Summary of Special Costs

Summary of Special Costs Awarded by the Court

When one litigant is ordered to pay all or most of the other  litigants legal fees it is an award of special costs, and Siemens v Howard 2017 BCSC 1193 is a good summary of when the court will award special costs.

The single standard for the awarding of special costs is that the conduct in question properly be categorized as “reprehensible.” The basic principles are conveniently summarized by N. Smith J. in Gill v. Bassi 2016 BCSC 754, at paras. 9-16:

[9] An award of special costs is intended to chastise a party for reprehensible, scandalous or outrageous conduct, either in the circumstances giving rise to the cause of action or in the course of the litigation: Bradshaw v. Stenner 2012 BCSC 237at para. 9, leave to appeal ref’d 2012 BCCA 481.

. . .

[11] The circumstances under which special costs may be ordered were summarized in Mayer v. Osborne Contracting Ltd., 2011 BCSC 914 at para. 11:

(a) where a party pursues a meritless claim and is reckless with regard to the truth;

(b) where a party makes improper allegations of fraud, conspiracy, fraudulent misrepresentation, or breach of fiduciary duty;

(c) where a party has displayed “reckless indifference” by not recognizing early on that its claim was manifestly deficient;

(d) where a party made the resolution of an issue far more difficult than it should have been;

(e) where a party who is in a financially superior position to the other brings proceedings, not with the reasonable expectation of a favourable outcome, but in the absence of merit in order to impose a financial burden on the opposing party;

(f) where a party presents a case so weak that it is bound to fail, and continues to pursue its meritless claim after it is drawn to its attention that the claim is without merit;

(g) where a party brings a proceeding for an improper motive;

(h) where a party maintains unfounded allegations of fraud or dishonesty; and

(i) where a party pursues claims frivolously or without foundation.

. . .

[14] . . . Special costs are not awarded based on the acceptance or rejection of testimony. “If it were otherwise, instead of being an extraordinary measure, special costs could be imposed whenever credibility was in issue”: Grewal v. Sandhu, 2012 BCCA 26at para. 107, leave to appeal ref’d 2012 CarswellBC 1815 (S.C.C.).

[15] Even if one assumes the plaintiffs’ evidence was dishonest as opposed to merely unreliable  and I made no explicit finding on that point dishonest testimony alone is not sufficient to warrant an order for special costs. There must be something more egregious in the impugned conduct for it to be considered reprehensible: Schwabe Estate v. Lisinski, 2005 BCSC 1284at para. 26; Mayer, at para. 13; 380876 British Columbia Ltd. v. Ron Perrick Law Corp., 2009 BCSC 1209at para. 25.

[16] There is a difference between a party who deliberately attempts to mislead the court and a party who fails to prove a case on a balance of probabilities because his or her evidence is not accepted . . .

9      The court must exercise restraint in awarding specials costs, and the party seeking special costs must demonstrate exceptional circumstances to justify an order for special costs: see Westsea Construction Ltd. v. 0759553 B.C. Ltd., 2013 BCSC 1352, at para. 73.

Unjust Enrichment Disallowed For Family Workers

Unjust Enrichment Disallowed For Family Workers

The BC Appeal Court in McDonald v McDonald 2017 BCCA 255 disallowed an award for unjust enrichment for various children who worked on the family farm for years without compensation, finding that “chores” amounted to a juristic reason to refuse a claim for unjust enrichment. The appeal Court in essence said that there must be “exploitation” before there can be a valid claim for unpaid child labour in a family endeavor.

During their childhood and teen years, the plaintiffs performed unpaid work on their parents dairy farm. They continued to work on the farm (on salary) for parts of their early adulthood. Eventually, the parents transferred the farm assets into a corporation. Many years after the plaintiffs ceased to work on the farm, they learned that their parents transferred the shares in the corporation to their brother, except for redeemable preferred shares representing about 10% of the farm’s value. Their own inheritances were to be limited to those preferred shares.

The plaintiffs commenced an action for unjust enrichment in respect of work they had performed on the farm. The judge accepted that they had valid claims in unjust enrichment, but only for the unpaid work they performed as teenagers. He awarded each of the plaintiffs $350,000, less any amount they received in preferred shares. The defendants appealed.

Held: appeal allowed. The work performed by the plaintiffs was in the nature of chores. As a matter of public policy, chores performed by children in a family setting do not, absent indicia of exploitation, attract a right to compensation under the doctrine of unjust enrichment. In any event, the judge’s assessment of damages was the product of palpable and overriding error. Properly assessed, the transfer of the preferred shares would fully compensate the plaintiffs even if the judge’s unjust enrichment analysis were sustainable.

Analysis

[64]         In Garland v. Consumers Gas Co., 2004 SCC 25, Iacobucci J. summarized the basic requirements for an unjust enrichment claim as follows:

[30]      As a general matter, the test for unjust enrichment is well established in Canada. The cause of action has three elements: (1) an enrichment of the defendant; (2) a corresponding deprivation of the plaintiff; and (3) an absence of juristic reason for the enrichment (Pettkus v. Becker, [1980] 2 S.C.R. 834, at p. 848; Peel (Regional Municipality) v. Canada, [1992] 3 S.C.R. 762, at p. 784).

[65]         The parties accept the judge’s finding that the farm work performed by the plaintiffs during their teenage years conferred a benefit on the defendants. They also accept that the work constituted a corresponding deprivation to the plaintiffs. The issue with respect to unjust enrichment is whether there is a juristic reason for the enrichment.

[66]         The nature of the an absence of juristic reason test was also discussed in Garland:

[44]      [T]he proper approach to the juristic reason analysis is in two parts. First, the plaintiff must show that no juristic reason from an established category exists to deny recovery. By closing the list of categories that the plaintiff must canvass in order to show an absence of juristic reason, [the] objection to the Canadian formulation of the test that it required proof of a negative is answered. The established categories that can constitute juristic reasons include a contract (Pettkus, supra), a disposition of law (Pettkus, supra), a donative intent (Peter [Peter v. Beblow, [1993] 1 S.C.R. 980]), and other valid common law, equitable or statutory obligations (Peter, supra). If there is no juristic reason from an established category, then the plaintiff has made out a prima facie case under the juristic reason component of the analysis.

[45]      The prima facie case is rebuttable, however, where the defendant can show that there is another reason to deny recovery. As a result, there is a de facto burden of proof placed on the defendant to show the reason why the enrichment should be retained. This stage of the analysis thus provides for a category of residual defence in which courts can look to all of the circumstances of the transaction in order to determine whether there is another reason to deny recovery.

[46]      As part of the defendant’s attempt to rebut, courts should have regard to two factors: the reasonable expectations of the parties, and public policy considerations. It may be that when these factors are considered, the court will find that a new category of juristic reason is established. In other cases, a consideration of these factors will suggest that there was a juristic reason in the particular circumstances of a case which does not give rise to a new category of juristic reason that should be applied in other factual circumstances. In a third group of cases, a consideration of these factors will yield a determination that there was no juristic reason for the enrichment. In the latter cases, recovery should be allowed. The point here is that this area is an evolving one and that further cases will add additional refinements and developments.

