Appeal of a Master’s Order

Kalafchi v Yao 2015 BCCA 524 dealt with the standard of review on an appeal from a master’s order to a Supreme Court Judge.

The appeal court rejected the argument that the standard of review in such cases should always be the “clearly wrong” test.

The leadidng case Abermin Corp. v Granges Exploration (1990) 45 BCLR (2D) 188 stated:

“An appeal from a Masters order in a purely interlocutory matter should not be entertained unless the order was “clearly wrong”. However, where the ruling of the master raises questions which are vital in the final issue in the case, or results in one of those final orders which a master is permitted to make, a rehearing is the appropriate form of appeal.”

Abermin decided on the facts that a rehearing of the case was appropriate because of the potential effect of the order on the ultimate outcome at trial.

Abermiin dealt with a custody access situation of an infant, and the court recognized that the potential consequences of the Masters order could be significant and far-reaching.

The appeal court in Kalafchi commented that” on my reading of the cases of appeals of Master’s orders to which we were directed, it appears to me that whether or not our rehearing occurs depends on the chambers judge’s assessment of whether the order raises questions vital to the final issue.— More particularly we were not directed to a body of cases that suggest judges routinely treat interim access or contact orders as vital to the final issue thereby displacing the proper application of the clearly wrong test.”

Accordingly it would appear that the law is clear that the standard of review in respect of a purely interlocutory matter , which does not raise questions vital to the final issue in the case, is the clearly wrong test. Carson v Stucchi 2016 BCSC 2584 at paras 22-24.

Production of Documents: Court Ordered Affidavit to Verify

Production of Documents: Court Ordered Affidavit to Verify | Disinherited

Grandmaison v Berkenbos 2018 BCSC 1329 reviewed the law relating to when a court will order an affidavit to verify the legal test for the court to order an affidavit verifying the production of a list of documents.

The trial lasted 165 days, and involved 31 interlocutory court applications.

The Supreme Court decision was review of the Masters order that ordered production of the affidavit verifying the list of documents.

The court upheld the Masters decision on the basis that the master had reason that the appellant’s attitude to production brought reasonable cause to suspect that relevant documents may be hidden.

The test was set out in Centura Building Systems v Blackcomb Mountain development Ltd 2007 BCSC 939 at para. 38”:

“ The court has the discretion, under rule 26 (3) to order such an affidavit were document production has been clearly in adequate, or where a party has displayed a dilatory or casual attitude to document production. However, an affidavit will not be ordered were there has been a genuine dispute about what is producible. Where case involves a large number of documents. Some flexibility may be required.”
The term clearly inadequate was described in Copithorne v Benoit 2010 BCSC 130 at para. 11:

Rule 26(3) of the Rules of Court provides that a court may order that a party provide an affidavit verifying a list of documents. A useful authority on this issue is the decision Foundation Company of Canada LTD v Burnaby (1978) BCJ 557 at paragraph 7

“When some documents which are significant to the defense her claim of one party have, for whatever reason, been omitted for many list delivered under rule 26

(1) in the absence of any adequate explanation or reason for such a mission, an order directing the delinquent party to deliver an affidavit verifying the list of discovered documents ought, in my view, to be made.

The term ”dilatory or casual attitude” has been described as an attitude that gives the other parties reasonable cause to suspect that either deliberately or by willful indifference, relevant documents may be hidden from them. Synergy management Group Ltd v Walker Systems Corp. ( 1992) BCJ2109 at paragraph 15.

The court concluded that the court may order a party of record to serve an affidavit verifying a list of documents and circumstances, including:

1. when document production has been clearly inadequate meaning documents that are significant to the defense her claim of one party have been omitted for many list delivered under the rule, and there is no adequate explanation or reason for the omission; or

2. When a party has displayed a dilatory or casual attitude to document production, giving the other party reasonable cause to suspect that either deliberately or by willful indifference, relevant documents may be hidden from them

In addition, an affidavit will not be ordered where there is a genuine dispute as to what is producible.

The court concluded that suspicions by themselves are sufficient for an order pursuant to rule 7-1(8) the suspicions in that case were supported by conduct that gave the other party reasonable cause to suspect that relevant documents may be hidden from them.

