Tag: Procedures

Executors often do not know what to do and may be faced with decisions that are difficult to make without Court guidance. Where there is no certainty in the law, and no consensus amongst the beneficiaries affected, the Executor has recourse to the court by way of an application for directions under s. 86 of the Trustee Act.

Chapter 9 of the BC Probate and Estate Administration Practice Manual (CLE, 2nd Ed), gives examples of the court declining to give directions include:

determining what property should be included in the estate;
the time or price of the sale of shares;
the distribution of the estate on an intestacy; and
whether a respondent was the common law spouse of the deceased.
In Re Lohn Estate (1991) 41 E.T.R. 159 (B.C.S.C), the court declined making an order approving a scheme to minimize taxes and subsequently refused to allow the trustees to “unload the responsibility they have assumed, as trustees, upon the court”.

In Re Royal Trust Co. (1962), 39 W.W.R. 638 (B.C.S.C), the court held that its jurisdiction is restricted to questions of “management or administration” and will not determine question of ownership or other matters “affecting the rights of the parties”.

Examples of situations in which the court did give advice and directions include:

the proper disposition of interest earned on a hold back for taxes;
the extent of a discretion or power;
determining the beneficiary under an RRSP where there was a general revocation clause in the will;
approving a resettlement of a trust;
whether terms of a will were against public policy;
whether a trust was charitable;
whether the doctrine of acceleration applied in a disclaimer situation; and
where trustees cannot reach a unanimous decision.

 

 

 

McIntyre V Richardson Estate 2012 BCSC 1347 provides a good summary of the law of the related legal principles of res judicata, issue estoppel, and abuse of process .

They were also  thoroughly canvassed by Madam Justice Ballance in Tylon Steepe Homes Ltd. v. Pont, 2011 BCSC 385 at paras. 52 to 56:

[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] 1 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.

[44] Later in her reasons, Madam Justice Ballance addressed the relationship between res judicataand abuse of process. She said this at paras. 79 to 80:

[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 of their treatment of the judicial process.

[45] Ballance J. cited the decision of Madam Justice Arbour in the leading Supreme Court of Canada decision concerning abuse of process, that is Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at para. 43:

…the primary focus of the doctrine of abuse of process is the integrity of the adjudicative functions of courts. …the focus is less on the interest of parties and more on the integrity of judicial decision making as a branch of the administration of justice…. When that is understood, the parameters of the doctrine become easier to define, and the exercise of discretion is better anchored in principle.

 

Court Costs In Estate Litigation:

Jung v. Lee Estate, [2007] B.C.J. No. 2592 provides a useful summary of costs in estate litigation:

The costs follow the event unless the court otherwise orders.
If the cause of the litigation originated from the conduct or errors of the testator (i.e. unclear wording or validity of the will), then the costs of all parties will generally be paid from the estate on a full indemnity basis.
If the action relates to questions of capacity or allege undue influence or fraud, the court will not normally make an order for costs against the unsuccessful party.
Where the proceedings are adversarial in nature (relief litigation) costs follow the event.
All cost awards are subject to the court’s discretion and an overriding test of reasonableness.

The phrase falsa demonstratio (non nocet cum de corpore constat), is a legal maxim that means a false description doesn’t void a document if the intent is clear.

It is sometimes used to correct an obvious mistake.

The maxim falsa demonstratio, defined in Black’s Law Dictionary, 8thed by Bryan Garner (St. Paul, MN: Thomson West: 2004) as follows:

A false designation; an erroneous description of a person or thing in a legal instrument. Generally, a simple error in description, grammar, or spelling will not void an instrument or even a single provision in it (such as a bequest by will).

 

The principle of falsa demonstratio non nocetmeans that if, on considering the language of a will with the aid of any admissible extrinsic evidence, the court comes to the conclusion that the testator intended to pass something and can determine what that something is, then the fact that the testator gave it a wrong description in his will does not prevent the will taking effect in regard to the subject matter intended by the testator. The principle may be applied in whatever part of the description the error occurred …

“Thus, if T makes a specific gift of certain stock, and T at the date of his will possessed no such stock but possessed other stock which the court decides was meant, the latter stock passes under the gift despite the false description.

 

“Generally, full effect will be given to all terms of a description, whether general or specific. In some cases, one of the terms used may describe the property with certainty, for example, the metes and bounds description, and the rest add a description which is not true, for example, a wrong lot number. In such a case, the untrue portion will be rejected. This is the maxim,falsa demonstratio non nocet.

