Adding, Substituting and Removing Parties to an Action

Adding, Substituting and Removing Parties to an Action

Stewart v Stewart 2017 BCSC 1532 also dealt with Rule 6-2 (7) that deals with adding, substituting or removing parties to a court action.

Rule 6-2(7)(a) provides:

(7) At any stage of a proceeding, the court, on application by any person, may, subject to subrules (9) and (10),
(a) order that a person cease to be party if that person is not, or has ceased to be, a proper or necessary party,

66 The plaintiff relies on Bilfinger Berger (Canada) Inc. v. Greater Vancouver Water District, 2014 BCSC 1588. There, a defendant sought to remove a plaintiff as a party on the basis that the plaintiff that was named as the “Joint Venture” was not a legal person in and of itself. Notwithstanding the fact that the other plaintiffs had acknowledged that they were jointly and severally liable for anything for which the Joint Venture might be liable, the court did not accept the defendant’s submission that the Joint Venture itself ought to be removed as being unnecessary with Justice Griffin stating:

a) on an application under Rule 6-2(7)(c), for the addition of a party, all that is required is that the application establish that there is a “possible cause of action”: Terasen Gas Inc. v. TNL Construction Services Ltd., 2011 BCSC 1345at para. 12;

b) under this sub rule there is also no requirement to demonstrate the likelihood that an allegation can be proven. The threshold is a low one: The Owners, Strata Plan LMS 989 v. Port Coquitlam (City), 2003 BCSC 1398at para.10;

c) it may be appropriate to name individuals as defendants under Rule 6-2(7)(b), even if it has been conceded that vicarious liability will attach to another named defendant: Edwards v. British Columbia, 2006 BCSC 710at paras. 13-21;

d) the test for joinder under Rule 6-2(7)(b) will be met where the involvement of the party is material in an evidentiary sense to ensure that all matters in the proceeding may be effectively adjudicated upon: British Columbia v. R.B.O. Architecture Inc., 1994 CarswellBC 1931 (S.C.) at para. 8; and

e) the test for adding or substituting a party is whether a party “ought to be have been joined as a party” or if their participation is “necessary”. A party is “necessary” if their participation is required to effectively adjudicate all matters at issue, whereas a party “ought” to be joined in situations including where it may “be more than mere convenience but less than a necessity”: Kitimat (District) v. British Columbia (Ministry of Energy and Mines), 2006 BCCA 562at paras. 28-29.

Reasonable Cause of Action Must Be Claimed

Reasonable Cause of Action Must Be Claimed

Stewart v Stewart 2017 BCSC 1532 discussed the law relating to the failure to disclose a reasonable cause of action in the notice of claim, which if upheld by the court  can lead to the dismissal of the claim.

52 The legal framework is well known and can be summarized as follows:

(a) the test under Rule 9-5(1)(a) is whether it is “plain and obvious”, assuming the facts plead are true, that the claim discloses no reasonable cause of action; or the claim is “certain to fail”: Hunt v. T & N, P.L.C., [1990] 2 S.C.R. 959; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42at para. 17;

(b) pursuant to Rule 9-5(2), no evidence is admissible on an application under Rule 9-5(1)(a) and reference may only be had to the pleadings (in this case the Amended NOCC) which are assumed to be true: McNaughton v. Baker (1988), 25 B.C.L.R. (2d) 17 (C.A.) at paras. 21-22;

(c) the Rule provides a mechanism for an attack on pleadings on the basis that the action cannot succeed as a matter of law: Drummond v. Moore, 2012 BCSC 496at para.16, citing International Taoist Church of Canada v. Ching Chung Taoist Association of Hong Kong Limited, 2011 BCCA 149at paras. 9-10;

(d) it is appropriate for the court to look behind the allegations that are based on assumptions and speculation, or sweeping allegations and subject them to a skeptical analysis: Young v. Borzoni, 2007 BCCA 16at paras. 30-34;

(e) guidelines to the “plain and obvious” rule include whether:

• there is a question fit to be tried regardless of complexity or novelty;
• the outcome of the claim is beyond a reasonable doubt;
• serious questions of law or questions of general importance are raised, or if facts should be known before rights are decided;
• the pleadings might be amended; and
• there is an element of abuse of process: Owners, Strata Plan LMS 1328 v. Surrey (City of), 2001 BCCA 693at para. 5.

53 The following principles also apply:

(a) if there is some realistic chance that the cause of action could be saved by a future development in the law, the court should allow the action to proceed. The law is not static and unchanging: Moses v. Lower Nicola Indian Band, 2015 BCCA 61at para. 41;

(b) a judge hearing a motion to strike pleadings founded upon a complex question of statutory interpretation is not obliged to come to a conclusion on the interpretation of the provisions in issue. The judge can leave the matter to trial in the exercise of his discretion: British Columbia (Director of Civil Forfeiture) v. Flynn, 2013 BCCA 91at paras. 13 and 15;

(c) any doubt on the plain and obvious test must be resolved in favour of permitting the pleading to stand: Citizens for Foreign Aid Reform Inc. v. Canadian Jewish Congress, [1999] B.C.J. No. 2016 (S.C.) at para. 34; and

(d) “an excellent statement of the test for striking out a claim” is found in Hunt v. Carey Canada Inc., being that “if there is a chance that the plaintiff might succeed, then [he] should not be driven from the judgment seat”: Odhavji Estate v. Woodhouse, 2003 SCC 69at para. 15.

54 In Chingee v. British Columbia, 2017 BCCA 250[Chingee], the Court of Appeal recently considered the approach to an application under Rule 9-5(1)(a) with Justice Harris stating:

[51] Although there is no dispute over the test to be applied in striking pleadings for not disclosing a reasonable cause of action, it is helpful to recall its rationale as explained by the Chief Justice in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42. In brief, the test is designed to weed out claims that have no reasonable prospect of success to ensure that only those claims that have some chance of success go to trial: paras. 17 and 19.