[67]         It is common ground that none of the established categories of juristic reason for enrichment are present in this case: the plaintiffs did not have contracts of employment with the defendants during their teen years, nor did they manifest an intent that their work on the farm constitute a gift. Their work was not performed pursuant to a statutory or equitable obligation.

[68]         The defendants contend, however, that as a matter of public policy, work done by a teenager for a family enterprise should not be accorded a remedy in unjust enrichment absent extraordinary circumstances. In their factum they express the policy as follows:

Virtually all children, particularly as they get older, are expected to contribute to the family enterprise in one fashion or another, whether it is doing chores inside the house, painting a fence, mowing the lawn or helping in the family business. It seems likely that much of the work done by teenagers will provide some economic benefit to their parents. In exchange, however, their parents provide them with the necessities of life such as food and shelter and provide them with the opportunity to learn life skills which they can take with them into adulthood. To afford teenagers the right to sue their parents for work done as teenagers simply because it is of benefit to the parents sets a dangerous precedent and ignores the substantial benefits which teenagers receive from their parents at that age.

[69]         The plaintiffs dispute the idea that there is any public policy reason why teenaged children doing work for their parents should be excluded from unjust enrichment remedies. Among other things, they point out that children (including teenaged children) are a vulnerable group. Where parents exploit their children for economic gain, it is important that the children have a civil remedy.

[70]         Despite their contrasting arguments, there is, in fact, a great deal of common ground between the parties. The plaintiffs accept that not every chore done by a teenager (even if it has some economic value to the parents) will found a claim in unjust enrichment. At some level, it is a normal societal expectation that children (particularly older children) will assume responsibility for household tasks. They do not have a legal entitlement to be paid every time they perform routine chores.

[71]         On the other hand, the defendants accept that in extraordinary circumstances, a teenager will be entitled to compensation. At some point, parental demands on teenagers to perform unpaid chores will exceed the level of societal tolerance and be properly characterized as exploitative. It is obvious that there is no public policy in favour of allowing parents to engage in the economic exploitation of their children.

[72]         The question, then, is not whether public policy and reasonable societal expectations can provide a juristic reason to deny an unjust enrichment to a teenager in respect of unpaid chores. Clearly they can. Rather, the question is the articulation of the public policy. How far does the juristic reason extend?

[73]         The parties have cited a few cases in which courts have denied unjust enrichment claims for work done by children for their parents: Strudwick v. Strudwick Estate (1996), 21 R.F.L.(4th) 185 (B.C.S.C.); Kreeft v. Kreeft (2001), 39 ETR (2d) 233 (B.C.S.C.); Oliver v. Blais (November 21, 2014), Winnipeg PR10-01-84749, (Man. Q.B. Gen. Div.), affd 2015 MBCA 99, leave to appeal refd [2015] S.C.C.A. No. 515. They also cite Antrobus v. Antrobus, 2009 BCSC 1341, rev’d on quantum only, 2010 BCCA 356, wherein an unjust enrichment claim that included compensation for unpaid labour during the plaintiff’s teenage years succeeded.

[74]         While these cases have limited precedential value, all recognize that, as a general rule, the fact that work giving rise to an enrichment, was performed by a child or teenager in the context of family chores constitutes a juristic reason to deny recovery for unjust enrichment. In Oliver v. Blais, the trial judge noted:

[21]      [C]ases demonstrate familial obligations arising between farming parents and their children have been recognized as a juristic reason for justifying enrichment. Farming parents have a legitimate expectation that their children will participate in the chores and activities necessary to make the family farm viable. To find, in the absence of special circumstances, that a child’s contribution to the maintenance of the family farm gives rise to an interest in the farm would undermine normal farm family relationships.

[75]         While the court allowed a claim for unjust enrichment in Antrobus, the trial judge observed that unjust enrichment claims will not, as a matter of course, accrue to a teenager performing a reasonable level of domestic chores:

[185]    It is part of family life that family members assist one another – perhaps pitching in to help out younger siblings or aging parents, or helping with meal preparation and household chores. Children, teenagers and young adults living with their parents are often expected to do their share in keeping the household running. Working together for the common good of the family, spending time to help other family members, without any expectation of monetary compensation, is generally part of the meaning of a family. It is not the norm, and the law does not contemplate, that family members will do a forensic accounting during their lifetimes and make sure that no one was disadvantaged in the overall exchange of services.

[76]         The court found Antrobus to be an extraordinary case, both because of the crushing burden of chores that had been assigned to the plaintiff, and because she had been promised substantial compensation for doing the chores.

[77]         In general, we see the performance of chores by children in a family as positive. Such work fosters a sense of responsibility and of family. Ideally, in doing chores, children gain valuable work experience in an environment that is not overly competitive or taxing. They can learn and experience the importance of doing tasks for others without expecting monetary compensation.

[78]         These public policy considerations mean that the performance of unpaid chores by children in a family setting will not usually raise issues of unjust enrichment. There are, however, limits that must be observed. While unjust enrichment principles should not interfere with the ability of parents to assign routine chores to their children, they will ensure that children do not fall prey to exploitation.

[79]         The parties to this appeal have not, in argument, fully explored the issue of what boundaries ought to be applied in deciding when the law will grant unjust enrichment remedies in respect of chores performed by children. In the absence of full argument, it would be unwise for the court to attempt any exhaustive enumeration of what features might make chores exploitative. I would suggest, however, that exploitation may be characterized by economic benefits to the parents that are grossly disproportionate to the benefits that the children have as members of the family, or by work by the children that is manifestly detrimental to their health or wellbeing.

[80]         In the present case, the judge specifically found that the work assigned to the plaintiffs was not so extraordinary in the context of [a] farming household where the social norm [is] that all family members pitch in and perform chores for which strangers would have expected compensation. The judge noted that the children engaged in leisure and outside social activities. While the family lived frugally, there was no suggestion of economic deprivation, nor was it suggested that the children were treated by the parents as profit centres.

Petition or Notice of Claim?

Is it a Petition or Notice of Claim?

Litigators must choose the appropriate forum to commence a court action: a petition or notice of claim.

Most cases are commenced by the use of a notice of claim while certain types of cases may or must be commenced by petition.

Carphin v Braich Estate et al 2017 BCSC 1140 dismissed the Petitioner’s claim for bringing the court action in the form of a petition rather than using a notice of claim and sets out the criteria for using a petition.

A former lawyer had without having a judgement or having passed his accounts commenced an action to attempt to recover substantial legal fees and accrued interest by proceeding against  estate assets.

The Appropriate Form of Proceeding

[75]  The respondent administrators argue that a threshold issue in this matter is whether the petition is suitable for a proceeding under Rule 2-1 of the Supreme Court Civil Rules and rely on McDonald v. Lau, 2016 BCSC 1651 at para.39:

As a threshold issue, the Court must determine whether it was appropriate for the petitioner to bring this matter by way of petition. If it was not, then the matter must be converted into an action.

