Occupational Rent – Competing Damages Between Co-Owners

Occupational Rent - Competing Damages Between Co-Owners

Ajayi v Oziegbe  2017 ONSC  2732 discussed the concept of occupational rent where one co owner occupies a jointly owned property to the exclusion of the co owner, and the co owner seeks damages for the use of the property and the occupying party seeks competing damages for the costs of carrying on the property such as maintenance and upkeep.

Occupation Rent and Carrying Costs

101      This brings me to Mr. Ajayi’s claim for occupation rent. The principles relating to occupation rent are set out in Erb v. Erb, 2003 CanLII 2112 (ON SC), where the Court stated at paras. 73 and 74:

In evaluating the claim for occupation rent, the jurisprudence establishes that a court has jurisdiction to grant occupation rent where it would be equitable and reasonable to do so. The court should look to a number of factors, including when the claim was first raised, the duration of the occupancy, as well as other circumstances existing between the parties: McColl v. McColl (1995), 12 R.F.L. (4th) 449; McKinlay v. McKinlay (1996), 22 R.F.L. (4th) 212. I subscribe to the observations of J.W. Quinn J. as set forth in paragraph 57 of Higgins v. Higgins, [2001] O.J. No. 3011. I think the case of Adams v. Adams (2001), 15 R.F.L. (5th) 1, relied upon by the defendant, to have little application to this case in that there the amounts paid by the husband were “prepayments” on the mortgage and were agreed by him to have been paid voluntarily for the family’s benefit. The expenses paid by the plaintiff in this case were not of that type or for that purpose.

I accept the defendant’s submission, supported as it is by remarks in Higgins, supra that as a basic proposition there should be an allowance for occupation rent if there is a claim for expenses during occupancy and prior to sale. The evaluation of those competing interests has to be decided based on all the circumstances in the case.

102      In resisting a claim for occupation rent, Ms. Oziegbe points to the decision of Horkins J. in B(J) v. M.(D.), 2014 ONSC 7410, where she states at para. 152:

The facts of this case do not support the respondent’s claim for occupancy rent. The respondent’s inability to use the matrimonial home arose from his criminal conduct when he assaulted the applicant. The applicant has been solely responsible for all of the household expenses since separation. It is not reasonable or equitable to award occupation rent given these facts. The request is denied.

103      When these decisions are reviewed, it is clear that the Court has the ability to consider the equities of the case in deciding whether to order occupation rent. The conduct of Mr. Ajayi in assaulting Ms. Oziegbe is a factor that supports denying Mr. Ajayi’s claim for occupation rent. However, I am of the view that this factor is outweighed by the factors in favour of granting occupation rent. These factors are:

a) The title to half the property should have been with Mr. Ajayi, and his equity has been tied up in the home, preventing him from investing it elsewhere.

b) Mr. Ajayi is responsible for the carrying costs for the home. As noted by Glithero J. in Erb, supra, where there is a claim for expenses there should be an allowance for occupation rent.

c) The delay in Mr. Ajayi obtaining his equity between September of 2015 and now is as a result of Ms. Oziegbe defending this case, and claiming that there was no resulting trust.

104      The parties have agreed on the amount that should be charged for occupation rent, and I have included that in my calculations in Appendix “1”. When the carrying costs are set off against the occupation rent, then Mr. Ajayi owes Ms. Oziegbe an adjustment of $5,773.44, which will be paid out of the proceeds from the house.

Avoiding Duplicate Litigation (Res Judicata)

Duplicate Litigation

Duplicate litigation is to be avoided and thus the legal concept of res judicata- when a court has decided the legal issue already it constitutes a bar to a subsequent action involving the same claim.

Alexander v Alexander 2017 BCSC 914 is a recent case dealing with this concept and states inter alia:

16      The doctrine of res judicata and its application was summarized by Ballance J. in Tylon Steepe Homes Ltd. v. Pont, 2011 BCSC 385beginning at para. 52:

[52] The doctrine of res judicata is a time-honoured cornerstone of Canadian justice. Where a cause or a fundamental issue has been decided, it is said to be res judicata and, absent special circumstances, is precluded from being adjudged a second time. When res judicata applies, a litigant is stopped by the prior suit, from proceeding in the subsequent action. The maxim has been traditionally regarded as an exclusionary rule of evidence. The paramount policy considerations include the avoidance of duplicative litigation, potential inconsistent results and inconclusive proceedings. Finality to litigation is the prime objective. (See generally: Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248 [Angle]; Grdic v. The Queen, [1985] 1 S.C.R. 810 [Grdic]; Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460[Danyluk]).