[20] This promotes two goods — efficiency in the conduct of the litigation and correct results. Striking out claims that have no reasonable prospect of success promotes litigation efficiency, reducing time and cost. The litigants can focus on serious claims, without devoting days and sometimes weeks of evidence and argument to claims that are in any event hopeless.

[52] This important gatekeeping tool is to be used with care, so as not to hinder the development of the law. Hence, the court assumes the facts pleaded are true and asks whether there is a reasonable prospect the claim will succeed. It is, however, incumbent on a plaintiff clearly to plead the facts relied on. A court can evaluate the possibility of success only on the firm basis of the pleaded facts: para. 22. It is, I think, also clear that the exercise of evaluating the prospects of success does not reduce to a mechanical exercise of checking whether the material elements of a recognized cause of action have been set out. The exercise must examine whether the pleaded facts underlying the cause of action establish a reasonable prospect of success.

Conflict of Interest: Disqualifying a Lawyer

Disqualifying a Lawyer for Conflict of Interest

Stewart v Stewart 2016 BCSC 2256 dismissed an application to have an acting lawyer disqualified as counsel for having a conflict of interest.

The court set out the criteria for such an application.

The two questions to be asked in determining whether there is a disqualifying conflict of interest are:

(a) Did the lawyer receive confidential information attributable to a solicitor-client relationship relevant to the matter at hand?

(b) Is there is a risk that that information will be used to the prejudice of the client? (MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235 (S.C.C.) [MacDonald Estate]; Manville Canada Inc. v. Ladner Downs, [1993] B.C.J. No. 554 (B.C. C.A.), aff’g (1993), 63 B.C.L.R. (2d) 102 (B.C. C.A.).)

37 As was stated by Justice Bauman (as he then was), in Jackson Estate v. Ritch, 2003 BCSC 1942 (B.C. S.C.) [Jackson Estate] at para. 65, the first question involves two aspects: did the lawyer receive confidential information relevant to the matter at hand, and was the lawyer in a solicitor-client or near solicitor-client relationship with the applicant.

38 The near solicitor-client relationship arises in “circumstances where there has developed a relationship of confidence in the same or a related matter”: Jackson Estate at para. 59.

39 The analysis of whether a near solicitor-client or informal solicitor-client relationship existed involves considering whether the applicant “bared its soul” to the lawyer it seeks to disqualify: Jackson Estate at para. 67 referring to MacDonald Estate.

40 In Brookville Carriers Flatbed GP Inc. v. Blackjack Transport Ltd., 2008 NSCA 22 (N.S. C.A.), Justice Cromwell (as he then was), considered at paras. 50-53 the issue of when retainers are “related”:

50 Whether two retainers are related must be considered in light of the underlying purpose of the inquiry. In the MacDonald Estate analysis, the focus is on protection of the client’s confidential information. In that context, two matters will be sufficiently related to trigger the principle if, as Goudge J.A. put it in Chapters at para. 30, ” . . . it is reasonably possible that the lawyer acquired confidential information pursuant to the first retainer that could be relevant to the current matter.” The issue is not so much whether the subject-matter of the two retainers is the same, but whether confidential information learned in one would be relevant to the other. Ultimately, the “overriding policy” must be “that the reasonably informed person would be satisfied that no use of confidential information would occur” MacDonald Estate, p. 1260.

51 Under the principle relevant here, that concerning acting against a former client in a related matter, the focus is different. As the cases and commentators show, the scope of this duty is very limited absent confidential information being at risk. This broader continuing duty of loyalty to former clients is based on the need to protect and to promote public confidence in the legal profession and the administration of justice. What is of concern is the spectre of a lawyer attacking or undermining in a subsequent retainer the legal work which the lawyer did for the former client or of a lawyer effectively changing sides by taking an adversarial position against a former client with respect to a matter that was central to the previous retainer. Basinview is an example of the former: the new retainer involved the lawyer attacking or attempting to undermine the very legal services provided to the former client. Harris and Chiefs of Ontario are examples of the latter: the new retainer involved attacks on the honesty and integrity of the former client in relation to exactly the same sort of matters as the lawyer acted to defend in the previous retainer. In either type of case, the relationship between the two retainers must be very close so that the lawyer in the new retainer is attacking or undermining the value of the legal work provided to the former client or effectively changing sides in a matter that was central to the previous retainer.

52 It is important, in my view, that this principle not be applied too broadly. One must not lose sight of the important right of parties to retain and instruct the counsel of their choice or of lawyers to earn a living free of undue restriction. Moreover, one must not ignore the possible strategic use of applications to disqualify counsel. As Binnie, J. pointed out in Neil at para. 14, “[i]f a litigant could achieve an undeserved tactical advantage . . . by … using ‘the integrity of the administration of justice’ merely as a flag of convenience, fairness of the process would be undermined.”

53 It is also important that the scope of these duties be as clear as possible. To be avoided is an approach ” . . . on a case-by-case basis through a general balancing of interests, the outcome of which would be difficult to predict in advance.”: Strother at para. 51. This sort of uncertainty intrudes unduly into the rights of parties to retain counsel of choice, nourishes misuse of the principles for tactical purposes and generally undermines rather than reinforces public confidence in the legal profession and the administration of justice.
[Emphasis added.]

41 The applicable standard is that of a reasonably informed person, apprised of the facts: MacDonald Estate at para. 53. In making this determination, there should be a cautious approach to disqualification applications. The court should interfere with a party’s right to representation by counsel only in clear cases: Manville Canada Inc. v. Ladner Downs (1993), 63 B.C.L.R. (2d) 102 (B.C. C.A.) [Manville] at para. 51; Merrick v. Rubinoff, 2013 BCSC 2352 (B.C. S.C.) [Merrick] at para.14.