[76]  Rule 2-1(1) directs that every proceeding is to be begun by notice of civil claim unless an enactment or the Rules themselves provide otherwise and then sets out a list of circumstances in Rule 2-1(2) which will require a proceeding to be begun by way of petition. The potentially applicable circumstances are as follows:

(2) To start a proceeding in the following circumstances, a person must file a petition or, if Rule 17-1 applies, a requisition:

(c) the sole or principal question at issue is alleged to be one of construction of an enactment, will, deed, oral or written contract or other document;

(d) the relief, advice or direction sought relates to a question arising in the execution of a trust, or the performance of an act by a person in the person’s capacity as trustee, or the determination of the persons entitled as creditors or otherwise to the trust property;

The relief sought here extends far beyond simple questions arising in the execution of a trust or determination of a creditor.

[77] The argument of the respondent administrators is that the petitioner is seeking to enforce a debt claim against Herman Braich Jr. on the basis of the retainer, written and oral, by way of an originating application.

[78]  The respondent administrators argue that it is ill-conceived to bring this matter by way of petition given that a proceeding begun by petition can involve interpretation of a contract but not the enforcement of it: see Yates v. Air Canada, 2001 BCSC 127 at para. 36; McDonald at para. 51.

[79]  The respondent administrators further argue that, while letters have been placed into evidence, there is no formal written retainer agreement put forward by the petitioner.  Given that the onus remains on the solicitor to prove the retainer contract where there is a dispute, there must be evidence of the retainer put forward by the lawyer: see Cox Taylor v. Cochrane, 2007 BCSC 432; Walker v. Takhar, 1994 CanLII 697 (B.C.S.C.).

[80]  Accordingly, the onus is on the petitioner to prove his retainer contract with Herman Braich Jr. The respondent administrators caution that, given that Herman Braich Jr. is deceased, the retainer agreement must be examined with some care and scepticism, relying on Johl Estate v. Purewal, 2015 BCSC 2331 at para. 28; Hunt v. Kazmer, 2005 BCSC 1815 at para. 21.  While Johl Estate was brought by petition, that case involved only the retainer agreement and not the enforcement of it or all the ancillary matters sought here by the petitioner.

[81]  Given that a declaratory judgment would not resolve all the issues between the parties, I find that proceeding by way of petition is inappropriate and agree with the argument of the respondent administrators in this regard: see also Yates at paras. 35-39, when BaumanJ., as he then was, reviewed this point:

[35]As to Rule 10(1)(b), Justice Skipp’s decision in Three Stars Investments Ltd. v. Narod Developments Ltd. (1981), 33 B.C.L.R. 164, is cited.

[36]  After reviewing the law Justice Skipp concluded:

From these cases it can be concluded that the R. 10(1)(b) petition is inappropriate where:

(1)   Serious questions of law or fact are raised;

(2)  A decision will not end the matter, but requires further proceedings to be pursued;

(3)  The application involves not the interpretation but enforcement of a contract.

The petitioner has used an inappropriate procedure in its use of a petition. The role of declaratory judgments, as provided for under R.10, was commented upon by Dickson J. in Solosky v. R. (1979), 16 C.R. (3d) 294, 50 C.C.C. (2d) 495, 105 D.L.R. (3d) 745, 30 N.R. 380 (S.C.C.). In that case he adopted the view which asserted that the declaratory action is discretionary and should not be granted if it will not settle the questions at issue between the parties.

In the present case, a declaratory judgment on the construction of the contract will not settle all issues between the parties. They must still proceed to trial to enforce whichever construction is presented. On that ground alone the R.10(1) petition is inappropriate.

[39] He concluded (at 4):

In my view, the test laid down in Three Stars still applies on a Rule 10 application. However, after Douglas Lake, the existence of disputed questions of fact alone will not defeat the application. If disputed questions of fact can be satisfactorily resolved by reference of the documentation between the parties such that the court can concluded that the respondent would be bound to lose if the matter went to trial, then the application can be allowed, provided it still meets the Three Stars test. In Douglas Lake, the issue was one solely of contractual interpretation and the decision on that point ended the matter.

In this case, the respondent advances a misrepresentation claim in the approximate sum of $2,722,000. An interpretation of the contract will not end the mater [sic] and in my view further proceedings will have to be pursued. Finally, it is clear that the petitioner is seeking not only an interpretation of the purchase contract but also the enforcement of the promissory note free of any set-off claim. In my view, this does not fall within the purview of Rule 10 and this matter should be pursued by way of writ and statement of claim.

Accordingly, given the relief sought, I find that proceeding by petition is ill-conceived for the case before me, which will not resolve all the issues between all these parties.  No application or submission was made to the Court about converting this matter to an action and, as a result, in these circumstances, it would be inappropriate for the Court to do so pursuant to Rule 16-1(18).

Inherent Jurisdiction of the Court

Understanding Inherent Jurisdiction of the Court

Mayer v Rubin 2017 ONSC 3498 dealt with the inherent jurisdiction of the court to supervise the management of estates, control its processes and protect those who cannot fend for themselves. 

26      The court has broad and inherent powers to supervise the management of estates and to control its own processes. The court may draw upon its inherent jurisdiction where appropriate to protect parties before the court so that justice can be done in the proceeding.

27      In Stelco Inc. (Bankruptcy), Re, 2005 CanLII 8671 (ON CA), Blair J.A. adopted the following description of the court’s inherent jurisdiction as set out in Halsbury’s Laws of England, 4th ed. (London: LexisNexis UK, 1973 — ), vol. 37, at para. 14:

In sum, it may be said that the inherent jurisdiction of the court is a virile and viable doctrine, and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particularly to ensure the observation of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.

28      The inherent jurisdiction of the court most readily deals with issues concerning the court’s own processes. It is used to fill gaps where the legislature has not provided an answer such as when is it appropriate to appoint an officer of the court to preserve and protect the assets of an estate which may be at risk during litigation.

Settlement Agreements

Entering into Settlement Agreements

Probably every litigator has had the experience of having entered into a settlement agreement only to have the opposing party attempt to repudiate the settlement agreement resulting in a court application to determine if the agreement is valid and enforceable or if it was successfully repudiated.

Kuo v Kuo 2017 BCCA 245 recently upheld a chambers judge who found a settlement agreement to be valid despite the parties not having agreed to the capital gains tax issue.

The BC Court of Appeal reviewed the case law relating to settlement agreements and the desirability of reaching settlement as opposed to a trial.

The judge reviewed several authorities and foundational principles on repudiation. In doing so, he identified the two-question framework outlined in Fieguth v. Acklands Ltd. (1989), 37 B.C.L.R. (2d) 62 (C.A.):

i) was a contract reached?; and

ii) if so, was it repudiated by one party insisting on terms not agreed to?