Gardner v Viridis Energy Inc 2012 BCSC 1816 frame the legal test as follows. At paragraph 52:

“ Rule 7-1(8) permits a court to order that a party provide an affidavit verifying its list of documents when the absence of any adequate explanation, relevant documents have been omitted from the list of documents. Such an order may also be made were party has shown a dilatory and casual attitude to production of documents, leading to an inference that either deliberately or by willful indifference, relevant documents may be hidden”

What Constitutes Practicing Law

What Constitutes Practicing Law

Vogt v Scott 2015 BCSC 1725 reviews the essential elements of what constitutes the practice of law, as defined by the Legal Professions act.

There has been much discussion recently in the United States as to whether Michael Cohen was acting as President Trumps lawyer or not, or was merely something else, such as a “fixer”. A review of in excess of 1 million documents of Cohen’s determined  that most of them were outside the scope of practicing law and thus were not governed by the principle of solicitor client privilege.

The Vogt decision involved a dispute about a lawyers statements of accounts totaling $35,000, in which the lawyer was acting as a “parenting coordinator for the parties to assist in implementing the parenting plan for their children.

The court held that the lawyer in acting as a parenting coordinator was not in fact acting as a lawyer practicing law, as defined by the Legal Professions act, and thus the amount of the disputed accounts were not reviewable under the Legal Professions act, and instead were a matter of contract.

The same principle would apply to disputing an account rendered by a mediator.

The court defined the practice of law at paragraph 27 as follows…

Practice of Law includes:

a) appearing as counsel or advocate,
b) drawing revising or settling:
1) a petition, memorandum, notice of articles or articles under the business corporations act, or an application, statement, affidavit, minute, resolution, by law, or other documents relating to the incorporation, registration, organization, reorganization, dissolution or winding up of a corporate body;
2) a document for use in a proceeding, judicial or extrajudicial;
3) a will, deed of settlement, trust deed, power of attorney, or a document relating to a probate or a grant of administration or the estate of a deceased person
4) a document relating in any way to a proceeding under a statute of Canada or British Columbia, or
5) an instrument relating to real or personal estate that is intended, permitted or required to be registered, recorded or filed in the registry or other public office

c) Doing enactor negotiating in any way for the settlement of, or settling, claim or demand for damages;
d) agreeing to place of the disposal of another person the services of a lawyer;
e) giving legal advice;
f) making an offer to do anything referred to in paragraphs a-e;
g) making a representation by a person that he or she is qualified are entitled to do anything referred to in paragraphs a-e

Practice of law does not include:

h) any of those tasks if performed by a person who is not a lawyer or not for or in the expectation of a fee, gain or  reward, direct or indirect, from the person for whom the acts are performed
i) the drawing, revising a settling of an instrument by a public officer in the course of the officers duty;
j) the lawful practice of a Notary Public;
k) the usual business carried on by an insurance adjuster who is licensed under the financial institutions act;
l) agreeing to do something referred to in paragraph G if the agreement is made under a prepaid legal services plan, or other liability insurance program.

The definition provided by the legislation is inclusive and not exclusive.

The court concluded that the bills rendered by the parenting coordinator, even though he was a lawyer, to not represent a bill or fees, charges and disbursements to be paid to a lawyer or law firm for services provided pursuant to an agreement for the purposes of part eight of the Legal Professions act. As a consequence, the registrar had no jurisdiction, pursuant to the Legal Professions act to embark upon a review of the bill submitted.

Subject to Financing Conditions

Subject to Financing Conditions

The BC Court of Appeal upheld the trial judge in Gordon Nelson Inc v Cameron 2018 BCCA 304 when it refused to imply a term in a real estate contract that the purchaser use “best efforts” to find suitable financing to remove the condition for its benefit to complete the purchase of a certain real estate contract.

The Court of Appeal agreed with the trial judge that the contract require only an “honest effort” to find suitable financing, an obligation, she concluded that the purchaser had satisfied when it refused to complete the transaction.

The vendor had refused to return the deposit and the court ordered that it be returned to the purchaser.

The court agreed with the purchaser that by seeking to have a best efforts term implied in relation to the financing condition, the vendors were seeking to have the court rewrite the contract in a manner that is contrary to the express terms in the addendum.

