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.

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.

Dismissal For Delay (Want of Prosecution)

Dismissal For Delay (Want of Prosecution)

PMC Builders & Developers Ltd v Country West Construction Ltd 2009 BCCA 535 is one of the leading cases in BC for dismissal of a court action for delay, also known as want of prosecution.

It was recently followed in an estate case Re Strom estate 2017 BCSC 824 where the court declined to dismiss the case for delay in proceeding with the case to resolution.

It is a fact that a certain number of court cases are commenced and then never set for trial and sit for literally years without being resolved. It is open to the opposing party to apply to dismiss such an  action for delay. The courts will not dismiss an action for delay lightly and will review a number of criteria, especially any prejudice caused to the opposing party by the delay.

The test essentially is on balance is it in the interest of justice to dismiss the case for delay.

Dismissal For Delay: The Law

Lengthy delay by a plaintiff in bringing a claim to trial must be carefully considered in the context of evidence presented by both sides as to actual prejudice to the defendant in presenting its case at trial. Any prejudice will only be material to the extent that it was caused by the plaintiff’s inordinate delay, not by other events.

20      As Esson J.A. said in Tundra Helicopters Ltd. v. Allison Gas Turbine, 2002 BCCA 145, 98 B.C.L.R. (3d) 238 (B.C. C.A.), at para. 37: “It is no light matter to dismiss an action for want of prosecution.” He continued:
As Diplock L.J. said in Allen v. Sir Alfred McAlpine & Sons Ltd., [[1968] 2 Q.B. 229 (C.A.)] at p. 259:
The application is not usually made until the period of limitation for the plaintiff’s cause of action has expired. It is then a Draconian order and will not be lightly made. It should not in any event be exercised without giving the plaintiff an opportunity to remedy his default, unless the court is satisfied either that the default has been intentional and contumelious, or that the inexcusable delay for which the plaintiff or his lawyers have been responsible has been such as to give rise to a substantial risk that a fair trial of the issues in the litigation will not be possible at the earliest date at which, as a result of the delay, the action would come to trial if it were allowed to continue.
21      Country West brought its motion in the present case well before expiration of the applicable limitation period in contract. I will return later to this aspect of the matter.
22      The appellant offered no explanation for the delay in prosecuting its claims and, as I have said, conceded before the chambers judge that the delay was inordinate and not excusable. I would not say, however, that the appellant’s conduct was contumelious. The appellant was merely
23      In addition to Tundra Helicopters , the leading cases in this court on R. 2(7) are Irving v. Irving (1982), 38 B.C.L.R. 318 (B.C. C.A.) and Busse v. Robinson Morelli Chertkow (1999), 63 B.C.L.R. (3d) 174 (B.C. C.A.).
24      In Irving, the action was brought by a wife against her husband for an interest in her husband’s business. The action was founded in partnership and quantum meruit. It remained dormant for ten years until the husband sought dismissal for want of prosecution. This was denied by a chambers judge but granted on appeal. The evidence was that the delay was a deliberate tactic in the hope that the law would change. Eventually the law did change in the case of Becker v. Pettkus, [1980] 2 S.C.R. 834 (S.C.C.), and the wife sought an amendment in her action to plead a constructive trust remedy. This court emphasized that the delay was deliberate and tactical as opposed to being negligent or caused by illness or impecuniosity. In addition, the court found that there was a direct conflict in the evidence of the husband and the wife as to the involvement of the latter in the business and that the husband was denied the testimony of several independent witnesses who had died and who would likely have been able to give material evidence in the area of conflict. There was a finding of specific prejudice.
25      In Irving, the court adopted the principles governing an application for dismissal for want of prosecution – delay and prejudice – as discussed in the Allen v. Sir Alfred McAlpine & Sons Ltd. [[1968] 2 Q.B. 229 (Eng. C.A.)] case in the passage I have already set out. At p. 328, Seaton J.A. said this:
The demonstration of inordinate delay, inexcusable delay and serious prejudice does not lead necessarily to dismissal. Those three factors are only the primary considerations; all of the circumstances must be considered. It is still for the courts to decide “whether or not on balance justice demands that the action should be dismissed”. Salmon L.J. in Allen v. Sir Alfred McAlpine & Sons Ltd. All of the statements of law are subject to the overriding principle that essential justice must be done. (See Freeman J.A., as he then was, in Ross and Ross v. Crown Fuel Co. Ltd. et al (1962), 41 W.W.R. 65 at 88, 37 D.L.R. (2d) 30 (Man.C.A.).)
26      In Busse, the action was framed in misrepresentation, breach of trust and breach of fiduciary duty against several defendants. The events giving rise to the litigation occurred in the early- to mid-1980s. The action was commenced in 1991 and more than six years later the defendants brought motions to dismiss for want of prosecution. The chambers judge adjourned the applications for consideration by the trial judge. In so doing, he applied obiter dictum given by Lambert J. A. in concurring reasons in Irving. On appeal, this court applied the statement of the law given by Seaton J. A. in Irving with reference to what was said in Allen. The delay was inordinate and inexcusable. It was intentional and for tactical purposes. There was “a strong likelihood of actual prejudice” to the defendants in presenting their cases at trial. The action was dismissed.
27      These cases suggest to me that a chambers judge charged with the hearing of an application for dismissal of an action for want of prosecution is bound to consider the following:
(1) the length of the delay and whether it was inordinate;
(2) any reasons for the delay either offered in evidence or inferred from the evidence, including whether the delay was intentional and tactical or whether it was the product of dilatoriness, negligence, impecuniosity, illness or some other relevant cause, the ultimate consideration being whether the delay is excusable in the circumstances;
(3) whether the delay has caused serious prejudice to the defendant in presenting a defence and, if there is such prejudice, whether it creates a substantial risk that a fair trial is not possible at the earliest date by which the action could be readied for trial after its reactivation by the plaintiff; and
(4) whether, on balance, justice requires dismissal of the action.
28      I consider the fourth question to encompass the other three and to be the most important and decisive question.