Legal Framework

37      There is a strong public interest in favour of resolving lawsuits by agreement. As Abella J. observed in Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37at para. 11, “[s]ettlements allow parties to reach a mutually acceptable resolution to their dispute without prolonging the personal and public expense and time involved in litigation”. As a result, the policy of the courts is to promote settlement and to enforce settlement agreements: Catanzaro v. Kellogg’s Canada Inc., 2015 ONCA 779. This judicial policy contributes to the effective administration of justice: Kelvin Energy Ltd. v. Lee, [1992] 3 S.C.R. 235, at 259, citing Sparling v. Southam Inc. (1988), 66 O.R. (2d) 225 (Ont. H.C.).

38      When a dispute arises, the first question is whether the parties have agreed on all essential terms of the purported settlement: Fieguth at 70. The usual principles of contract formation apply. The court must analyse the evidence to determine whether, in all the circumstances, it is clear to the objective, reasonable bystander that the parties intended to contract, and whether the essential terms of that contract can be determined with a reasonable degree of certainty: Lacroix v. Loewen, 2010 BCCA 224at paras. 35-36. If they have, unless otherwise agreed, an obligation to furnish a release is implied: Fieguth at 69-70.

39      After a settlement agreement has been reached, the next stage is its completion: Fieguth at 70. Unless the agreement is terminated, the parties must fulfill their obligations, express and implied. Termination by repudiation occurs when a party evinces an intention not to be bound by the agreement and the innocent party elects to accept the repudiation: Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423 at para. 40. A fundamental breach of a primary obligation may also constitute a repudiation because it deprives the other party of substantially the whole mutually intended benefit of the agreement and thus amounts to a refusal to perform: Mantar at para. 11; Doman Forest Products Ltd. v. GMAC Commercial Credit Corp. – Canada, 2007 BCCA 88at para. 109.

40      An intention not to be bound by an agreement may be evinced by words or conduct: Guarantee Co. at para. 40. Depending on the circumstances, this may include silence in response to a request for performance when and after the request is made. In some circumstances, a repudiation may be ongoing, which, unless the agreement is affirmed, provides the innocent party with a continuing right to accept it. However, regardless of how it manifests, the refusal to perform must be clear and unequivocal to amount to a repudiation: Dosanjh v. Liang, 2015 BCCA 18at paras. 43-44; Doman Forest Products at paras. 108-109.

41      It is rare for subsequent conduct to amount to a repudiation of a settlement agreement: Fieguth at 72. For example, while insisting upon an excessive release may evidence an unwillingness to be bound, the mere proffer of such a release does not necessarily have this effect. On the contrary, as Chief Justice McEachern explained in Fieguth at 70, 72:

. . . [Unless otherwise agreed] either party is entitled to submit whatever releases or other documentation he thinks appropriate. Ordinary business and professional practice cannot be equated to a game of checkers where a player is conclusively presumed to have made his move the moment he removes his hand from the piece. One can tender whatever documents he thinks appropriate without rescinding the settlement agreement. If such documents are accepted and executed and returned then the contract, which has been executory, becomes executed. If the documents are not accepted then there must be further discussion but neither party is released or discharged unless the other party has demonstrated an unwillingness to be bound by the agreement by insisting upon terms or conditions which have not been agreed upon or are not reasonably implied in these circumstances.

ellipsis;

It should not be thought that every disagreement over documentation consequent upon a settlement, even if insisted upon, amounts to a repudiation of a settlement. Many such settlements are very complicated, such as structured settlements, and the deal is usually struck before the documentation can be completed. In such cases the settlement will be binding if there is agreement on the essential terms. When disputes arise in this connection the question will seldom be one of repudiation as the test cited above is a strict one . . . It will be rare for conduct subsequent to a settlement agreement to amount to repudiation.

Exclusion of a Party at Trial or Discovery

Exclusion of a Party at Trial or Discovery

Generally speaking a party to an action has the right to attend the entire trial or the examinations for discovery of other parties to the action and exclusion of a party is an uncommon event, but appropriate in some circumstances.

The BC Court of Appeal case Sisson v. Olson 1 W.W.R. (N.S.) 507  discusses this and it is the dissenting decision that is often reported. Some jurists have found the test in BC to be lower than  in other jurisdictions. The recent Ontario case of Lazar v TD general Insurance co 2017 ONSC 1242 is also cited later in this blog. 

 Sisson stated that  the Appellants had as much right to attend each other’s examination as they had to remain in court and listen to each other’s testimony at the trial itself. Acceptance of this conclusion does not deny jurisdiction in the court at the trial, or in the presiding judicial official at any stage of the proceedings, to order the physical exclusion of a party should a violation of an essential of justice occur or be threatened, if exclusion is not directed. What may constitute such a violation depends on the situation in each case appraised in its own atmosphere, see Bird v. Vieth (1899) 7 B.C.R. 31 (C.A.), 34 Can Abr 1264.1

The ground on which this appeal should be allowed is that the registrar appears to have ordered exclusion merely because it was asked for. This practice is not permitted by the authorities. He must exercise a discretion, and here he does not seem to have done so. 

The minority decision of the appeal court stated :

The onus on a party of showing why an opposite party should be excluded either at a trial or on discovery while his co-party testifies is not a heavy one and is lighter on discovery than at a trial, since the possibility of injustice from exclusion is more remote. Even at a trial, the chance of injustice being done in this way is extremely small. But in many cases the chances of injustice to the opposite party from refusal to exclude may be very substantial. The benefit of any real doubt should be given to the party asking for exclusion. If from the pleadings or otherwise it appears that the examinations of the co-parties will cover the same ground, and that their credibility will be a factor, then their exclusion should be ordered.

The Ontario decision of Lazara v TD General Insrtuacne Co 2017 ONSC 1242 stated:

37      The minority decision in Sissons was followed in Rando, as already noted, and in a decision of Rutherford J.: Karamanokian v. Assad, [1992] O.J. No. 2284 (Ont. Gen. Div.) (QL) [Karamanokian]. Both Rando and Karamanokian were decided before Liu Estate. There have also been cases decided since Liu Estate, where no mention is made of Lui Estate; for example Lipischak v. DeWolf, [2008] O.J. No. 4918 (Ont. S.C.J.) (QL), per Caputo J. [Lipischak] and Atlas Corp. v. Ingriselli, 2010 ONSC 3678 (Ont. S.C.J.), per Lauwers J. (as he then was), which followed Lipischak. In both of those cases, the competing lines of authority on the issue of the onus were reviewed and it was determined by the respective judge that the less stringent test as set out by Smith J.A. in Sissons should apply in the circumstances.

38      In my view, there is a risk that, by focusing on the question of whether a more or less stringent test should apply in deciding whether or not a party should be excluded from an examination for discovery or other pre-trial examination, the underlying rationale of a party’s right to be present at the examination is not properly considered. I prefer the language of Borins J. in Baywood, as set out above. In my view, it is preferable to focus on the competing interests and express the onus as that the party seeking exclusion has to demonstrate that exclusion is necessary to meet the ends of justice.