The subject to financing term in question was:

“Subject to purchaser being able to arrange satisfactory financing on or before Friday, May 31, 1985 at 6 PM. The subject is for the benefit of the purchaser, and shall be removed in writing on or before 6 PM, May 31, otherwise this offer is null and void”

The appeal court stated that it is not the function of the courts to set interim agreements aside for uncertainty because they contain a clause that is not precisely expressed. If such a clause has an ascertainable meaning, then the court should strive to find it. As long as an agreement is not being constructed by the court, to the surprise of the parties, authorities to one of them, the court should try to retain and give effect to the agreement of the parties have created themselves.

The court referred to MJB Enterprises LTD v people’s food market LTD ( 1979) BCCA 11 BCLR 130, which said the following about the word satisfactory financing:

“Such a meeting could of been expressed as financing satisfactory to him, that is to the purchaser, and that means turns the interim agreement into an option. There is no mutuality of intention to support that construction.

In the result, the judge concluded that the case law did not support a general proposition that regardless of the express terms of the contract, a best efforts term must always be implied in relation to subject conditions. The appeal court agreed with the trial judge that the respondent was under only an obligation to use “honest efforts” to arrange satisfactory financing, which is a different matter from best efforts.

The court stated that the most that can be said as a general proposition is that the principle of good faith imposes a general duty of honest performance and all contracts, and whether it implies anything further depends on the language in context of the contract itself—Bhasin v Htynew 2014 SCC 71 at paragraphs 89 and 93.

The appeal court agreed that the judge was correct to treat the contractual obligation as defined by the express language of the contract. It was not a case about implying a contractual term in the absence of a term being expressly stipulated in the contract. To imply a term in these circumstances would be impermissibly to construct an agreement for the parties, contrary to the agreement. The objectively made.

The trial judge was correct to conclude that in any event, implying a term was not necessary to give the contract business efficacy. Making an honest effort to find suitable financing and honestly, concluding having tested the market, that suitable financing was not available is an efficacious business arrangement.

The judge found the purchaser honestly concluded that the market would not provide suitable financing further searching for financing would be pointless.

Reopening a Trial

The law relating to the reopening of a trial and the reconsideration of a previous court order is well settled.

The court has a wide discretion, which should be exercised judicially, with caution and sparingly.

The leading case in British Columbia to reopen the trial is Clayton v British  Securities LTD (19434) 49 BCLR 28 ( BCCA). At paragraph 66 – 67:

“ My view has always been that the trial judge might resume the hearing of an action apart from rules until entry of judgment, but as it was vigorously combated I have given careful consideration. The point as far as I know, has not being squarely decided, at least by any case binding on us. It is I think a salutary rule to leave unfettered discretion to the trial judge. He of course would discourage unwanted attempts to bring forward any new evidence available at trial to disturb the basis of a judgment delivered or to permit a litigant. After discovering the effect of a judgment to re-establish a broken down case with the aid of further proof. If the power is not exercised sparingly, and with the greatest care fraud and abuse of the courts processes would result. Without that power and justice might occur.

Hearing new evidence is a departure from its usual procedure, and it is fitting that departures and ordinary practice should be limited by rules to prevent abuse.– A vested right to a judgment is then obtained subject to a right to appeal and should not be lightly jeopardized . Before the gate is closed by entry a trial judge is in a better position to exercise discretion apart from rules, then an appellate court. The trial judge knows the factors in the case that influenced his or her decision and can more readily determine the weight that should be given to new evidence offered.


In deciding whether or not to reopen a case, the governing considerations are:

1) first, what a miscarriage of justice probably occur without a rehearing;
2) would a rehearing probably produce a change of result.


The second arm as to whether the rehearing would produce a change of result was examined in Vance v Vance 34 BCLR 209 at page 211, where the court stated the onus is upon the applicant to satisfy the court on the balance of probabilities, the miscarriage of justice would probably occur without the rehearing and that the evidence of argument that he now wishes to present would probably change the result of the trial. That is not to say that at this stage the applicant must satisfy me that a change in the result would be inevitable.