Costs: The Standard of Review

Costs: The Standard of Review

The BC Court of Appeal in Giles v Westminster Savings Credit Union 2010 BCCA 282 reviewed the standard of awarding costs and the various purposes for an award of costs.

The case was recently followed in Kyle Estate v Kyle 2017 BCSC 752 which stated inter alia  that the discretion to order the payment of double costs must be exercised in a just, principled and consistent way: Giles v. Westminster Savings Credit Union (2010, 5 B.C.L.R. (5th) 252 at para. 88 and such an order is permissive, not mandatory: Buttar v. Di SpiritoI, 2009 BCSC 72 at para.

Standard Review of Costs

72      Before considering the various challenges to the trial judge’s costs orders, I note that such orders are discretionary and appellate review is limited in scope. As Arbour J. stated in Hamilton v. Open Window Bakery Ltd. (2003), 2004 SCC 9, [2004] 1 S.C.R. 303 (S.C.C.), “[a] court should set aside a costs award on appeal only if the trial judge has made an error in principle or if the costs award is plainly wrong”: para. 27. More recently, in Victoria (City) v. Adams, 2009 BCCA 563, 313 D.L.R. (4th) 29 (B.C. C.A.), this Court said:

[180] The general rule with respect to costs is that they follow the event and are assessed on a party and party basis unless the court otherwise orders: Rules 57(9) and 57(1) of the Rules of Court. Courts retain the discretion to depart from the general rule where the circumstances justify a different approach: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371 at para. 22. It is a broad discretion, and this Court will only interfere “if there is misdirection or the decision is so clearly wrong as to amount to an injustice”: Agar v. Morgan, 2005 BCCA 579 at para. 26.

Misdirection may include making an error as to the facts, taking into consideration irrelevant factors, or failing to take into account relevant factors, all of which would amount to an error in principle: Sutherland v. Canada (Attorney General), 2008 BCCA 27, 77 B.C.L.R. (4th) 142 (B.C. C.A.) at para. 24.

73      However, the discretion with respect to costs is not wholly unencumbered. As Mr. Justice Seaton stated in Royal Trust Corp. of Canada v. Clarke (1989), 35 B.C.L.R. (2d) 82 (B.C. C.A.) at 88:

Costs are in the discretion of the court, but it does not follow that the judge is to do whatever pleases him at the moment. Rules and decisions offer guidance that should ensure that different judges in similar cases make similar decisions.