39      In considering whether or not a party has discharged its onus, a number of factors, including those enumerated by Master Rogers in Besner v. Ontario [2011 CarswellOnt 14483 (Ont. S.C.J.)], at para. 24, may be considered:

Factors considered include: whether the co-parties have common interests; whether the co-parties are represented by the same lawyer; whether it appears that the examinations for discovery of co-parties will cover the same grounds; whether credibility will be a factor or an issue in the case; whether evidence is likely to be tailored or parroted; whether a party is likely to be intimidated; whether the proceedings are likely to be disturbed or disrupted; whether there would be prejudice to the excluded party; and, generally, whether the ends of justice require the exclusion [citations omitted].

This list is not intended to be exhaustive.

40      I would make one qualification to the factors outlined in Besner. In my view, it is not always necessary that a party prove that it is likely that evidence will be tailored or parroted. That would be an impossible standard in most cases. Depending on the existence of the other factors, a risk that evidence will be tailored may be sufficient to discharge the onus. In fact, the very existence of the other factors may lead to a reasonable inference that there is such a risk.

41      As Rutherford J. stated in Karamanokian:

It is difficult to imagine how the applicant could establish in evidence directly, a probability that one other of the respondents would tailor his evidence if he had access to the evidence of the others before being cross-examined. While in rare circumstances that might be possible, direct evidence would not normally be available to demonstrate that future probability. It seems to me to be a matter which must be evaluated in the circumstances of the case and the issue or issues to be determined in the litigation.

[Emphasis added]

42      Parties are presumed to tell the truth when they testify under oath. Given the reality that there will seldom be any direct evidence of a propensity to tailor evidence, in my view, inferences will have to be drawn from other factors, such as those identified in Besner. In light of the factors that are found to be present, consideration should be given to whether or not there is a risk that evidence will be tailored if an exclusion order is not made.

43      Credibility is a factor in most litigation. The concern in cases where credibility will be the central issue in the action and co-parties intend to be present for the discovery of the other, however, is that a party’s evidence might be affected by hearing the questions asked of the other party and the answers provided. This concern is greatest when the other factors identified in Besner are present.

Vexatious Litigant Enjoined From Further Court Actions

Vexatious Litigant Enjoined From Further Court Actions

A particularly frivolous and vexatious claim commenced by ” God, Prince Kitsilano, Skidegate-Sterritt Family, in James Sterritt and Marya Watson , on behalf of all Indians and Muslims was struck and the litigant barred from commencing further court actions without leave of the Supreme Court.

While the reasons for judgement are entertaining to read, the case is an example of some of the court actions that are commenced where there is no merit whatsoever to the claim which is typically almost unintelligible.

A portion of the judgment is as follows:

Application to Strike the Notice of Civil Claim

[6]          Rule 9-5(1) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, provides that “at any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petition or other document on the ground that”:

(a) it discloses no reasonable claim or defence, as the case may be,

(b) it is unnecessary, scandalous, frivolous or vexatious,

(c) it may prejudice, embarrass or delay the fair trial or hearing of the proceeding, or

(d) it is otherwise an abuse of the process of the court, and the court may pronounce judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs.

[7]           A claim will only be struck for disclosing no reasonable claim if it is plain and obvious, assuming the facts pleaded are true, that it discloses no reasonable cause of action. That is, is there a question fit to be tried? (British Columbia v. Imperial Tobacco Canada Ltd., 2011 SCC 42, at paragraph 17; Citizens for Foreign Aid Reform Inc. v. Canadian Jewish Congress, [1999] B.C.J. No. 2160 (S.C.)

[8]          In this instance the plaintiff purports to make a claim “on behalf of all Indians and Muslims” for a declaration that he has title to the land in B.C. and as well seeks an order that the defendants enter into a tenancy agreement with him as the paramount landlord of the world. Aside from the absurdity of such an assertion, an individual member of a particular indigenous community cannot in any event assert aboriginal title as aboriginal title is communal. As a result it is plain and obvious that the notice of civil claim discloses no reasonable cause of action. (Louison v. Ochapowace Indian Band #71, 2011 SKQB 87, at paragraphs 2 and 9. See, also, Sterritt v. Canada and Sterritt v. Prince Rupert, supra.)

The Notice of Civil Claim is Unnecessary, Frivolous. Embarrassing. Scandalous and an Abuse of the Court’s Process

[9]           A pleading is “unnecessary” or “vexatious” if it does not go to establishing the plaintiff’s cause of action or does not advance a claim known in law: Citizens, supra, at paragraph 47.

Application to Strike the Notice of Civil Claim

A pleading is frivolous if it “is without substance, is groundless, fanciful, trifles with the court or wastes time”: Borsato v. Basra, [2000] B.C.J. No. 84 (S.C.), rev’d on other grounds, [2000] B.C.J. No. 2855.

[10]        An “embarrassing” and “scandalous” pleading is one that is so irrelevant that it will involve the parties in useless expense and will prejudice the trial of the action by involving them in a dispute apart from the issues: Citizens, supra, at paragraph 47.

[11 ] The abuse of process doctrine allows the courts to dismiss actions in circumstances where the court process is used for improper purposes. Abuse of process is a flexible doctrine unencumbered by specific requirements. It is directed to prevent actions that violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice: Krist v. British Columbia, 2017 BCCA 78, at para. 52.

[12]        In determining whether proceedings constitute an abuse of process, the court may consider whether there have been multiple or successive related proceedings that are likely to cause vexation or oppression: Stephen v. British Columbia (Ministry of Children & Family Development), 2008 BCSC 1656, at paragraph 51.

[13]        It is an abuse of process for a plaintiff to have multiple actions seeking the same relief against the same defendant: Dixon v. Stork Craft Manufacturing Inc., 2013 BCSC 1117, at paragraph 61.

[14]        Making a claim knowing that there is no factual basis for the allegations or for some improper collateral purpose constitutes an abuse of process: Moon v. Sails at the Village on False Creek Developments Corp., 2012 BCSC 1999, at paragraphs 27-28.

Discussion

[15]        I reproduce the Statement of Facts and Relief Sought as follows:

Part 1 Statement of Facts

1. World History, the Tzalm al’klt adaawik, is divided by the two Abramic blessings:

a. Ishmaglite – The Singular Great Nation

b. Isaacite – the Many Nations.

Canada is Isaacitic, part of the multi-state capitalist model, conducive to war and enforced by arms.

The Provincial government of British Columbia is invested in the Isaacite Model and

The City of Vancouver and City of Prince Rupert resist plaintiffs’ proposal to convert to the Ishmaelite, great Nation, Caliphate, model.

The manager of M’akola Society, Nicholas Najda, seeks to remove plaintiffs Mary Watson and James Sterritt from 438-8th Avenue West, Prince Rupert for claiming title to the lot of land at that address by threatening to evict Watson, who believes she owns the house by completing rent-to-own in 2007.

The RCMP, mayor and bylaw officer refuse to consult and order James Sterritt to stay out of City Hall, A dog bylaw ticket was issued and demand to license dog issued.

2. Plaintiffs’ Indian title to all land in the Province of British Columbia requires that all occupants of the Province end trespass and join the great nation by agreement to terms of tenancy under God in Prince Kitsilano (Jesus Chris), as in the Tzalm Family of Skidegate-Sterritt, as in James Sterritt, the landlord on behalf of the plaintiffs.

