Mauldin (2014 S.C.C. 7, [2014] 1 S.C.R. 87) and encouraged alternative solutions to a trial.

In her decision, Karakatsanis, J. called for “a shift in culture” (para. 20). She recognized that the adjudication of civil disputes by way of a full trial has become illusory for many litigants (para. 24). She encouraged litigants and members of the judiciary to consider alternatives to a trial, including motions for summary judgment.

27      Karakatsanis, J. began her analysis of the issue of access to justice by emphasizing that “Our civil justice system is premised upon the values that the process of adjudication must be fair and just. This cannot be compromised.” (See para. 23.)

28      The principles of fairness and justice, the latter in particular, are reflected in Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194. In determining whether there is a genuine issue requiring a trial, a judge hearing a motion for summary judgment is entitled to exercise fact-finding powers “unless it is in the interest of justice for such powers to be exercised only at a trial” (rule 20.04 (2.1)).

29      With respect to the interest of justice, Karakatsanis, J. concluded that, “What is fair and just turns on the nature of the issues, the nature and the strength of the evidence and what is the proportional procedure” (para. 59). She also emphasized consideration of the litigation as a whole:

The “interest of justice” inquiry goes further, and also considers the consequences of the motion in the context of the litigation as a whole. For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice. On the other hand, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost effective approach. (para. 60)

30      The Ontario Court of Appeal has, in a number of recent decisions, emphasized the obligation on a judge hearing a motion for summary judgment “to assess the advisability of the summary judgment process in the context of the litigation as a whole”. (See: Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, at para. 35 and Hamilton (City) v. Thier & Curran Architects Inc., 2015 ONCA 64, at para. 22.)