Some of the instances where the discretion has been exercised reopen the trial prior to the entry of a formal order are:

1) the discovery of material evidence not reasonably discoverable at the time of trial;
2) the occurrence of subsequent developments materially different from presume findings relating to future events, including the assessment of prospective damages in light of events after judgment; Lankenau v Dutton (1988) 27 BCLR (2d) 234 affirmed (1991) 55 BCLR (2d) 218 (BCCA)
3) tests performed after judgment, that newly reveal another type of damage caused by the tort;
4) evidence that could have been presented at the hearing or trial that would lead to an injustice;
5) the reasons for judgment rely on an impossible factual conclusion;
6) the terms of the order were uncertain may have patently conflicted with C’s or soon legislation;
7) there is a perceived conflict of interest of a parties lawyer at trial;
8) by oversight counsel neglected to lead evidence that may be material to the outcome MS v R(DD) (1996) 26 BCLT (3d) 231 (BCCA)

The BC Gas utility v . Alpha Manufacturing was most recently followed in Hambleton v Hambleton 2018 BCSC 999, where the court reconsidered a previous order on the basis that there was sufficient new evidence or argument, which, if available at the time of the initial order, would have likely changed the result. The case dealt with new evidence before the court that justified a reconsideration of his previous order as a result of a mental capacity hearing conducted by a person at the patient’s family doctor, but not the doctor herself.

Witness Credibility Assessment

Witness Credibility Assessment

Robledano v Jaconto 2018 BCSC 152 reviewed the law relating to the criteria to be used when assessing the truthfulness/credibility of a witness.

The case involved a claim of same sex marriage where it was disputed between the parties that such a relationship existed prior to death.

The court reviewed the law relating to assessing the truthfulness of a witnesses testimony and found the claimant’s testimony to be more trustworthy than the opposing family members.

The court followed the decision of Faryna v. Chorny (1952) 2 DLR 354 ( BCCA) at 357 stating that the proper approach to assess the truthfulness of any interested witnesses testimony is based on:

“ The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth.

The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”

The factors identified in Bradshaw v. Stenner 2010, BCSC 1398 when assessing whether the evidence of a witnesses, truthful, but also accurate are:

  • The capacity and opportunity of the witness to observe the events at issue;
  • his or her ability to remember those events;
  • the ability of the witness to resist being influenced by his or her interest in recalling those events;
  • the internal and external consistency of the witnesses evidence; did his or her testimony change between direct and cross examination; are there inconsistencies in between, prior statements, discovery evidence and his or her evidence at trial;
  • whether the witnesses evidence harmonizes with or is contradicted by other evidence, particularly independent or undisputed evidence;
  • whether his or her evidence seems unreasonable, improbable are unlikely, bearing in mind the probabilities affecting the case; and-the witnesses demeanor, meaning the way here she presents while testifying.

Jury Trials

Jury Trials

Rule 12 – 6 sets out nine types of court actions that cannot be heard by a jury.

A few of them are the administration of the estate of a deceased person, the dissolution of a partnership, foreclosure actions ,partition of property, custody and guardianship of children and the execution of trusts.

Accordingly, most court actions can be heard by a jury subject to a few requirements as were discussed in the decision Makasoff v CIBC World markets Inc. 2017 BCSC 2128.

The defendant successfully challenged a jury notice and obtained an order that the trial proceed by Judge alone on the basis that pursuant to rule 12-6(5) (a) the issues were too intricate and complex in character for a jury to conveniently handle.

The notice of claim was extensive and essentially alleged various breaches of contract and breaches of fiduciary duty on the part of the defendant bank.

They were in excess of 3000 documents to be considered  which the court found would require a prolonged examination of documents that may be beyond the ability of a jury to retain its understanding and during its  time constrained deliberation analyze the evidence and decide the difficult questions of the case.

The court stated that a judge would have a lengthy period of time to consider the evidence and would probably draft and redraft the  judgment several times and make countless calculations to test and verify the reasonableness of his or her conclusions. A jury does not have this luxury of time to consider its verdict.

The court further stated that it would be difficult for a judge sitting alone to properly instruct himself or herself as to the law applicable to the decision to be made, but a judge sitting with a jury must charge the jury on one occasion on all of the law that may be applicable depending upon what view of the numerous issues, the jury may take.

Plaintiffs are entitled to choose the mode of trial, but it must be clear that the trial will be fair to all parties- Lomax  v. Weins 2003 BCSC 396.

There were a multiplicity of causes of action, ranging from breach of contract, breach of fiduciary duty and interference with economic relations and the assessment of damages over a large number of transactions.