[53] Res judicata takes two distinct forms: issue estoppel and cause of action estoppel, indicating that there can be estoppel with respect to the entire cause or a discrete issue(s). Much of the judicial analyses of the doctrine spring from a scenario where it is a plaintiff who is attempting to relitigate a matter; however, the principles apply, with obvious modifications, to the attempted recycling of a defence.

[54] Generally speaking, the authorities require fastidious adherence to the constituent elements of res judicata in order to permit its application. However, even where the requisite ingredients are present, the court retains a residual discretion to decline to apply it if doing so would cause unfairness in the particular case: Danyluk at para. 33; British Columbia (Minister of Forests) v. Bugbusters Pest Management Inc. (1998), 159 D.L.R. (4th) 50, 50 B.C.L.R. (3d) 1 (C.A.) [Bugbusters, cited to D.L.R.]. As Finch J.A. (now the Chief Justice) emphasized at para. 32 in Bugbusters, the doctrine “inevitably calls upon the exercise of a judicial discretion to achieve fairness according to the circumstances of each case”.

[55] The three-fold requirements which must be established in order to successfully invoke issue estoppel are:

(1) that the same question has been decided and was fundamental, as opposed to collateral or incidental, to the decision;

(2) that the decision in the first proceeding said to create the estoppel was final; and

(3) that the parties to the first proceeding or their privies are the same persons as the parties, or their privies, to the subsequent proceeding:

(See Angle; Grdic and Danyluk).

[56] The “same question” test is a crucial element and a focal point of both types of estoppel under the res judicata umbrella.

17      With respect to the last of the three requirements, issue estoppel can be established through privity of blood, title or interest: Genesee Enterprises v. Abou-Rached, 2001 BCSC 59at para. 234; Giles v. Westminster Savings Credit Union, 2006 BCSC 1600at para. 45.

18      The test under Rule 9-5(1)(d) for striking an action on the basis of res judicata is whether it is “plain and obvious” that res judicata applies. The burden is on the applicant to establish the applicability of res judicata: see Worldwide Treasure Adventures Inc. v. Trivia Games Inc. (1996), 17 B.C.L.R (3d) 187 at 195.

19      Ballance J. continued at paras. 79 and 80 of Tylon Steepe Homes with a discussion concerning the relationship between the doctrine of res judicata and the doctrine of abuse of process:

[79] In response to perceived difficulties in demanding strict adherence to the constituent elements of res judicata, modern Canadian courts have developed the independent but related concept of abuse of process as a means of barring relitigation where permitting it to proceed would offend vital principles such as judicial economy, consistency, finality of legal disputes, and, perhaps most importantly, the integrity of the judicial decision-making process. Abuse of process is a flexible doctrine that finds its roots in the Court’s inherent residual discretion to prevent an abuse of its process.

[80] The concepts of res judicata and abuse of process are inter-related and share several overlapping features and common policy objectives. They are each extraordinary remedies to be applied sparingly: Chapman. Indeed, the decision in Saskatoon ultimately rested on abuse of process. It is key to appreciate that with respect to abuse of process the proper focus is on the integrity of the administration of justice and not the motive of the parties in terms. 

What Happens When You Lose Your Will?

What happens when you lose your will? Many people, in fact, do. They might be hoarders or they might be very careful people but they don’t appreciate that that document that they signed many years ago and took home is perhaps the original of a very valid document that only takes effect upon a death. So it’s important to safeguard where the will is kept.

The main reason is that if the will is lost while in your possession and then you die, you are presumed to have revoked that will and that the will no longer exists. This is a rebuttable presumption and the court will be allowed to look at whether you referred to the will, whether you referred to the will to your general nature as to what type of person you were and to any other previous wills that you might have done in an attempt to see if the presumption can be rebutted. The most important thing to remember though is to safeguard your will.

Obligations of a Power of Attorney

Obligations of a Power of Attorney

The Manitoba Supreme Court in Krawchuk v Krawchuk 2017 MBQB 47 outlined the legal obligations  of a power of attorney.

Manitoba’s laws for powers of attorneys are essentially the same as for British Columbia.