42 Both this court and the Court of Appeal have provided additional direction on the circumstances in which a disqualification application should succeed:

(a) to demonstrate that the current action is a related matter, there must be more than “a mere assertion of similarity”: LS Entertainment Group Inc. v. Wong, 2000 BCSC 1789 (B.C. S.C.) [LS Entertainment] at para. 53;

(b) “given the drastic nature of the remedy there should be compelling and cogent evidence which provides a sufficient connection between the retainers”: LS Entertainment at para. 54 citing Moffat v. Wetstein (1996), 135 D.L.R. (4th) 298 (Ont. Gen. Div.) at 326;

(c) disqualification ought only to occur where there is evidence of “real or actual mischief”. A “mere perception or appearance of a conflict of interest is not sufficient to find a disqualifying conflict of interest”. Instead, the court must have regard to reality rather than perceptions and appearances: Maedou Consulting Inc. v. 0887455 B.C. Ltd., 2015 BCSC 2009 (B.C. S.C.), para. 43; LS Entertainment at para. 70; Manville (S.C) at paras. 45-49;

(d) even where the MacDonald Estate requirements are met, disqualification is a discretionary remedy that is equitable in nature. Disqualification of the lawyer can only be justified if it prevents the imposition of a greater injustice on the party applying for the disqualification than that suffered by the party whose counsel is disqualified: Manville (S.C.) at para. 51; Merrick at para. 23; and

(f) generally, courts in this province have taken a cautious approach in ordering the removal of counsel contrary to the wishes of the client, thereby acknowledging the right of a litigant to the choice of his or her own counsel: Coutu v. Jorgensen, 2004 BCCA 400 (B.C. C.A.)at para. 31.


Rambling Journal Upheld As NOT a Valid Will

Rambling Journal Upheld As NOT a Valid Will

Re Hadley Estate 2017 BCCA 311 was upheld by the Court of appeal in finding that a rambling journal was not a will that could be “cured” by S 58 WESA.

This was the first appeal court decision on Section 58 WESA.

Section 58 of the WESA

[33] British Columbia was a “strict compliance” jurisdiction prior to passage of the WESA. Under s. 4 of the Wills Act, R.S.B.C. 1996, c. 489, testators were obliged to comply strictly with execution and attestation formalities for creating a will for it to be valid. The same was true for revoking, altering or reviving a will: Wills Act, ss. 14, 17, 18. These formal requirements sometimes led to a will-maker’s testamentary intentions being defeated for no good reason. As a result, the British Columbia Law Institute recommended the introduction of a dispensing power to relieve against the consequences of non-compliance with testamentary formalities as part of a general reform of wills and estate administration law: BCLI, Wills, Estates and Succession: A Modern Legal Framework (BCLI Report No. 45, June 2006) at xiv.

[34] Section 58 of the WESA is the legislative response to the BCLI recommendation. Remedial in nature, it confers a broad discretion on the court to order that a “record or document or writing or marking on a will or document” be fully effective, despite non-compliance with the statutory requirements. Although s. 58 cannot be used to uphold a will that is substantively invalid, it permits the court to cure issues of formal invalidity in prescribed circumstances:

Court order curing deficiencies

58 (1) In this section, “record” includes data that

(a) is recorded or stored electronically,
(b) can be read by a person, and
(c) is capable of reproduction in a visible form.
(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents
(a) the testamentary intentions of a deceased person,
(b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or
(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.
(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made
(a) as the will or part of the will of the deceased person,
(b) as a revocation, alteration or revival of a will of the deceased person, or
(c) as the testamentary intention of the deceased person.

[35] For an order to be granted under s. 58 of the WESA, the court must be satisfied that a document represents the testamentary intentions of the deceased person. However, unlike the curative provisions in some provinces, s. 58 does not require a minimum level of execution or other formality for a testamentary document to be found fully effective. Regardless of its form, if the court grants an order under s. 58(3), the document may be admitted to probate.

[36] As discussed in Estate of Young, s. 58 is very similar to Manitoba’s curative provision and thus the leading appellate authority on its meaning is George v. Daily. George and several other Manitoba authorities are reviewed in Estate of Young, which review need not be repeated. Their import is summarized at paras. 34–37:

[34] As is apparent from the foregoing, a determination of whether to exercise the court’s curative power with respect to a non-compliant document is inevitably and intensely fact-sensitive. Two principal issues for consideration emerge from the post-1995 Manitoba authorities. The first in an obvious threshold issue: is the document authentic? The second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions, as that concept was explained in George.

[35] In George the court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.

[36] The burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establishing their existence in a particular case. Although context specific, these factors may include the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document: Sawatzky at para. 21; Kuszak at para. 7; Martineau at para. 21.

[37] While imperfect or even non-compliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased’s testamentary intention: George at para. 81.

The Material Time

[37] In many cases, as here, the material time for determining testamentary intentions on a s. 58 application is the time when the document in question was created. However, as noted in Estate of Young, depending on the circumstances, the material time may vary on this key issue. For example, after creating a document, a will-maker may, by words or actions, manifest a fixed and final intention that it expresses how his or her property is to be disposed of on death and thus that it operates as a will. In other words, a document may acquire a testamentary character by subsequent and sufficient manifestation of the will-maker’s intention: Bennett et al. v. Toronto General Trusts Corporation, [1958] S.C.R. 392 at 397. Nevertheless, in most cases, the focus of inquiry will be the will-maker’s intention when the document was prepared and executed: see, for example, Sweeney Cunningham Estate v. Sweeney, 2013 NSSC 299 at para. 29; Komonen v. Fong, 2011 NSSC 315 at para. 23.

The Scope of Admissible Extrinsic Evidence

[38] The WESA does not indicate what evidence is admissible on a s. 58 inquiry. Accordingly, the ordinary rules of admissibility apply.

[39] Ordinarily, evidence must be relevant to a live issue and not be subject to exclusion under any other rule of law or policy to be admissible: Sidney N. Lederman, Alan W. Bryant and Michelle K. Fuerst, The Law of Evidence in Canada 4th ed. (Markham: LexisNexis Canada Inc., 2014) at §2.40. Relevance must, therefore, be assessed on a case-by-case basis. Mr. Justice Rothstein affirmed the meaning of “relevance” in R. v. White, 2011 SCC 13:

36 … In order for evidence to satisfy the standard of relevance, it must have “some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence” [citations omitted].