3. Section 604 City of Prince Rupert Bylaw #3250 is authority to set the ticket aside until the City ends trespass against plaintiffs.

4. M’Akola Society cannot evict or claim the lot at 438-8th West, Prince Rupert under the Residential Tenancy Act, as the land is owned by plaintiffs and Marya Watson paid for the house over the 20 years from May 1987 to May 2007, and overpaid $36, 930.00 up to June 2016 when M’Akola threatened to move her to a small apartment.

5. By resolving Indian Title over the entire Province of B.C., Plaintiffs advance the great nation against the failing multi-nation system, thus satisfying Jihad and termination terrorism by the Jewish/American coalition.

Part 2 Relief Sought

(1)         An order that defendants enter terms of tenancy under Plaintiffs as paramount world landlord.

(2)         An order setting aside Ticket #CH991 under section 604 Bylaw #3250.

(3)         An order that Marya Watson be given the deed to 438-8th Avenue West, Prince Rupert, B.C., and be reimbursed $36,930.00 for overpayment from May 2007 until June 2016.

(4)         An order that defendants pay restitution and damages and compensation to the plaintiffs, in particular to the Tzalm and to the Skidegate-Sterritt Family, and to James Sterritt,

(5)          An order or declaration that all Indians in the Province of British Columbia have their particular rights and titles to lands reserved to them and each of them recognized and affirmed within terms of tenancy that relieve them of the burden imposed on them by Canada and by the Province of British Columbia, and by Cities, Towns, Villages and all such.

[16]        It is self-apparent the claim fails to establish a cause of action against any of the defendants and does not advance a claim known to law and “is without substance, is groundless, fanciful, trifles with the court or wastes time.” It is also “embarrassing” and “scandalous” and is so irrelevant it will involve the parties in useless expenses and will prejudice the trial of the action by involving them in a dispute apart from the issues.

[17]        The pleadings fail to plead facts and make no allegations against Mr. Lindquist that establish a cause of action. In addition, his claims against the City and Mr. Lindquist amount to a collateral attack.

[18]        As in Sterritt v. Canada, the claim at bar “is embarrassing not only because of its disjointed nature, but also by reason of bare assertions and conclusions” preventing the defendants from knowing “how to react to and deal with” the claim: Sterritt v. Canada, supra, at paragraph 17.

[19]        The pleadings are not capable of amendment. They are fundamentally flawed for the reasons given. There is a noted lack of connection to reality and the assertions made are absurd. The Notice of Civil Claim is struck in its entirety.

[20]        I turn now to the application to have Mr. Sterritt declared a vexatious litigant. Vexatious Proceedings

[21]        Section 18 of the Supreme Court Act, R.S.B.C. 1996, c. 443, provides that:

[i]f, on application by any person, the court is satisfied that a person has habitually, persistently and without reasonable grounds, instituted vexatious legal proceedings in the Supreme Court or in the Provincial Court against the same or different persons, the court may, after hearing that person or giving him or her an opportunity to be heard, order that a legal proceeding must not, without leave of the court, be instituted by that person in any court.

[22]       The hallmarks of vexatious conduct by litigants were noted in R.D. Backhoe Services Inc. v. Graham Construction and Engineering Inc., 2017 BCCA 91 at paragraphs 29-30:

29.          A non-exhaustive list of the considerations this Court may take into account in deciding whether to make a vexatious litigant order were set out by Mr. Justice Donald in Lindsay v. Canada (Attorney General), 2005 BCCA 594. They include:

The respondents urged on us the summary provided by Henry J. in Re Lang Michener et al. and Fabian et al. (1987), 37 D.L.R. (4th) 685 at 691, 59 O.R. (2d) 353 (H.C.J.):

From these decisions the following principles may be extracted:

(a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;

(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;

(c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

(d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

(e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;

(f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious;

(g) the respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.

30.          While our focus on whether an order should be made in this Court depends on the litigant’s conduct in this Court, our analysis may also be informed by the litigant’s conduct in the courts below.

[23]        In addition, the courts in Canada “have finite resources that cannot be squandered. Every moment devoted to a vexatious litigant is a moment unavailable to a deserving litigant. The unrestricted access to courts by those whose access should be restricted affects the access of others who need and deserve it”: Canada v. Olumide, 2017 FCA42, at paragraph 19.

[24]        As is apparent from the summary of actions initiated by Mr. Sterritt in various courts, they are strikingly similar. He reiterates claims on behalf of God, styles himself as a “Prince” and purports to act for all first nations. His actions fall within a number of the hallmarks referred to in R. D. Backhoe.

[25]        The history of Mr. Sterritt’s involvement in various courts clearly establishes a pattern of repetitive applications respecting the same issue or issues, with claims utterly lacking in merit, in certain cases brought for improper purposes and throughout lacking any kind of rational connection to reality. I note that the Provincial Court, while not declaring Mr. Sterritt a vexatious litigant, possibly from concerns respecting jurisdiction to do so, has more than once sought to control its process by requiring Mr. Sterritt to obtain leave before pursuing a claim.

[26]        In addition, despite repeatedly being informed by this and other courts that he cannot advance the claims he is making in this case, he persists in doing so.

[27]        I am satisfied that it is appropriate to order that Mr. Sterritt is a vexatious litigant and for the reasons given must have his applications to this Court and the Provincial Court of British Columbia controlled. As suggested by counsel for the Province, the form of order made by Chief Justice Hinkson in Fyfe v. Fyfe, 2014 BCSC 1999, is appropriate on the facts of this case.

[28]        As a result I make the following orders with respect to the vexatious litigant application:

(a) I order that the Notice of Civil Claim in this proceeding is struck in its entirety.

(b) I order, pursuant to section 18 of the Supreme Court Act, that James Sterritt is enjoined from instituting any legal proceeding, on his own behalf or on behalf of others, in the Supreme Court of British Columbia and in the Provincial Court of British Columbia, or from making further applications in this action without obtaining leave of a Justice of the Court to do so.

(c) I further order that James Sterritt and anyone acting on his behalf are enjoined from filing or attempting to file, by any means whatsoever, any document in any registry of the Supreme Court of British Columbia or the Provincial Court of British Columbia without leave of a Justice of the Court.

(d) The only exceptions to this injunction will be for applications for leave to file applications for leave to commence new proceedings or applications for leave to file documents in existing actions. The plaintiff or anyone acting on his behalf will be permitted to file applications for such leave, so long as they are three pages or less in length, and accompanied by only one affidavit, not to exceed five pages in length.

(e) I further order that the staff of the Registries of the Supreme Court of British Columbia and the Provincial Court of British Columbia discard any document that Mr. Sterritt or anyone on his behalf attempts to file in contravention of this order.

(f) The defendants are entitled to their costs of this action to be taxed before the registrar.

Court Orders Mental Capacity Exam

The Court Orders Mental Capacity Exam

In Re Singh 2017 BCSC 984 the court invoked its parens patriae jurisdiction and  ordered a 93 year old father to undergo a mental capacity examination by two geriatric doctors .