The Court stated inter alia as follows:

18      The applicable law with respect to the obligation of an attorney in his or fiduciary relationship with the donor was not at issue. Some of the applicable principles can be summarized as follows:

(a) as a fiduciary, an attorney has an obligation to act in the best interests of the settler or donor and cannot permit his or her personal interests to conflict with that obligation (see Brown v. Lefebvre, 2007 ABQB 195, 419 A.R. 347 (Alta. Q.B.) at para. 20);

(b) the obligations of an attorney include keeping proper accounts of the trust estate, distinct from other accounts and preserving receipts for cancelled cheques (see Re Lefebvre at para. 21);

(c) the obligations of an attorney include producing accounts to the donor, court and any beneficiary and insuring the accounts clearly show all monies and assets received or accounted for;

(d) an enduring power of attorney requires the highest commitment of good faith, loyalty and trust (see B. (E.) v. B. (S.), 2010 MBQB 15, 248 Man. R. (2d) 260 (Man. Q.B.) at para. 50; Todosichuk v. Daviduik Estate, 2004 MBCA 191, 190 Man. R. (2d) 254 (Man. C.A.));

(e) breach of a fiduciary relationship gives rise to the widest array of equitable remedies (see Todosichuk at para. 21; Wewaykum Indian Band v. R., [2002] 4 S.C.R. 245, 2002 SCC 79 (S.C.C.));

(f) equitable remedies are always in the discretion of the court which is concerned not only in compensating a wronged plaintiff but also in upholding the obligations of good faith and loyalty (see Todosichuk at para. 22; Canson Enterprises Ltd. v. Boughton & Co., [1991] 3 S.C.R. 534 (S.C.C.));

(g) the fiduciary relationship has trust, not self-interest, at its core, and when breach occurs, the balance favours the person wronged (see Todosichuk at para. 22; Canson Enterprises at p. 543 per McLachlin J. (as she then was)); and

(h) in considering whether to grant a remedy, and if so, the nature of the remedy, the question of deterrence is often most relevant (see Todosichuk at para. 25).

Determining Legal Fees When No Retainer Agreement is Present

Determining Legal Fees When No Retainer Agreement is Present

If a lawyer does not have a contingency fee agreement or retainer agreement then the courts will use various criteria to determine the appropriateness of the legal fees based on quantum meruit (a reasonable fee for services rendered).

One of the chestnuts in this area of law is the Court of Appeal decision from Saskatchewan – Yule v City of Saskatoon  1955 , 17 WWR 296 which adopted the criteria set out in Re Solicitor: 

11.  Re Solicitor (1920) 47 O.L.R. 522, supra.: the matters to be considered in arriving at a proper amount on the basis of a quantum meruit;  are:

1)  the extent and character of the services rendered,

2) the labour, time and trouble involved,

3) the character and importance of the litigation in which the services were rendered,

4) the amount of money or the value of the property involved,

5)  the professional skill and experience called for,

6) the character and standing in his profession of the counsel and

7) the results achieved.

Appointing and Removing a Litigation Guardian

Appointing and Removing a Litigation Guardian

Under Supreme Court Rule 20 – 2 (2) a proceeding brought by or against a person under a legal disability must be started or defended by his or her litigation Guardian.

A person is typically under a legal disability when under the age of 19 years, or has a disorder of the mind that seriously impairs the person’s ability to react appropriately to the court and its processes.

Rule 20 – 2 (8) (b) states that the proposed litigation guardian of the person under the legal disability must have no interest in the proceeding adverse to that person.

Rule 20-2 ( 1(11) states that if it is in the interest of a party who is under disability, the court may remove a point or substitute a litigation Guardian.

The Supreme Court of Canada, reviewed the criteria for appointing and removing a litigation Guardian in Gronnerud (Litigation Guardian of) v. Gronnerud Estate, 2002 SCC 38 (S.C.C.),

17      The Supreme Court of Canada, in its reasons at para. 3 and following, reviewed the history of the litigation and then reviewed the criteria for removing the litigation guardian. In so doing, the Court concluded that under the Saskatchewan Rule the test to remove a litigation guardian turned on the “best interests of the dependent adult”. The Court set out criteria that it found from leading Saskatchewan authorities, which criteria I find would also be required on the appointment under our Rules of Court. These criteria set out in para. 19 by the Supreme Court of Canada are as follows:

1. the evidence must establish that the incompetent is unable to act for himself or herself;

2. evidence should be verified under oath as to the incompetent’s mental condition and his or her inability to act as plaintiff;