37 … to say that an item of evidence is not relevant; that it is not probative of a live issue; or that it is “equally explained by” or “equally consistent with” either determination of a live issue are three ways of saying the same thing.

[40] Sitting as a court of probate, the court’s task on a s. 58 inquiry is to determine, on a balance of probabilities, whether a non-compliant document embodies the deceased’s testamentary intentions at whatever time is material. The task is inherently challenging because the person best able to speak to these intentions – the deceased – is not available to testify. In addition, by their nature, the sorts of documents being assessed will likely not have been created with legal assistance. Given this context and subject to the ordinary rules of evidence, the court will benefit from learning as much as possible about all that could illuminate the deceased’s state of mind, understanding and intention regarding the document. Accordingly, extrinsic evidence of testamentary intent is admissible on the inquiry: Langseth Estate v. Gardiner (1990), 75 D.L.R. (4th) 25 at 33 (Man. C.A.); Yaremkewich Estate (Re) at para. 32; George. As is apparent from the case authorities, this may well include extrinsic evidence of events that occurred before, when and after the document was created: see, for example, Bennett; George; Estate of Young; Re MacLennan Estate (1986), 22 E.T.R. 22 at 33 (Ont. Surr. Ct.); Caule v. Brophy (1993), 50 E.T.R. 122 at paras. 37–44 (Nfld. S.C.).

The Judge’s Treatment of the Evidence

[41] The judge conducted her s. 58 inquiry in a thorough, careful, transparent manner. She considered the words and form of the 2014 Will in detail, together with the large and varied body of extrinsic evidence of events that occurred before, when and after it was made. The focus of her analysis was Ms. Hadley’s intention when she wrote the 2014 Will, which was the material time for s. 58 purposes. On balance, she concluded that it did not represent a deliberate and final expression of Ms. Hadley’s testamentary intentions, which conclusion, though not inevitable, was reasonably available on the evidence as a whole.

[42] In her reasons, the judge listed or had previously noted virtually all of the factors characterized by the appellants as genuinely probative of the central issue. However, after balancing those factors with others to contrary effect, she simply was not persuaded by their arguments or the validity of their position. I see no error in the manner in which she reached this conclusion or in her interpretation of the evidence and its overall import.

[43] Contrary to the appellants’ submission, the evidence the judge relied upon to support her conclusion was relevant to Ms. Hadley’s testamentary intentions when the 2014 Will was written. While not necessarily dispositive, each item of impugned evidence tended to increase the likelihood that the 2014 Will did not express her final intentions for the disposal of her property on death. For example, although she was not obliged to leave bequests to her nieces, she had previously done so in the 2008 Will and an explanation for the change and some form of express revocation might reasonably have been expected, but both were absent: see McNeil v. Snidor Estate, 2008 MBQB 187 at paras. 21, 23. As a matter of logic and human experience, their absence tended to make it more likely that the 2014 Will did not express Ms. Hadley’s final intentions than it would have been if there was evidence of either or both.

Independent Legal Advice Necessary

Independent Legal Advice Necessary

Bertolo v Bank of Montreal 1986 CarswellOnt 801, a decision of the Ontario Court of Appeal was one the earlier cases in Canada to support the legal proposition that independent legal advice(ILA) must be present, if in this situation, a bank is to rely upon suing a guarantor who did not receive same.

The Plaintiff’s son sought a loan from bank and the bank requested its solicitor to arrange for plaintiff, who was providing security for loan, to have independent legal advice.

The solicitor however arranged for the elderly plaintiff to consult with partner in same law firm.

The law partner provided the bank with letter confirming independent legal advice.

The son’s business failed and the bank demanded repayment of loan.

The elderly plaintiff sued and succeeded in having the promissory note declared invalid both at trial and on appeal.

The Courts held that the plaintiff received no independent legal advice.

Where plaintiff’s son and the bank possessed a mutual interest in completing the transaction, the solicitor acting on their behalf and the members of the firm are under a duty to disclose that interest to the plaintiff.

A lawyer, whether a partner or associate of a firm, is not to be viewed as an entity separate and apart from the firm or the member acting in a particular matter for the purpose of determining whether or not he or she is in a conflict of interest position. Where the member acting in the matter would be in a conflict of interest position if he were to advise another client, so also would his partner or associate.

The plaintiff, an elderly widow, possessed little formal education, was not fluent in English language, lacked business experience, and was unaware of terms of loan or restaurant purchase.

The plaintiff became the principal debtor by executing a promissory note secured by a mortgage on her home.

The plaintiff received no advice concerning legal obligations and risks to her property. The plaintiff was at a disadvantage in dealings with the bank and the latter was not entitled to recover where knowing or ought to have known that debtor not receiving independent legal advice.


The Threshold for Establishing Duress

Milionis v Rivas 2017 ONSC 5001 discussed the law of duress when an application was brought to seek a declaration that a $400,000 mortgage was invalid as it was purportedly signed under duress. The court disagreed as it is difficult to set aside an agreement based on duress.