“Therefore, where a description of lands included the qualifying words ‘known as the Cornish town reservation’ and they were inaccurate, they were rejected as a falsa demonstratio.

“In (a case known as) Pitman v Henley, the vendor agreed to sell a field. In the deed, the field was described as being 4.5 acres, when in fact it was nine acres. The vendor later claimed that only 4.5 acres were conveyed. In finding that the whole field had been conveyed, the Court stated that the metes and bounds description which was accurate, governed, and the stated number of acres was rejected as a falsa demonstratio….”

A Lawyers Duty To Be Civil to The Court, Opposing counsel and the  Parties

What other occupation addresses their worthy court room opponent as My Learned Friend or simply My Friend?

Civility is considered an essential quality in how disputes are dealt with in the justice system.

Four reasons are often given:

The harm to the client’s case if counsel is distracted from it by having to defend himself/herself from personal attack.
If the trial isconducted in an atmosphere of hostility, this also distracts the trier of fact from the real issues in the case.
It can lengthen and delay court proceedings.
It undermines public confidence in the administration of justice.

In Regina v Dunbar, 2003 BCCA 667, the Court of Appeal reported counsel for the appellants to the Law Society for misconduct in the conduct of a series of appeals. The Court had this to say about the conduct that led them to take that step:

[330] These reasons for judgment cannot be concluded without some comment on the conduct of counsel for the four appellants; Mr. X. We have concluded that none of the four cases raised any meritorious ground of appeal. If that were all there was to these appeals, the court would have no criticism of counsel’s conduct. The administration of justice depends upon the willingness and ability of counsel to advocate difficult cases, and to raise new arguments, without fear of personal consequences. As has aptly been said, some of the best counsel work has been done in a losing cause. The courts, and public confidence in the administration of justice, depend upon counsels’ integrity, independence and courage. It is counsels’ duty to represent the unpopular client or cause by all lawful means, including the presentation of novel or innovative arguments.

[331] Regrettably, in this case, counsel’s zeal blinded him to his professional responsibilities. Mr. X presented, and relied upon, affidavit material that is unworthy of any lawyer. Our reasons show these affidavits are replete with inadmissible hearsay, opinions, speculations, argument, and the irrelevant. The affidavits are rambling, repetitive and disorganized. They contain serious allegations of unprofessional conduct and substance abuse, against another lawyer or former lawyer, all of which allegations were unfounded.

 

The Supreme Court of Canada in Dore v Barreau du Quebec 2012 SCC 12, called for lawyers to work with “dignified restraint” :

 

]”Lawyers potentially face criticisms and pressures on a daily basis. They are expected by the public, on whose behalf they serve, to endure them with civility and dignity. This is not always easy where the lawyer feels he or she has been unfairly provoked, as in this case. But it is precisely when a lawyer’s equilibrium is unduly tested that he or she is particularly called upon to behave with transcendent civility. On the other hand, lawyers should not be expected to behave like verbal eunuchs. They not only have a right to speak their minds freely, they arguably have a duty to do so. But they are constrained by their profession to do so with dignified restraint”

 

 

Waiver of Privilege

Generally speaking, any communications between a client and his or her lawyer are confidential and privileged. There are exceptions but this is the general rule, and through various means, the privilege can be “waived” , so that the other side can investigate the various documents or communications that were in issue.

 

[100] While the safeguards afforded to solicitor-client privilege are fundamental to the Canadian justice system, the privilege is not immutable. In S. & K. Processors Ltd. v. Campbell Ave. Herring Producers Ltd. (1983), 45 B.C.L.R. 218, 35 C.P.C. 146 (S.C.), McLachlin J. (as she then was) discussed the waiver of privilege at 220:

“Waiver of privilege is ordinarily established where it is shown that the possessor of the privilege:

(1) knows of the existence of the privilege; and

(2) voluntarily evinces an intention to waive that privilege.

However, waiver may also occur in the absence of an intention to waive, where fairness and consistency so require. Thus waiver of privilege as to part of a communication will be held to be waiver as to the entire communication. Similarly, where a litigant relies on legal advice as an element of his claim or defence, the privilege which would otherwise attach to that advice is lost [citation omitted].”

[101] Privilege can be waived by implication. Waiver by implication is addressed in Sopinka, Lederman & Bryant, The Law of Evidence in Canada, (2d) (Toronto: Butterworths, 1999) at 758:

As to what constitutes waiver by implication, Wigmore said:

Judicial decision gives no clear answer to this question. In deciding it, regard must be had to the double elements that are predicated in every waiver, i.e., not only the element of implied intention, but also the element of fairness and consistency. A privileged person would seldom be found to waive, if his intention not to abandon could alone control the situation. There is also the objective consideration that when his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder. He may elect to withhold or to disclose, but after a certain point his election must remain final.