3. evidence must demonstrate that the litigation guardian is both qualified and prepared to act, and in addition is indifferent as to the outcome of the proceedings;

4. the applicant should provide some evidence to support the claim being made;

5. the applicant should obtain the consents of the next-of-kin or explain their absence;

6. if the applicant has a personal representative or power of attorney whose status is not being challenged in the proceedings, some explanation should be offered as to why the attorney or representative has not been invited to bring the claim. (my emphasis added)

18      Major, J. speaking for the majority said this at para. 20:

The third criterion, that of “indifference” to the result of the legal proceedings, essentially means that the litigation guardian cannot possess a conflict of interest, vis-a-vis the interests of the disabled person. Indifference by a litigation guardian requires that the guardian be capable of providing a neutral, unbiased assessment of the legal situation of the dependent adult and offering an unclouded opinion as to the appropriate course of action. In essence the requirement of indifference on the part of a litigation guardian is a prerequisite for ensuring the protection of the best interests of the dependent adult. A litigation guardian who does not have a personal interest in the outcome of the litigation will be able to keep the best interests of the dependent adult front and centre, while making decisions on his or her behalf. Given the primacy of protecting the best interests of disabled persons, it is appropriate to require such disinterest on the part of a litigation guardian. (my emphasis added).

19      In upholding the removal of the adult children as their mother’s litigation guardian, the Court noted that they could not act in their mother’s best interest because they failed to meet this particular criterion of “indifference”. At para. 22, relative to “indifference”, the Court said this:

In my opinion, The Court of Appeal was correct in removing Judy and Glenn as Cherie Gronnerud’s litigation guardians and replacing them with the Public Trustee. Judy and Glenn could not act in their mother’s best interests because they fail to meet the third Szwydky criterion. Namely, they were not indifferent as to the outcome of the proceedings surrounding the estate of Harold Gronnerud, such as the claim under The Matrimonial Property Act and the claim for dependent’s relief. As residuary beneficiaries under Harold’s will, Judy and Glenn have an interest in proceedings that could result in the movement of assets from Harold’s estate to Cherie’s estate. As Cherie’s 1967 holograph will is not broad enough to cover all potential assets passing from Harold’s estate, those new assets would be distributed to all four of Cherie’s children equally in accordance with the laws of intestacy. If proceedings brought by Cherie’s litigation guardian against Harold’s estate are successful, Judy and Glenn could stand to gain more as beneficiaries with one-quarter interest each in Cherie’s newly increased estate, as opposed to residuary beneficiaries under Harold’s will. It is obvious that Judy and Glenn cannot be said to be disinterested in the results of the legal proceedings. The Court of Appeal was correct to remove them as litigation guardians.

20      Applying that rationale to the circumstances at bar, I am of the view that, like the adult children in Gronnerud, Alan in this case is not “indifferent” to the outcome of the proceedings. These are matrimonial proceedings in which assets may move from the defendant, Winston Lodge, to the Estate of Mary Lodge. That is what family litigation is about. There is a claim for reapportionment advanced in the pleadings. As such, Alan would benefit from having as much as possible of his father’s holdings being reapportioned to his mother. His potential inheritance would be enhanced in value as the result of him being a beneficiary under his mother’s will. Given her incompetency due to Alzheimer’s disease, it is unlikely that she will ever make another will, or be in a legal position to change her designation of Alan as a beneficiary. He therefore could never be said to be indifferent as to the outcome of this family litigation. The same rationale would apply to Dean Lodge.

21      Applying these decisions from Ontario and Saskatchewan to Rule 6(8) and 6(10) of the Rules of Court establishes in my mind the following principles with respect to a litigation guardian in British Columbia, namely:

(a) a litigation guardian will be found to have an “interest in the proceedings” adverse to the person under disability where there is a “high level of conflict”, between the proposed litigation guardian and a party in the proceeding;

(b) a litigation guardian will also have an “interest adverse to the person under disability” in those cases where the litigation guardian stands to benefit, either directly or indirectly by the litigation, even if that benefit has not vested at the time of the appointment. It is sufficient that the potential benefit, realistically assessed, is present.

Notice to Dispute: Understanding the Rules

Notice to Dispute: Understanding the Rules

A party wishing to contest the issuance of a grant of probate or administration may file a Notice to Dispute under Rule 25 (10) of the Supreme Court Rules.