The Court stated:

Given that the law does not lightly set aside an agreement, the threshold for establishing duress is high. In Barton v. Armstrong, [1976] A.C. 104, at 121 (J.C.P.C.), Lord Wilberforce (dissenting in the result) stated:

The action is one to set aside an apparently complete and valid agreement on the ground of duress. The basis of the plaintiff’s claim is, thus, that though there was apparent consent there was no true consent to the agreement; that the agreement was not voluntary. This involves consideration of what the law regards as voluntary, or its opposite; for in life, including the life of commerce and finance, many acts are done under pressure, sometimes overwhelming pressure, so that one can say that the actor had no choice but to act. Absence of choice in this sense does not negate consent in law: for this the pressure must be one of a kind which the law does not regard as legitimate. Thus, out of the various means by which consent may be obtained — advice, persuasion, influence, inducement, representation, commercial pressure — the law has come to select some which it will not accept as a reason for voluntary action: fraud, abuse of relation of confidence, undue influence, duress or coercion. In this the law, under the influence of equity, has developed from the old common law conception of duress — threat to life and limb — and it has arrived at the modern generalisation expressed by Holmes J. — ” subjected to an improper motive for action ” (Fairbanks v. Snow 13 Northeastern Reporter 596, 598). [Emphasis added]

65 Duress requires proof of pressure that:

(1) the law regards as illegitimate, such as threat of any form of illegal action; and

(2) is applied to such a degree as to amount to a “coercion of the will” of the party relying on this defence.

The following considerations apply in determining whether there is a “coercion of the will”:

(1) did the party relying on this defence protest?

(2) was there an alternative course open to him or her? (3) was he or she was independently advised? (4) after entering the agreement did he or she take steps to avoid the agreement after entering it? See A.A. v. A.G, 2017 ONCA 243, paras. 26-27; Gordon v. Roebuck (1992), 9 O.R. (3d) 1 (C.A.), at para. 3.

66 An agreement obtained through duress is voidable at the instance of the party subjected to the duress unless by another agreement or through conduct, either express or implied, he affirms the impugned agreement at a time when he is no longer the victim of duress: Stott v. Merit Investment Corporation (1998), 63 O.R. (2d) 545 (C.A.), at para. 49.

The Proportionality Principle

The Proportionality Principle

Campoli Electric Ltd v Georgian Clairlea Inc 2017 ONSC 4898 commented on the proportionality principle that is emerging in litigation- the quest for a cultural change to best promote the most expeditious and least expensive determination of every proceeding on its merits. attempts to utilize the mediation process as much as possible as it is fast, inexpensive and results in settlements in over %90 of the cases that utilize it.

Abrams v. Abrams, 2010 ONSC 2703:

“Proportionality signals that the old ways of litigating must give way to new ways which better achieve the general principle of securing the ‘just, most expeditious and least expensive determination of every proceeding on its merits.’ ”

In Hryniak v. Mauldin, 2014 SCC 7, Justice Karakatsanis was discussing the test for summary judgment, but what she had to say is thematically applicable to lifting these stays. At paragraphs 27 and 28 of her judgment at the Supreme Court of Canada, she stated:

There is growing support for alternative adjudication of disputes and a developing consensus that the traditional balance struck by extensive pre-trial processes and the conventional trial no longer reflects the modern reality and needs to be re-adjusted. A proper balance requires simplified and proportionate procedures for adjudication, and impacts the role of counsel and judges. This balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial.

This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible – proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure. [my emphasis]

Life Insurance Denied For Criminal Activity

Life Insurance Denied For Criminal Activity

Velentyne Estate v The Canada Life  2017 BCSC 1444 upheld the insurer’s exclusion clause that mortgage insurance would not be payable upon a death if the death resulted as a result of criminal activity. The Court found that the deceased was a drug dealer who likely died as a result of his criminal activity, despite his body never having been found.

The Court was satisfied based on the wording of the clause that I do not have to find that Mr. Valentyne was actually selling drugs at the time of his death; I need only be satisfied on a balance of probabilities that his death was a result of his involvement in criminal activity.

[14] The distinction between the two types of triggering events has been described as follows in David Norwood and John P. Weir, Norwood on Life Insurance Law in Canada, 3d ed. (Toronto: Carswell, 2002) at page 462:

Causal connection would not seem to be required where the provision excludes death while committing or attempting to commit a criminal offence, but it would appear to be necessary where the exclusion is for death resulting from committing or attempting to commit such an offence. If a bank robber rushes onto a roadway in the course of making a get-away and is knocked down by a car, the causal connection would be established, but if he is casually strolling on the sidewalk away from the scene of the crime, and a brick falls on the robber’s head, it would seem clear that the claims for the accidental death insurance benefit may still be made.

[15] The phrase “a result of” therefore imports some type of causal connection although the phrase is broader than a clause requiring that death be “caused by” a stated activity: Raywalt Construction Co. Ltd. v. Allstate Insurance Company of Canada, 2010 ABCA 320 at paras. 11 and 14.

Converting a Petition to an Action

Converting a Petition to an Action

Kent v Kent 2017 BCSC 1392 discussed converting a Petition to an Action when a court action has been commenced by a Petition and becomes mired in the litigation process, usually due to disputed facts, and requires the petition process to be converted to an action so that examinations for discovery, a trial, discovery of documents and such can be provided for as in an action commenced by a Notice of Claim. Petitions are generally sued when the facts and credibility will not be disputed and the case is argued by affidavits.

36 Rule 22-1(7)(d) of the Supreme Court Civil Rules empowers a court hearing a chambers proceeding to refer a matter to the trial list. Specifically, Rules 22-1(4) and 22-1(7)(d) provide as follows:

Rule 22-1 Chambers Proceedings
. . .
Evidence on an application

(4) On a chambers proceeding, evidence must be given by affidavit, but the court may
(a) order the attendance for cross-examination of the person who swore or affirmed the affidavit, either before the court or before another person as the court directs,
(b) order the examination of a party or witness, either before the court or before another person as the court directs,
(c) give directions required for the discovery, inspection or production of a document or copy of that document,
(d) order an inquiry, assessment or accounting under Rule 18-1, and
(e) receive other forms of evidence.
. . .

Power of the Court

(7) Without limiting subrule (4), on the hearing of a chambers proceeding, the court may
. . .
(d) order a trial of the chambers proceeding, either generally or on an issue, and order pleadings to be filed and, in that event, give directions for the conduct of the trial and of pre-trial proceedings and for the disposition of the chambers proceeding.