74      The purposes for which costs rules exist must be kept in mind in determining whether appellate intervention is warranted. In addition to indemnifying a successful litigant, those purposes have been described as follows by this Court:

• “Deterring frivolous actions or defences”: Houweling Nurseries Ltd. v. Fisons Western Corp. (1988), 37 B.C.L.R. (2d) 2 (B.C. C.A.), leave ref’d, [1988] 1 S.C.R. ix;

• “To encourage conduct that reduces the duration and expense of litigation and to discourage conduct that has the opposite effect”: Skidmore v. Blackmore (1995), 2 B.C.L.R. (3d) 201 (B.C. C.A.) at para. 28;

• “Encouraging litigants to settle whenever possible, thus freeing up judicial resources for other cases: Bedwell v. McGill, 2008 BCCA 526, 86 B.C.L.R. (4th) 343 (B.C. C.A.) at para. 33;

• “To have a winnowing function in the litigation process” by “requir[ing] litigants to make a careful assessment of the strength or lack thereof of their cases at the commencement and throughout the course of the litigation”, and by “discourag[ing] the continuance of doubtful cases or defences”: Catalyst Paper Corp. v. Companhia de Navegação Norsul, 2009 BCCA 16, 88 B.C.L.R. (4th) 17 (B.C. C.A.) at para. 16.

75      Lastly, it must be also remembered that “the person who seeks to displace the usual rule [as to costs] has the burden of persuading the judge that the rule should be displaced”: Grassi v. WIC Radio Ltd. 2001 BCCA 376, 89 B.C.L.R. (3d) 198 (B.C. C.A.) at para. 24.


The Rising Trend of Self Represented Litigants

Self Represented Litigants

The Ontario Court of Appeal in Moore v Apollo & Beauty Care 2017 ONCA 383 discussed the increasing trend of self  represented litigants appearing before the courts.

Self represented litigants present a problem for both the Court and any opposing counsel due to their general unfamiliarity with the procedures of court.

The Court stated:

[41]            The new reality of civil litigation in public courts is the significant number of parties who are not represented by a lawyer, but present their own cases. Presiding over a trial where a party is not represented by a lawyer poses distinct challenges for a trial judge, and also brings with it distinct responsibilities.

[42]            Both the challenges and responsibilities are succinctly described in the Statement of Principles on Self represented Litigants and Accused Persons (the “Statement”) issued by the Canadian Judicial Council in September 2006. The Supreme Court of Canada endorsed the Statement in Pintea v. Johns, 2017 SCC 23.

[43]            The main challenge faced by a trial judge when a party is not represented by a lawyer lies in the difficulty of managing an adversarial proceeding when one party lacks formal training in the law and its procedures. As described by the Statement, at p. 3:

Self represented persons are generally uninformed about their rights and about the consequences of choosing the options available to them; they may find court procedures complex, confusing and intimidating; and they may not have the knowledge or skills to participate actively and effectively in their own litigation.

[44]            While self represented persons vary in their degree of education and sophistication, I think it safe to say that most find court procedures “complex, confusing and intimidating.” That state of affairs gives rise to the responsibility of judges to meet the need of self-represented persons for “simplicity” and to provide “non-prejudicial and engaged case and courtroom management” to protect the equal rights of self-represented persons to be heard: Statement, pp. 4 and 6.

[45]            The Statement, at p. 7, offers specific advice to judges about how to meet their responsibilities to self-represented persons in the courtroom environment:

Judges have a responsibility to inquire whether self represented persons are aware of their procedural options, and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications, before the self-represented person makes critical choices.

In appropriate circumstances, judges should consider providing self-represented persons with information to assist them in understanding and asserting their rights, or to raise arguments before the court.

Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons. 





Court Directions

Court Directions

Biely Estate v CNIB 2017 BCSC 788 involved an application for Court directions to be followed with respect to three competing wills of a deceased.

The application was brought pursuant to Supreme Court Civil Rule 25-14(8)(a) and sought directions that the litigation only deal with the proof in solemn form of Geraldine Biely’s will dated September 25, 2014  and not the counterclaim dealing with two previous wills of the deceased.