While a notice to dispute is in effect, the registrar must not issue an estate grant. The court may, on application, remove the notice of dispute if the court determines that the filing is not in the best interests of the estate. A notice of dispute is in effect for one year after the date of filing unless renewed or removed by order of the court or the will is proved in solemn form. 

Re: Dow Estate 2015 BCSC 292 stated:

[14]         A person who is interested in an estate including an applicant for the estate grant could apply to set aside the notice of dispute pursuant to Rule 25-10(10). The court may remove the notice of dispute if the court determines that the filing is not in the best interests of the estate (Rule 25-10(11)).

Rule 25-10 — Notices to Dispute

(1)To oppose the issuance of an estate grant, an authorization to obtain estate information or an authorization to obtain resealing information or to oppose the resealing of a foreign grant, a person to whom documents have been or are to be delivered under Rule 25-2 (2) must file a notice of dispute that accords with subrule (3) of this rule before the earlier of:

(a) the issuance of an authorization to obtain estate information or an authorization to obtain resealing information, and

(b) the issuance of an estate grant or the resealing of a foreign grant.

[en. B.C. Reg. 149/2013, s. 8.]

Only one notice of dispute to be filed

(2)A person must not file more than one notice of dispute in relation to any one estate.

[en. B.C. Reg. 149/2013, s. 8.]

Contents of notice to dispute

(3)A notice of dispute referred to in subrule (1) must be in Form P29, must provide an address for service of the disputant, which address for service must be an accessible address that complies with Rule 4-1 (1), and must disclose

(a) that the disputant is a person to whom documents have been or are to be delivered under Rule 25-2 (2), and

(b) the grounds on which the notice of dispute is filed.

[en. B.C. Reg. 149/2013, s. 8.]

Amendment of notice to dispute

(4)A notice of dispute may be amended once without leave of the court, and after that only with leave of the court.

[en. B.C. Reg. 149/2013, s. 8.]

(5)Rule 6-1 (2) and (3) applies to an amendment of a notice of dispute without leave of the court and, for that purpose, a reference in that rule to a pleading is deemed to be a reference to the notice of dispute.

[en. B.C. Reg. 149/2013, s. 8; am. B.C. Reg. 44/2014, Sch. 1, s. 8 (a).]

Renewal of notice of dispute

(6)The court may renew a notice of dispute, for any period the court considers appropriate, as follows:

(a) if the application for renewal is brought before the notice of dispute ceases to be in effect, if the court is satisfied that it is appropriate to make an order for renewal;

(b) if the application for renewal is brought after the notice of dispute ceases to be in effect, if the court is satisfied that

(i) there were good reasons that the application for renewal could not be brought before the notice of dispute ceases to be in effect,

(ii) substantial prejudice would be suffered by the person seeking renewal of the notice of dispute if the order for renewal is not made, and

(iii) no other person interested in the estate would suffer substantial prejudice if the order for renewal is made.

[en. B.C. Reg. 149/2013, s. 8.]

Application for renewal of notice of dispute

(7)Subject to Rule 8-5 (6), an application to renew a notice of dispute filed in relation to an estate must be made on notice to

(a) each person who has submitted for filing a submission for estate grant, or a submission for resealing, in relation to the estate,

(b) each person who has filed a notice of dispute in relation to the estate, and

(c) any other interested person to whom the court directs notice be given.

[en. B.C. Reg. 149/2013, s. 8.]

No grant while notice to dispute in effect

(8)While a notice of dispute is in effect in relation to the estate of a deceased, the registrar must not, with respect to that estate,

(a) issue an estate grant, an authorization to obtain estate information or an authorization to obtain resealing information, or

(b) reseal a foreign grant.

[en. B.C. Reg. 149/2013, s. 8.]

Withdrawal of notice of dispute

(9)A disputant may withdraw a notice of dispute by filing a withdrawal of notice of dispute in Form P30.

[en. B.C. Reg. 149/2013, s. 8.]

Application to remove notice of dispute

(10)A person who is interested in an estate in relation to which a notice of dispute has been filed, including, without limitation, an applicant for an estate grant or for the resealing of a foreign grant, may apply on notice to the disputant for an order removing the notice of dispute.

[en. B.C. Reg. 149/2013, s. 8.]

Grounds on which notice to dispute may be removed

(11)On an application under subrule (10), the court may, by order in Form P31, remove a notice of dispute if the court determines that the filing is not in the best interests of the estate.