Two of his six children claimed that their father was mentally incompetent to manage his own affairs and asked the court to order an assessment by two geriatric doctors. Based on his mental capacity exam, if he was found to be incapable then they sought to be appointed his committee under the Patients Property act. The other four children opposed the application. The family doctor stated that he showed signs of vascular dementia and had good days and bad days.

The court held that while it was an intrusion into the patients life it was important enough to order the mental capacity examinations under the inherent jurisdiction of the court to protect those who were incapable of protecting themselves.

35   Sections 3 and 5 of the Patient’s Property Act govern the procedure for obtaining a declaration of incapability. Those sections provide, in relevant part:

Hearing of application

3(1) If, on

(a) hearing an application, and

(b) reading the affidavits of 2 medical practitioners setting out their opinion that the person who is the subject of the application is, because of

(i) mental infirmity arising from disease, age or otherwise, or

(ii) disorder or disability of mind arising from the use of drugs, 

(iii) incapable of managing his or her affairs or incapable of managing himself or herself, or incapable of managing himself or herself or his or her affairs,

The court is satisfied that the person is, because of

(c) mental infirmity arising from disease, age or otherwise

Examination 5(1) If

(a) an application is made or an issue is tried under section 3,

(b) an appeal is taken from an order under section 3, or

(c) an application is made under section 4,

the court hearing the appeal or application or trying the issue may order the person who is the subject of the application or the patient to attend and submit at the time and place the order directs to examination.

(2) An examination under this section must be made by

(a) one or more medical practitioners other than those whose affidavits were before the court on the appeal, application or trial, or

(b) a board of 3 or more medical practitioners designated by the College of Physicians and Surgeons of British Columbia at the request of the court.

36   In the leading case of Temoin v. Marlin 2012 BCCA 250, Neilson J.A., for the Court, observed at para. 27 that this legislation “reflects the tension between the right to personal autonomy and the protection of vulnerable individuals”.

37   I take the following principles from Temoin:

  • There is no statutory authority to order a person to undergo the medical examinations required for an application under s. 3 of the Act (at para. 48).
  • There is a gap in the Act, which provides no protection for individuals who appear to be incapable but have no access to physicians, or who refuse to be medically examined (at para. 51).
  • The parens patriae jurisdiction is founded on the need to protect those who cannot care for themselves. The court’s discretion must be exercised to do what is necessary for the protection of the person for whose benefit it is exercised (at para. 55, citing Re Eve, [1986] 2 S C.R 388).
  • The Court may exercise its powers under its parens patriae jurisdiction to fill in the gap by making what is effectively a provisional finding of incapacity for the limited purpose of bringing an individual within the Act and its procedural safeguards. However, this power must be exercised cautiously, and only on a proper evidentiary basis (at para. 56).
  •  The Court’s parens patriae jurisdiction must be used for the benefit of the person in need of protection, and not to benefit others (at para. 60).
  • The application to compel a person to undergo the two medical examinations required for a declaration of incapability engages the Charter values of liberty, autonomy and equality. “Those values are given meaning by requiring a level of proof that is commensurate with both the importance of the individual interests and the seriousness of the intervention at stake” (at para. 60).
  • The test for the exercise of the parens patriae power requires the applicant to present evidence establishing a serious question to be tried, both with respect to the individual’s capacity and his or her need for protection (at para 61).

38  In Temoin, at para. 61, the court also approved the test stated by the chambers judge: a requirement for “prima facie evidence of incompetence and a compelling need for protection

Undue Delay: Laches

Undue Delay: Equitable Defence of Laches

Hrenyk v Preiss estate 2017 SKQB 151 contains a through discussion of the equitable defence of laches- the plaintiff’s undue delay in proceeding with a court action to resolution.

26 Laches is discussed in Ahone v. Holloway (1988), 30 B.C.L.R. (2d) 368 (C.A.), at page 378:

… Laches is established when two conditions are fulfilled:

(1) there must be unreasonable delay in the commencement or prosecution of proceedings, and

(2) in all the circumstances the consequences of delay must render the grant of relief unreasonable or unjust.

27 Laches was more recently considered by Gabrielson J. in Turcot v. Slade, 2010 SKQB 367, 364 Sask. R. 36at para. 15:

[15] … The equitable doctrine of laches was discussed by the Supreme Court of Canada in M. (K.) v. M. (H.), [1992] 3 S.C.R. 6, [cites omitted] where the court stated at paras. 97 and 98:

97 The leading authority on laches would appear to be Lindsay Petroleum Co. v. Hurd (1874), L.R. 5 P.C. 221, in which the doctrine is explained as follows, at pp. 239-40:

… the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent of a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.

. . .

In turn, this formulation has been applied by this Court; see Canada Trust Co. v. Lloyd, [1968] S.C.R. 300; Blundon v. Storm, [1972] S.C.R. 135.

98 The rule developed in Lindsay is certainly amorphous, perhaps admirably so. However, some structure can be derived from the cases. A good discussion of the rule and of laches in general is found in Meagher, Gummow and Lehane, supra, at pp. 755-65, where the authors distill the doctrine in this manner, at p. 755:

It is a defence which requires that a defendant can successfully resist an equitable (although not a legal) claim made against him if he can demonstrate that the plaintiff, by delaying the institution or prosecution of his case, has either (a) acquiesced in the defendant’s conduct or (b) caused the defendant to alter his position in reasonable reliance on the plaintiff’s acceptance of the status quo, or otherwise permitted a situation to arise which it would be unjust to disturb …

Thus there are two distinct branches to the laches doctrine, and either will suffice as a defence to a claim in equity. What is immediately obvious from all of the authorities is that mere delay is insufficient to trigger laches under either of its two branches. Rather, the doctrine considers whether the delay of the plaintiff constitutes acquiescence or results in circumstances that make the prosecution of the action unreasonable. Ultimately, laches must be resolved as a matter of justice as between the parties, as is the case with any equitable doctrine.

(Emphasis added)

. . .

35      The applicant asserts that the respondent bears the burden of establishing laches, relying on the following comments of Caldwell J.A. in Olney Estate v. Great-West Life Assurance Co., 2014 SKCA 47, 438 Sask. R. 47 (Sask. C.A.):

75 … the doctrine of laches is an equitable defence which must be made out on the evidence by the party who asserts it. If the evidence adduced by the party relying on the doctrine makes out the availability of the defence, the onus shifts and the other party is logically and properly put to the burden of adducing evidence to dispel its application; however, the law does not require a party to make out the party opposite’s defence.