37 In British Columbia (Milk Marketing Board) v. Saputo Products Canada G.P., 2017 BCCA 247 and Robertson v. Dhillon, 2015 BCCA 469, the Court of Appeal recently clarified the applicable test for conversion into an action of a proceeding commenced by petition. The multifactorial test heretofore applied by the trial court of this Province has been based on Haagsman v. British Columbia (Minister of Forests) (1998), 64 B.C.L.R. (3d) 180 (S.C.), Terasen Gas v. Surrey (City), 2009 BCSC 627, and Boffo Developments (Jewel 2) Ltd. v. Pinnacle International (Wilson) Plaza Inc., 2009 BCSC 1701. In B.C. (Milk Marketing Board), the Court found that the framework adopted in the Boffo line of cases is similar to the test applied when determining whether a matter is suitable for summary trial under Rule 9-7. However, as held in Robertson and B.C. (Milk Marketing Board), the test for determining whether a matter should be converted into an action is not similar to the one under Rule 9-7. Rather, it is akin to an application for summary judgment under Rule 9-6 (i.e., whether, on all the relevant facts and applicable law, there is a bona fide triable issue): Robertson at paras. 55-56; and B.C. (Milk Marketing Board) at paras. 44, 46.

38 The Court of Appeal has long held that proceedings brought by petition should be referred to the trial list when there are disputes of fact or law, unless the party requesting the trial is bound to lose: B.C. (Milk Marketing Board) at para. 43.

39 The proper test, as explained in Robertson at paras. 55-56 and affirmed in B.C. (Milk Marketing Board) at para. 44, is as follows:

[44] In Robertson, the Court set out the test to determine whether a petition should be converted to a trial:

[55] On the hearing of a petition, a judge must be satisfied that there is no dispute as to the facts or law which raises a reasonable doubt or which suggests that there is a defence that deserves to be tried: Douglas Lake Cattle Co. v. Smith (1991), 54 B.C.L.R. (2d) 52 (C.A.) at 59. If such a dispute exists, the judge may refer the matter to the trial list, pursuant to R. 22-1(7) (former R. 52(11)(d)).

[56] The test is not that used to determine a summary trial. Rather it is akin to that on an application for summary judgment under R. 9-6. Mr. Justice Lambert summarized the task in Montroyal Estates Ltd. v. D.J.C.A. Investments Ltd. (1984), 55 B.C.L.R. 137 (C.A.) at 138-39:

We were referred by counsel for T& A Holdings Ltd. to the judgment of Esson J. (as he then was) in Progressive Const. Ltd. v. Newton, 25 B.C.L.R. 330, [1981] 2 W.W.R. 741, 117 D.L.R. (3d) 591 (S.C.), and particularly at p. 334. There Esson J. summarizes, in my opinion, accurately, the law in relation to establishing a defence on an application for summary judgment in these words [pp. 334-35]:

The cases do not establish an invariable rule as to what steps must be taken to resist a R. 18 application for summary judgment. On all such applications the issue is whether, on the relevant facts and applicable law, there is a bona fide triable issue. The onus of establishing that there is not such an issue rests upon the applicant, and must be carried to the point of making it “manifestly clear”, which I take to mean much the same as beyond a reasonable doubt. If the judge hearing the application is left in doubt as to whether there is a triable issue, the application should be dismissed.

In essence, if the defendant is bound to lose, the application should be granted, but if he is not bound to lose, then the application should be dismissed.
[Emphasis added in B.C. (Milk Marketing Board)]

40 Additionally, the Court held that the suggestion in Boffo that the mere existence of a bona fide triable issue is not in itself sufficient to warrant conversion to the trial list is contrary to the test established by the Court of Appeal: B.C. (Milk Marketing Board) at para. 46. Further, at paras. 47-48, the Court in B.C. (Milk Marketing Board) stated the following:

[47] I would note the fact that a matter is converted to an action does not necessarily mean that a full trial will be required. It still remains open to the parties to bring a summary trial application under Rule 9-7.

[48] Given the authorities in this Court, it is not open to this division to adopt the Boffo approach. A five-justice division would be necessary as it would require overruling previous decisions of this Court: Bell v. Cessna Aircraft Co., (1983) 46 B.C.L.R. 145 (C.A.). I should also note that although Haagsman, Terasen and Boffo all suggest a different test, in each of those cases the petition was converted into an action.

41 In B.C. (Milk Marketing Board) at paras. 49-52, the Court found that the trial judge had erred in principle in resolving the matter by applying the Boffo criteria. The trial judge failed to consider both whether the appellant, Saputo, raised a bona fide triable issue, and what the implications of such a determination would be. Moreover, he did not find that Saputo was bound to lose. In the result, the Court allowed the appeal and ordered that the petition be converted into an action. In Robertson at para. 60, the Court similarly found the chambers judge erred by failing to indicate his reasoning with respect to whether he was satisfied of the absence of a bona fide triable issue and whether he gave consideration to any substantive defences.

42 While Ms. Kent challenged the suitability of the Petition under Rules 2-1(d) and 2-1(g)(i) of the Supreme Court Civil Rules, I am satisfied that the Petition was properly brought. The issue is not so much whether the particular property is trust property, but whether the Trust Agreement should be enforced; and if it is, whether Ms. Kent is entitled to some compensation: McDonald v. Lau, 2016 BCSC 1651at para. 56. Consequently, the real question for determination is whether the Petition should be converted into an action pursuant to Rule 22-1(7)(d).

43 In light of the recent guidance from the Court of Appeal, I will apply the test enunciated in Robertson at paras. 55-56, as affirmed in B.C. (Milk Marketing Board) at para. 44. That test involves the petitioner satisfying this Court that there is no dispute as to the facts or law which raises a reasonable doubt or which suggests that there is a defence that deserves to be tried. The onus of establishing that there is not such an issue rests on the applicant, and must be carried to the point of making it “manifestly clear”, a standard similar to proof beyond a reasonable doubt. If the judge hearing the application is left in doubt as to whether there is a triable issue, the application should be dismissed. In essence, if the respondent is bound to lose, the application should be granted; but if the respondent is not bound to lose, the application should be dismissed.