[en. B.C. Reg. 149/2013, s. 8.]

When notice of dispute ceases to be in effect

(12)A notice of dispute in relation to an estate ceases to be in effect as follows:

(a) subject to paragraph (b), on the date that is one year after the date on which the notice of dispute was filed;

(b) if the notice of dispute has been renewed under subrule (6), at the end of the renewal period;

(c) if the notice of dispute is withdrawn by the disputant under subrule (9);

(d) if the will in relation to which the notice of dispute relates is proved in solemn form;

(e) if the court orders, under subrule (11) or otherwise, that the notice to dispute is removed.

Ensuring Independent Legal Advice

Ensuring Independent Legal Advice

Many transactions are set aside in British Columbia by the courts on the basis that true independent legal advice was not obtained by the person making a radically changed will or transferring an asset for little or no consideration.

A lawyer’s duty in such situations is to be the vanguard of providing true Independent legal advice (ILA) so as to protect  a victim of  undue influence or lack of mental capacity being taken advantage of by an unsavory character.

Thus it is critically important for the lawyer to ensure that he or she is in a position to provide truly independent legal advice to the client.

At any given time I have a case where that has not been the case.

For example a lawyer takes instructions form a daughter of the deceased that her mother wishes to transfer her property into joint tenancy with the daughter.

The lawyer meets with them both at the same time, confirms the instructions with the mother in the presence of the daughter, and transfers the property into joint tenancy for m$1 consideration, and renders the account to the daughter.

The client in that case is the daughter, not the mother. The mother has in effect given away all of her assets to the daughter without the benefit of any legal advice, let alone independent legal advice.

The mother in that scenario might well have balked at doing such had she received true independent legal advice. The lawyer acting for both the daughter and the mother is in a conflict of interest.

7 Reasons a Lawyer Cannot Provide Independent Legal Advice

Accordingly, a lawyer is not in a apposition to provide true independent legal advice if any one of the following is present (not an exhaustive list):

  1. The legal fees are being paid by the person taking advantage under the relationship rather than the person causing the transfer or changing will to be made;
  2. The lawyer does not have a full understanding of the clients total assets, income and expenses and is unable to assess a discuss with the client the extent to which it may leave them vulnerable or impoverished.Detailed notes of the financial situation of the possible victim should be entered contemporaneously.;
  3. The lawyer has a prior professional relationship with the person taking advantage;
  4. Some or all of the instructions have come from the party taking advantage;
  5. The lawyer has a past relationship such as personal, friendship, or the like with the party taking advantage;
  6. The lawyer is acting in a purported joint retainer with the person taking advantage;
  7. The party taking advantage is present at the time the advice or instructions are given or when the documents are signed

If any of the after said situations are present, then it is incumbent on the lawyer to refer the client out to another lawyer for true independent legal advice without any involvement of the party taking advantage.

There is a failure on the part of the lawyer to ask probing questions as to the reason for the will change or transfer of property for no consideration and to ensure that the client attains a true and complete understanding of all its implications.

In my experience as a BC Lawyer,  after a full and complete understanding is brought to bear, clients will often balk at entering into the change of will or property transaction. It is common that elderly persons are often pushed into a transaction based on poor explanation or untruths about other interested parties.

Lower Courts Bound By Higher Courts (Stare Decisis)

Lower Courts Bound By Higher Courts (Stare Decisis)

Most people likely know that higher courts such as appeal courts bind the decisions of lower courts through precedents. The legal term is stare decisis (to adhere to precedents), and the legal rationale is that like decisions should be decided alike so as to give more certainty to the outcome of the case, based on established legal principles.

The decision of Black v Owen 2017 ONCA 397 of the Ontario Court of Appeal discusses this hallmark of our common law legal system:

42      As the Supreme Court emphasized in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 38: “Certainty in the law requires that courts follow and apply authoritative precedents. Indeed, this is the foundational principle upon which the common law relies.” Failure to adhere to this core principle is inconsistent with the principle of stare decisis, the need for certainty and stability in the administration of justice, and the orderly development of the law.

43      Consistent with this principle, the Supreme Court has held that a trial judge’s authority to depart from binding precedent is limited. Bedford instructs, at para. 42:

[A] trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue. Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.

See also Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 44. Further, the Supreme Court has rejected the notion of the anticipatory overruling by a lower court of a binding authority by a higher court: Canada v. Craig, 2012 SCC 43, [2012] S.C.R. 489.