[102] A party may waive privilege in an affidavit. In Souter v. 375561 B.C. Ltd. (1995), 15 B.C.L.R (3d) 213, 66 B.C.A.C. 19 (C.A.) [Souter], the defendant swore an affidavit explaining that certain errors in an affidavit were made by his solicitor. In holding that privilege had been waived, Goldie J.A. said at paras. 21-23:

Now, it is clear by this assertion Mr. Nonis deflects responsibility for the substance of the earlier affidavits, insofar as they contain the assertion that monies were advanced by the plaintiff to 561, from himself to the solicitor in question.

By necessary implication he is saying: “I gave the solicitor the correct instructions. He was responsible for a mistake which misrepresented the true state of affairs.” It does not require extended discussion to conclude that when a party identifies his solicitor as responsible for a material mistake in an affidavit sworn by that party and claims solicitor-client privilege in respect of his knowledge and that of the solicitor, he is using the confidentiality protected by privilege as a sword rather than as a shield.

In my view, this misconceives the principle which the courts have followed for centuries in protecting the confidentiality of discussions between solicitor and client, a protection considered essential to the proper administration of justice. [citations omitted]

[Emphasis added]

[103] Once a party waives solicitor-client privilege in one proceeding, that waiver applies to a second related proceeding in which the party who waived privilege is also a party: National Bank Financial Ltd. v. Potter, 2007 NSSC 22, 251 N.S.R. (2d) 124; Le Soleil Hotel & Suites Ltd. v. Le Soleil Management Inc., 2007 BCSC 1420, 161 A.C.W.S. (3d) 400.

As noted in Souter, solicitor-client privilege is a shield, not a sword.

Litigants can occasionally “ win the battle, but still lose the war”.

This can occur in situations like where the plaintiff wins the case, but the court finds that the plaintiff did not suffer damages, so a nominal amount is awarded.

Where no actual damages are proven, the remedy for a proven breach is nominal damages.

In Davidson v. Tahtsa Timber Ltd., 2010 BCCA 528, Kirkpatrick J.A., for the court, summarized the principle as follows:

[43] Unfortunately, the trial judge did not have cited to him the law relating to nominal damages, undoubtedly because the appellant held an optimistic view of success. In State Vacuum Stores of Canada Ltd. v. Phillips, [1954] 3 D.L.R. 621 at 630, 12 W.W.R. (N.S.) 489 (B.C.C.A.) [State Vacuum Stores], this Court stated:

On the question of nominal damages I feel the attention of Wood J. could not have been directed to the legal principle that, failing proof of substantial damages, he could and in the circumstances should have given nominal damages. There can be no serious doubt about this. In United Shoe Mfg. Co. v. Brunet, [1909] A.C. 330 at p. 345, Lord Atkinson said this: “As the respondents have broken their contract, the appellants must, despite the finding of the jury that they sustained no damage, be entitled to nominal damages, but to nothing more.”

And in McGee v. Clark (1927), 38 B.C.R. 156 at p. 160, Macdonald J.A. stated the point in this way: “As to consequential relief, it must be based upon breach of contract, and the resultant damages proven. None were proven and only nominal damages can be obtained. But as pointed out by the Earl of Halsbury in The “Mediana”, [1900] A.C. 113 at p. 116, the term ‘nominal damages’ does not necessarily mean ‘small damages’. I would place the amount at $50.”

 

[44] In my opinion, the appellant, having succeeded in establishing that he was wrongfully dismissed, was entitled to an award of nominal damages that I would fix at $100. This amount is consistent with the nominal award granted in State Vacuum Stores and the discussion of the amount of nominal damages by Waddams at para. 10.20. Since he did not pursue a claim for nominal costs as a “mere peg on which to hang costs” (per Maule J., Beaumont v. Greathead (1846), 2 C.B. 494 at 499), I would find that the appellant is entitled to an award of costs at scale B against Tahtsa.

Dismissal of a Court Action

The relevant principles were summarized and restated in 0690860 Manitoba Ltd. v. Country West Construction Ltd., 2009 BCCA 535 at paras. 27 – 29, as follows:

[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.

 

[29] I would not attempt to state what reasons for the delay might serve as an excuse for the plaintiff. In some cases, for example, negligence of the plaintiff’s lawyer might amount to an excuse, in others it might not. Whether the reason for the delay amounts to an excuse will depend on the circumstances of the particular case.