Sato v Sato 2017 BCSC 1394 ( upheld at 2018 BCCA 287) discusses in detail the legal issue of domicile. The issue was whether the deceased was domiciled in British Columbia at the time of his marriage to the plaintiff. If so his  2011 Will was revoked by operation of law. If not, the parties agree that the deceased’s domicile was Luxembourg and under  the laws of Luxembourg, the 2011 Will would not be revoked by the plaintiff’s marriage to the deceased. (The facts took place before WESA was introduced on March 31,2014 when marriage still revoked a will)

The plaintiff, Makiko Sato, is the widow of the deceased, Hiroyuki Rex Sato, commonly called Rex.   The defendant, Helen  Sato, is the sister of the deceased and is the executrix of the deceased’s will dated May 19, 2011 (the 2011 Will).

The plaintiff and the deceased were married in April 2013.    The deceased ceased to be a resident of Canada in 1999. From 2009 until his death on March 7, 2015, he was a resident of Luxembourg.

The Court found that the deceased was domiciled in British Columbia when he married the plaintiff in April 2013. As a result, his 2011 Will was revoked. The deceased was found to have had the intention to make British Columbia his domicile.

One of the determining facts was that the deceased indicated to CCRA that he intended to retire in Canada. The defendant had the onus of proving his domicile was in Luxembourg and failed to do so.


[8]            In Scott v. Vanston, 2016 SKCA 75, the Saskatchewan Court of Appeal reviewed the law of domicile, and of particular interest in the case at bar, the principles involving domicile of choice and abandonment. Justice Herauf, for the Court, stated:

Domicile of choice

[52]      [Wadsworth v. McCurdy (1886), 12 S.C.R.466] is the earliest decision of the Supreme Court on the law of domicile in Canada. In Wadsworth, all five judges authored opinions but Ritchie C.J. largely sets out the opinion of the three-two majority. Chief Justice Ritchie begins by stating that the law of domicile is well-settled in Canada, having previously been established by the courts of England. He then cites numerous authorities for the principles that form the law of domicile.

[53]      In regard to acquiring a domicile of choice, Ritchie C.J. sets out the law at 475-76:

What will constitute a change of domicile has been frequently enunciated in the highest courts. Thus in Lord v. Colvin the Vice Chancellor:

I would venture to suggest that the definition of an acquired domicile might stand thus: That place is properly the domicile of a person in which he has voluntarily fixed the habitation of himself and his family, not for a mere special and temporary purpose, but with a present intention of making it his permanent home, unless and until something (which is unexpected or the happening of which is uncertain) shall occur to induce him to adopt some other permanent home.

I am disposed to think that the definition thus modified would be found to be in accordance with most, if not all, of the leading decisions on the subject of acquired domicile.

But whatever may be the most correct and proper terms in which to frame a definition of domicile, this at least is clear and beyond controversy, that to constitute an acquired domicile two things are requisite, act and intention, factum et animus. To use the language of an eminent jurist, to whose admirable writings I have before referred, two things must concur to constitute domicile (of course he is speaking of acquired domicile); first, residence; and secondly, the intention of making it the home of the party There must be the fact and the intent; for, as Pothier has truly observed, a person cannot establish a domicile in a place, except it be animo et facto.

Sir J. Romilly, the Master of the Rolls:

It is quite settled that two things are necessary to constitute a change of domicile; first, the factum of the change of residence; and next, the animus manendi. In other words, in order to effect a change of domicile, the person must have settled in a residence out of his former domicile, whether it be the domicile of origin or an acquired domicile; and he must also have the intention of making that residence his permanent home.

[54]      Therefore, based on the preceding analysis, a person establishes a domicile of choice by voluntarily choosing to reside in a location, not temporarily or for some special purpose, with the intention of making it his permanent home unless and until something unexpected or uncertain induces him to adopt some other permanent home.

[55]      This same principle has been cited and followed in numerous subsequent cases. In Trottier, Duff C.J. states at 207:

The principles which ought, I think, to be kept steadily in view and rigorously applied in this case are, first, that a domicile of origin cannot be lost until a new domicile has been acquired; that the process of the acquisition of a new domicile involves two factors, the acquisition of residence in fact in a new place and the intention of permanently settling there: of remaining there, that is to say, as Lord Cairns says, for the rest of his natural life, in the sense of making that place his principal residence indefinitely.

[56]      In Osvath, which is a relatively brief decision, the central principle cited is that quoted by Ritchie C.J. in Wadsworth from Lord v Colvin (1859), 62 ER 141. Further, this Court previously applied the same principle in Gunn v Gunn (1956), 2 DLR (2d) 351 at 353, and quoted Duff C.J.’s formulation of it from Trottier at 207.

[57] Most recently, the Alberta Court of Appeal summarized the law in relation to domicile of choice in Foote Estate, Re, 2011 ABCA 1 at paras 20-22, [2011] 6 WWR 453 [Foote Estate CA]:

[20]      One’s domicile of origin can be displaced by a domicile of choice, a place where a person has chosen to live. The classic description of domicile of choice is found in Udny v. Udny (1869),1866-69 L.R. 1 Sc. 441 (U.K. H.L.):

Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. … There must be a residence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness; and it must be residence fixed not for a limited period or particular purpose, but general and indefinite in its future contemplation.

[21]      Of particular relevance to this appeal is the requirement that the choice to change domicile must be voluntary, not dictated by business, debts or health. Some authorities speak of one’s domicile of choice as a place where one intends to end one’s days. That language is unhelpful where, as here, a person with a fatal and fast-moving illness makes a trip shortly before his death for treatment. Determining an intention to change domiciles in such a situation is not a simple matter of saying the deceased intended to live out his days in the new location. It could not, in most cases, be described as a voluntary move.