44      In this case, the respondents do not contend that either of the Bedford conditions, set out above, were satisfied so as to justify departure from the majority opinion in Amberwood.

45      The Bedford conditions are not met here. First, unlike Bedford and Carter, this is not a case involving s. 7 of the Charter of Rights and Freedoms. Second, no new legal issue concerning the positive covenants rule or the possible exceptions to that rule, that were not addressed in Amberwood, was raised in this case. Third, no significant post-Amberwood developments in the law of Ontario had occurred. I note, in particular, that the extent to which the decision of the English Court of Appeal in Wilkinson warrants importation of the benefit and burden exception into Ontario law, if at all, was a matter for determination by this court. Neither Wilkinson in England nor Wentworth Condominium Corporation in Ontario permits a lower court judge to prefer the minority, over the majority, opinion of this court in Amberwood.

46      To summarize, in a case like this one, a judge of a lower court may not decline to follow a binding precedent of a higher court on the ground that he or she disagrees with it or because, in his or her view, it appears to have been overtaken by subsequent decisions of a lower court in the same jurisdiction, or by jurisprudential developments in another jurisdiction. In this case, what the Appeal Judge should have done was follow and apply the majority decision in Amberwood and provide reasons why she viewed it as problematic, rather than decline to follow it: see, for example, in the constitutional context, Craig, at para. 21.

The Principles of Moot Court Cases

The Principles of Moot Court Cases

Moot court cases occur when a determination is sought on a matter which when decided by the court will not have any practical effect on the existing dispute such as the legal issue no longer exists.

The courts do however have discretion when the moot case is important enough to hear the case such as occurred in DaGG V Cameron Estate 2017 ONCA 366  where there was a strong public issue that required determination.

The General Principles of Moot Court Cases

31      Where, as here, the dispute between the parties has disappeared, the court still retains the discretion to proceed to hear the merits of the appeal: Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 (S.C.C.), at p. 353.

32      The exercise of that discretion is guided by a consideration of the presence or absence of the three rationales underpinning the mootness doctrine:

(i) whether the issues can be well and fully argued by parties who have a stake in the outcome;

(ii) the concern for judicial economy; and

(iii) the need for the court to remain alive to the proper limits of its law-making function in order to avoid intrusions into the role of the legislative branch: Borowski, at pp. 358-63; Ontario Provincial Police Commisioner v. Mosher, 2015 ONCA 722, 330 C.C.C. (3d) 149 (Ont. C.A.), at paras. 31-32. The interplay amongst the three rationales was described in Borowski at p. 363:

In exercising its discretion in an appeal which is moot, the Court should consider the extent to which each of the three basic rational for enforcement of the mootness doctrine is present. This is not to suggest that it is a mechanical process. The principles identified above may not all support the same conclusion. The presence of one or two of the factors may be overborne by the absence of the third, and vice versa.

Application of the principles in Moot Court Cases

33      Applying these criteria to this appeal, I have no concern about the absence of an adversarial relationship. Counsel for both parties argued the appeal with the same vigour as if the matter were not moot.

34      Regarding the factor of judicial economy, I am persuaded that although this is a case capable of repetition, it is one that could be evasive of review by this court given the costly three-stage appeal process involved: Borowski, at pp. 360, 364; Mosher, at para. 34

35      As well, there exists a strong public interest in the resolution of the legal issues raised by this appeal: Tamil Co-operative Homes Inc. v. Arulappah (2000), 49 O.R. (3d) 566 (Ont. C.A.), at paras. 25 and 26. The parties point to the long-standing practice in this province of including in separation agreements and court spousal and child support orders provisions requiring a payor spouse to maintain life insurance coverage and name the recipient spouse and children as beneficiaries under the policy. The effect of the Divisional Court’s decision is to expose such life insurance proceeds to competing claims under the SLRA from other children and former or subsequent spouses of the deceased payor. The implications of the Divisional Court decision will be felt well beyond the boundaries of this case.

36      Finally, the parties are not asking the court to decide an abstract question and thereby intrude improperly into the legislative sphere: Borowski, at p. 365. The issues raised by the parties are grounded in the specific facts in the record. The appeal was fully argued by interested parties based on a complete record, which puts the court in a position to make a fully informed decision on the issues of public importance raised by the appeals.

37      For these reasons, I would exercise our discretion to determine the issues raised in the appeal despite its mootness.