[emphasis in original]

36      I must first determine whether the respondent has established that the applicant acquiesced in the respondent’s position. In Gottselig Estate v. Gottselig Estate, 2014 SKQB 20 (Sask. Q.B.) at paras 51, 54 and 55, (2014), 436 Sask. R. 144 (Sask. Q.B.), Barrington-Foote J. explained the relationship of acquiescence to the doctrine of laches:

51 Laches is an equitable doctrine. In Waters’ Law of Trusts, supra, the principled justification for the doctrine is described as follows: (at p. 1242-43)

No legal system could allow a person who has a legal claim to do nothing over a long period of time to then assert it, and bring his action because it pleases him at that moment to do so. A would-be defendant is reasonably entitled to ask that action shall be brought when the evidence, particularly in his own favor, is still available and at least relatively fresh. Nor is it unreasonable for him to assume, if the would-be plaintiff does nothing for a considerable period of time, that the latter has condoned the wrongdoer’s act or omission, and intends that the wrongdoer may arrange his affairs accordingly. Courts of equity traditionally adopted these views, and applied them in the doctrine of laches. The claimant who delayed bringing his claim for an unreasonable period of time was taken to have acquiesced in the circumstances brought about by the wrongdoing. (footnotes omitted)

. . .

54 Laforest J. [in M. (K.) v. M. (H.), [1992] 3 S.C.R. 6] also explores the concept of acquiescence, which is not only relevant to a consideration of laches, but is a separate equitable doctrine. The following comments in Waters’, supra, are instructive: (at p. 1254)

[The doctrine of laches] is also closely related to the doctrine of acquiescence which in recent years has increasingly become associated with delay in bringing action. Indeed, it is more likely that what the courts are really concerned with is implied acquiescence rather than delay itself. This is particularly true today when limitation statutes expressly apply to so many actions brought in equity…[Acquiescence] is something more than a mere abstaining from legal proceedings; it is an adoption established by some positive evidence of the transaction or dealing which the claimant now disputes. … (footnotes omitted)

55 This statement is consistent with Laforest J.’s explanation of acquiescence, and its relationship to laches, which is as follows:

100 Acquiesence [sic] is a fluid term, susceptible to various meanings depending upon the context in which it is used. Meagher, Gummow and Lehane, supra, at pp. 765-66, identify three different senses, the first being a synonym for estoppel, wherein the plaintiff stands by and watches the deprivation of her rights and yet does nothing. This has been referred to as the primary meaning of acquiescence. Its secondary sense is as an element of laches — after the deprivation of her rights and in the full knowledge of their existence, the plaintiff delays. This leads to an inference that her rights have been waived. This, of course, is the meaning of acquiescence relevant to this appeal. The final usage is a confusing one, as it is sometimes associated with the second branch of the laches rule in the context of an alteration of the defendant’s position in reliance on the plaintiff’s inaction.

101 As the primary and secondary definitions of acquiescence suggest, an important aspect of the concept is the plaintiff’s knowledge of her rights. It is not enough that the plaintiff knows of the facts that support a claim in equity; she must also know that the facts give rise to that claim: Re Howlett, [1949] Ch. 767. However, this Court has held that knowledge of one’s claim is to be measured by an objective standard; see Taylor v. Wallbridge (1879), 2 S.C.R. 616, at p. 670. In other words, the question is whether it is reasonable for a plaintiff to be ignorant of her legal rights given her knowledge of the underlying facts relevant to a possible legal claim.

Personal Costs Against Lawyer

Personal Court Costs Awarded Against Lawyer - Disinherited

C.A.S. of the R.M.of W. v C.T.and J.B. 2017 ONSC 318 awarded personal court costs of $100,000 against a lawyer for her role in a custody battle involved in the Children’s Aid Society.

The court found that the lawyer’s tactics and strategy had caused an unnecessary duplication of effort of counsel, unnecessary extra court attendances, and a significant consumption of court and counsel’s resources and taxpayer funding.

While this is an unusual development, it is not unheard of in Canadian jurisprudence were counsel’s behaviour is unacceptable irresponsible at it best reprehensible, at worst.  In fact, I sense it is a growing trend the courts attempts to deal with over crowded court lists that are made worse by the few lawyers that ultimately waste limited  court resources.
In a nutshell, decision to require a lawyer to pay court costs to a person is not predicated upon a finding of ineffective or inadequate counsel or upon that councils negligent conduct. Although such a finding may be relevant, the test is whether the lawyer has” wrote up costs without reasonable cause, or has wasted costs.”

Court costs are traditionally intended to:

a) indemnify the successful litigant;
b) encourage parties to settle disputes; and
c) sanction a parties unreasonable behaviour or parties that are unprepared ie costs wasted

[76] InRand Estate v Lenton (2009 ONCA 251 (CanLII)) at para. 5, the Ontario Court of Appeal found that the determination of costs against counsel requires a holistic and contextual approach to the entirety of the solicitor’s behaviour (not just during the trial only, as Ms. Sack argues) in order to “…produce an accurate tempered assessment” of costs.

Further, other case law confirms that the test for determining costs against counsel is a two-part test:

(1) did counsel cause costs to be unnecessarily incurred?

(2) should the court exercise its discretion to impose costs against counsel despite the requirement that it use extreme caution before doing so? (see Galganov v Russell (Township) )2012 ONCA 410 (CanLII)) at para 22. This decision reiterates the “extreme caution principle” set out in Young v Young (1993 CanLII 34 (SCC), [1993] 4 SCR 3 at para 263) which was also followed by Justice Hackland, in Carleton v Beaverton Hotel, 2009 CanLII 92124 (ON SCDC), [2009] 96 OR (3d) 391; 314 DLR (4th) 566 where, at para 15, he noted:

anLII 92124 (ON SCDC), [2009] 96 OR (3d) 391; 314 DLR (4th) 566 where, at para 15, he noted:

I agree with the appellant’s submission that the “extreme caution” which courts must exercise in awarding costs against a solicitor personally as stated in Young v. Young, means that these awards must only be made sparingly, with care and discretion, only in clear cases,

[76] In F. (V.) v F. (J.) (2016 ONCJ 759 (CanLII) at paras. 11-15) Kurz, Prov. J. elaborated  on the first part  of the test, as set down by the Ontario Court of Appeal in Galanov:

11          The Ontario Court  of Appeal offered the following directions in regard to the first part of the two-part test in Galganov:

a.    The first step is to determine whether the conduct of the lawyer comes within the rule; that is, whether his or her conduct caused costs to be incurred unnecessarily. To do so, the court must consider the facts of the case and the particular conduct attributed to the lawyer.

b.  The rule allowing costs against a lawyer is not intended as punishment for professional misconduct. Rather, it is as indemnity for the time wasted and expenses unnecessarily expended as a result of the conduct of a lawyer.

c.   Neither negligence nor bad faith is a requirement for imposing costs against a lawyer.

d.  Mere negligence or conduct that does not meet the level of negligence may be sufficient to attract costs against a lawyer.

e.   The costs rule is intended to apply “…only when a lawyer pursues a goal which is clearly unattainable or is clearly derelict in his or her duties as an officer of the court…”

f.   In determining whether the rule applies, the court must examine “the entire course of the litigation that went on before the application

Judge’.” This requires a “holistic examination of the lawyer’s conduct” in order to provide an “accurate tempered assessment”. But a general observation of the lawyer’s conduct is not sufficient. Instead, the court must look to the specific incidents of conduct that are subject to complaint, (my emphasis)