[22]      The acquisition of a domicile of choice involves two factors: the acquisition of residence in fact in a new place and the intention of permanently settling there … in the sense of making that place [one’s] principal residence indefinitely: Trottier v. Rajotte, [1940] S.C.R. 203 (S.C.C.), at 206, [1940] 1 D.L.R. 433 (S.C.C.) [emphasis added].

[58]      The onus of proving that a person has acquired a domicile of choice is on the party alleging the acquisition (see Wadsworth at 470-71).

[59]      Regarding permanency versus indefiniteness in relation to intention, it was noted in Foote Estate QB [Re Foote Estate, 2009 ABQB 654] that indefinite has been interpreted in a number of cases and that different case law has applied different standards but that ultimately it is a factual inquiry (para 46). The high standard that has been applied is that of living out one’s days in a jurisdiction (para 47). While the lower standard that has been applied is that of no fixed intention of leaving (para 48). I would settle any controversy relating to the proper standard to be applied in determining intention to acquire a domicile of choice by endorsing the test set out in para 22 of Foote Estate CA, namely, ¦ the intention of permanently settling there … in the sense of making that place [one’s] principal residence indefinitely.


[60] Just as a person can acquire a domicile of choice, he or she may also abandon a domicile of choice. The principle of abandonment is not fully addressed in any of the three Supreme Court decisions on domicile except in reference to the abandonment of a domicile of origin in favour of a domicile of choice. The principle is, however, considered in Foote Estate CA and Foote Estate QB. The Court in Foote Estate CA sets out the principle of abandonment:

[25]      The following rule is set out in Dicey, Morris and Collins on The Conflict of Laws, 14th ed. (London: Sweet & Maxwell, 2006) at 151:

Rule 13 – (1) A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently or indefinitely, and not otherwise.

[26]      The test for loss of domicile of choice is two-fold: it requires an intention to cease to reside in a place coupled with acts that end one’s residence. It is described in Dicey as follows:

A domicile of choice is lost when both the residence and the intention which must exist for its acquisition are given up. It is not lost merely by giving up the residence nor merely by giving up the intention. [Emphasis added]

[27]      Castel & Walker, in their Canadian Conflict of Laws at s. 4.8, 6th ed. (Markham, Ont.: LexisNexis Butterworths, 2005), describe the process of abandonment of a domicile of choice as the converse of its acquisition. They also note the dual nature of the test. To paraphrase, for Mr. Foote to have abandoned his domicile of choice on Norfolk Island, it would be necessary for him to cease to reside there and also to cease to have the intention to return to Norfolk Island as his permanent home. Absence without the intention of abandonment is of no effect, nor is intention without any actual change of residence: Castel & Walker at s. 4.8.

[61]      In Foote Estate QB, Graesser J. cites other authorities to support the above proposition:

[51]      It is certainly possible to abandon a domicile of choice or origin in favour of a new domicile of choice, but such change involves more than a change in intention and requires some act of abandonment. That requirement to take some tangible step to abandon was identified in Fedeluk v. Fedeluk as relating to the dual prerequisites to adopt a new domicile of choice:

[12]      It is clear that the abandonment of a domicile of choice requires, as does its acquisition, the combination of factum and intention: See Jones v. Kline, [1938] 3 W.W.R. 65, at 75 (Alta.) and other cases cited at p. 409 of Power on Divorce, 2nd ed. The intention to abandon is insufficient in itself to effect the abandonment so long as the person remains within the domicile or territory: See Zanelli v. Zanelli (1948) 64 TLR 556, 92 Sol J 646. [Emphasis added.]

[53]      Howson J. in Jones v. Kline (Jones), at para. 16, stated the rule as:

… in order to lose the domicile of choice and revive the domicile of origin, it is not sufficient for the person to form the intention of leaving the domicile of choice, he must actually leave it with the intention of leaving it permanently. [Emphasis added.]

[62] As noted above, a person need not acquire a new domicile of choice for a prior domicile of choice to have been abandoned. Rather, a person may abandon a domicile of choice not having any other domicile but for their domicile of origin (see Foote Estate QB at para 77). Important, as well, is the point that a person need not completely cease to reside in a location to abandon it as his or her domicile (see Foote Estate CA at para 33).

[9]            In Osvath-Latkoczy v. Osvath-Latkoczy, [1959] S.C.R. 751, the Supreme Court of Canada considered whether the appellant’s domicile of choice was Ontario. Justice Judson writing for the Court stated at 753:

The principle to be applied is that stated in Lord v. Colvin, which was adopted in Wadsworth v. McCord, and followed in Gunn v. Gunn:

That place is properly the domicile of a person in which he has voluntarily fixed the habitation of himself and his family, not for a mere special and temporary purpose, but with a present intention of making it his permanent home, unless and until something (which is unexpected or the happening of which is uncertain) shall occur to induce him to adopt [some] other permanent home.

Lex Fori

[10]        Domicile is determined in the jurisdiction in which the issue is raised the lex fori: Re Annesley, [1926] Ch 692 at 705.

[11]        In the case at bar, the parties agree that the matter of the deceased domicile should be determined by the Supreme Court of British Columbia.


[12]        The party who asserts a new domicile of choice has the onus of proving the change in domicile: The Lauderdale Peerage (1885), 10 A.C. 692 at 739.

[13]        The onus of proof is that of a balance of probabilities: F.H. v. McDougall, 2008 SCC 53. As the Court in F.H. stated at para. 46:.. evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test.

Only One Domicile at any Particular Time

[14]        A person always has a domicile but never has more than one domicile at any particular time: Wadsworth v. McCurdy (1886), 12 S.C.R. 466 at 468; Udny v. Udny (1869), L.R. 1 Sc. & Div. 441 (H.L.) at 448.

Matrimonial Domicile

[15]        For the deceased’s 2011 Will to have been revoked by his marriage to the plaintiff in April 2013, he must have been domiciled in British Columbia as of that time: Allison v. Allison (1998), 56 B.C.L.R. (3d) 1 (S.C.).