Supreme Court Civil Rule 25-14(8)(a) provides as follows:

(8) Without limiting any other power of the court under this or any other Part of these Supreme Court Civil Rules, the court may, on its own motion or application, give directions concerning the procedure to be followed in any matter under this Part and, without limiting this, may give directions respecting any of the following:

(a) the issues to be decided;

(16) The directions sought by the plaintiffs are, essentially, an application to have the subject matter of the counterclaim of the Litzky Defendants dealt with separately from the plaintiffs’ proof of will in solemn form proceeding with respect to the 2014 Will. Pursuant to Rule 3-4, a counterclaim is to be heard at the same time as the main action, unless the court orders to the contrary (Pacheco v. Degife, 2014 BCSC 1570, at para. 200). Under Rule 3-4(7.1) the court may order that the counterclaim be struck out or tried separately or may make any other order it considers will further the object of the Supreme Court Civil Rules.

The Court ordered that the counter claim be severed and that the trial proceed firstly on the proff of solemn form action only.

[69] Guidelines that focused attention more keenly on the efficacy of the trial process were helpfully laid out in O’Mara v. Son, Kim et al., 2007 BCSC 871[O’Mara] at para. 23:

1. whether the order sought will create a saving in pre-trial procedures;

2. whether there will be a real reduction in the number of trial days taken up by the trial being heard at the same trial;

3. whether a party may be seriously inconvenienced by being required to attend a trial in which the party may have a marginal interest;

4. whether there will be a real saving in expert’s time and witness fees;

5. whether one of the actions is at a more advanced stage than the other;

6. whether the order sought will result in delay of the trial of any one of the actions and, if so, whether any prejudice which a party might suffer as a result of that delay outweighs the potential benefits which a consolidated trial might otherwise have;

7. the possibility of inconsistent findings and common issues resulting from separate trials.

[70] Severance may well be appropriate where the determination of one issue will render another one moot: Lawrence v. ICBC, 2001 BCSC 1530[Lawrence].

[71] The judicial discretion to sever trials or hearings is to be exercised sparingly: Morrison-Knudsen Co. v. British Columbia Hydro & Power Authority, 1972 CarswellBC 62, 24 D.L.R. (3d) 579 (S.C.); Lawrence at para. 43. The test for severance is not applied in a vacuum; it is to be considered against the backdrop of the nature of the particular case at hand: Wirtz v. Constantini, 137 D.L.R. (3d) 393, 1982 CarswellBC 588 (S.C.). Because the determination involves an individualized assessment of the unique case before the Court, there is no closed list of uniformly applied considerations that inform the exercise of the Court’s discretion.

22      The court went on to provide the following comments about Clark v. Nash, [1986] B.C.J. No. 1655 (S.C.) aff’d [1987] B.C.J. No. 304 (C.A.) [Clark]:

[83] . . . there is case authority that has placed some limitation on the nature of claims that can properly be included in a counterclaim to a proof of will in solemn form proceeding. In Clark v. Nash, [1986] B.C.J. No. 1655 (S.C.) aff’d [1987] B.C.J. No. 304 (C.A.) [Clark], the Court held that the procedure and hearing involved in a proof of will in solemn form proceeding should be limited to the aspects of the will execution, testamentary capacity, want of knowledge and fraud. The Court reasoned that a counterclaim to vary a will that is alleged to be invalid is therefore premature, and hearing it at the same time or before the action involving the proof of the challenged will is neither just nor convenient.

Offers to Settle Double Costs

Offers to settle double costs

Sim v Sim estate 2017 BCSC 345 discussed offers to settle and rejected an award for double costs finding that the offer was one that ought not to have reasonably been accepted as it required the plaintiff to give up the claim entirely while providing no rationale.

[1]             The plaintiffs were unsuccessful in seeking a variation of the will of the late Alexander William Sim, pursuant to s. 2 of the Wills Variation Act, R.S.B.C. 1979, c. 435. Costs were awarded to the defendants. The defendants now seek double costs under Rule 9-1(5) of the Supreme Court Civil Rules.

Settlement Offers

[4]             By letter dated August 11, 2015,  the plaintiffs offered to settle all claims if the defendants: paid them $250,000; made a life insurance policy, under which the plaintiffs were beneficiaries, irrevocable; agreed to continue to pay the premiums on the policy and paid the plaintiffs’ costs and disbursements at Scale B. The plaintiffs’ offer was open for 30 days.

[5]             On August 13, 2015, the defendants rejected the plaintiffs’ offer and countered with an offer that Mrs. Sim would agree to make the life insurance policy irrevocable, the plaintiffs would agree to make the future premium payments and each party would bear their own costs. The defendants’ offer remained open until it was revoked on December 11, 2015 which was after the trial had commenced but before it finished.

[6]             Based on Mrs. Sim’s life expectancy the cost to the plaintiffs of agreeing to pay the future life insurance premiums would have been $20,857. The plaintiffs did not respond to that offer by the defendants.

[7]             At the Trial Management Conference on September 9, 2015, the presiding judge recommended that the parties try to settle the case. By email on September 10, 2015 the defendants’ counsel suggested to plaintiffs’ counsel that if he responded to his clients’ offer they may reach a settlement. On September 14, 2015 the defendants’ counsel emailed plaintiffs’ counsel and said he looked forward to a response to his offer on August 13, 2015 and a possible settlement without trial.

[8]             On the same day, plaintiffs’ counsel, in effect, rejected the defendants’ offer of August 13th and the case proceeded to trial.


[10]         In Hartshorne v. Hartshorne, 2011 BCCA 29, our Court of Appeal offered some guidance when a trial court is asked to award double costs.

[11]         At para. 25 the Court of Appeal states:

[25] An award of double costs is a punitive measure against a litigant for that party’s failure, in all of the circumstances, to have accepted an offer to settle that should have been accepted. Litigants are to be reminded that costs rules are in place “to encourage the early settlement of disputes by rewarding the party who makes a reasonable settlement offer and penalizing the party who declines to accept such an offer. (Authorities are cited)

[12]         The Court goes on to state, at para. 27:

[27] The first factor – whether the offer to settle was one that ought reasonably to have been accepted – is not determined by reference to the award that was ultimately made. Rather, in considering that factor, the court must determine whether, at the time that offer was open for acceptance, it would have been reasonable for it to have been accepted…the reasonableness is to be assessed by considering such factors as the timing of the offer, whether it had some relationship to the claim (as opposed to simply being a “nuisance offer”), whether it could be easily evaluated, and whether some rationale for the offer was provided.

[13]         I do not agree with the plaintiffs that the results of the trial were mixed. All of the plaintiffs’ claims were dismissed with costs.

[14]         The order that Mrs. Sim continue to pay the premiums on the life insurance policy and make the policy irrevocable simply confirmed what she had agreed to do in her testimony. As defendants’ counsel said, the court put her position “in stone”.

[15]         However, I do not consider the defendants’ offer to have been one that ought reasonably to have been accepted by the plaintiffs. In assessing reasonableness, I cannot consider the ultimate decision in the case. At the time of the defendants’ offer they were essentially asking the plaintiffs to give up their claim entirely and, in addition, pay the future premiums for the life insurance policy. Accepting the offer would have required the plaintiffs to completely accept the defendants’ position. Furthermore, no rationale was provided by the defendants to the plaintiffs for the terms of the offer.

[16]         In the end result the defendants’ application for double costs is dismissed and they remain entitled to costs at Scale B.

Who Can Be an Expert Witness?

Who Can Be an Expert Witness?

The complexity  litigation issues  has increased the need and use of expert witnesses, and just who can be one is sometime an issue in itself.

Some of the experts that I have  utilized over years of estate litigation are geriatric psychiatrists, accountants and forensic auditors, and on occasion hand writing experts.

Very often the parties present evidence by the expert that they wish to call as to qualifications and experience testifying as an expert and then the cross examination, before the court rules on whether the evidence will be accepted as expert opinion.

Grewal v Khakh 2016 BCSC 2055 recently adopted the long established rule as first set out in Regina v Bunnis ( 1964) 44 C.R. 262 and adopted by the BCCA in Regain v Kinnie  1989 CarswellBC 205 at paragraph 12:

.. The test to be applied by the judge was, if I may say with respect, correctly stated by Tyrwhitt-Drake C.C.J. in Regina v. Bunniss (1964), 44 C.R. 262 at 264. The judge was stating the effect of the definition of an expert witness given by Lord Russell of Killowen C.J. in The Queen v. Silverlock, [1894] 2 Q.B. 766. Tyrwhitt-Drake C.C.J. said this:

From this it is clear that so long as a witness satisfies the Court that he is skilled, the way in which he acquired his skill is immaterial. The test of expertness, so far as the law of evidence is concerned, is skill, and skill alone, in the field in which it is sought to have the witness’s opinion. If the Court is satisfied that the witness is sufficiently skilled in this respect for his opinion to be received, then his opinion is admissible.