The question thus became what will the jury be asked to do and are those tasks too complex or intricate to ensure a fair trial.

The court followed the decision of Dopf v. Royal Bank of Canada 1998 CanLii 6494 (BCCA), finding that the jury would be left with an overwhelming difficulty due to the complexity of the case.

Accordingly, the court ordered that the jury notice be struck in the case proceed before a judge alone.



Will and court order drafters should be aware of the rule in Saunders v. Vautier, (1841) 41 E.R. 482), a decision of the English courts of equity from 1841.

The rule occasionally comes to my attention when a will attempts to make a bequest to a mentally capable adult over the age of majority to take effect at a much later date (such as age 50), but the will drafter fails to provide for a “gift over” to an alternate beneficiary in the event that the beneficiary does not live to the later age and can take the bequest outright.

In such a drafting event, the adult beneficiary is able to apply to the court invoking the Saunders v. Vautier rule to collapse the trust provisions and take the bequest at the time of the deceased’s death without having to attain the later stipulated age.

A typical example is where a beneficiary (such as a grandchild) is a capable adult of sound mind and the will bequests that $50,000 be payable to the beneficiary on his 25th birthday, the income to be payable to him annually until he attains that age.  In this event, since there is no gift over to another beneficiary if the beneficiary does not attain the age of 25, upon attaining the age of majority (being 19 in British Columbia), the said beneficiary can call for the capital and any income withheld during his minority to be paid forthwith.

The result would be different if the will stated that the trustee was to set aside $50,000 for each grandchild who is under 25 when the testator dies, and that if a grandchild died before attaining age 25 leaving children surviving him, then those children (being great-grandchildren of the testator) would take the deceased grandchild’s share.  In that the interests of the great-grandchildren need to be considered, and the Saunders v. Vautier rule will not apply as there was a gift over to the great-grandchildren in the event the grandchild did not reach age 25.

The leading Canadian case is the Supreme Court of Canada decision of Baschau v. Rogers Communications Inc., 2006 SCC 28, which stated at paragraph 21:

The common law rule in Saunders v. Vautier can be concisely stated as allowing beneficiaries of a trust to depart from the settlor’s original intentions, provided that they are of full legal capacity and are together entitled to all the rights of beneficial ownership in the trust property.  More formally, the rule is stated as follows in Underhill and Hayton: Law of Trusts and Trustees (14th edition, 1987), at paragraph 628:

If there is only one beneficiary, or if there are several beneficiaries, whether entitled concurrently or successively, and they are all of one mind, and he or they are not under any disability, the specific performance of the trust may be arrested, and the trust modified or extinguished by him or them, without reference to the wishes of the settlor or trustees.

Vested or Contingent Gift? 

An analysis as to whether the rule in Saunders v. Vautier applies or not requires an examination of the difference between a vested and a contingent interest.

In Campbell Estate, 2005 BCSC 1561 at paragraph 13 stated:

A contingent interest is one that is subject to the happening of an event that may never occur.  A vested interest, on the other hand, is one the enjoyment of which is merely postponed, though it may be subject to subsequent divestment. . . . In other words, if the gift is subject to a condition precedent, then it is contingent; if it is subject to a condition subsequent (which will cause the interest to be divested if the condition is met) it is vested subject to divestment.

There is a presumption in law of early vesting and to avoid an intestacy if possible. (Fargey v Fargey Estate, 2015 BCSC 721).

Saunders . Vautier Applied

Saunders v Vautier was applied in Grieg v National Trust, (1998) 20 ETR (2d) 309, where the petitioner was involved in an accident as an infant, who later applied to the court to determine the trust set out in the court-ordered settlement of her lawsuit after she attained the age of majority.

The terms of the court-ordered trust were that the corporate trustee was directed to invest the trust fund and to pay out such amounts from the income and capital of the fund as required by the petitioner during her infancy.

After the petitioner became 19 years of age, the trustee was directed to pay the petitioner the income from the trust until she became 25 years of age, at which time one-half of the capital and any accumulated income was to be paid to her. The balance of the trust was to remain invested until she became 30 years of age, after which time she should be paid the total standing to her credit.

The court held that even though the trust was settled by way of a court order, the rule in Saunders v. Vautier still applied since the beneficiary was of full capacity, and there being no gift over, the beneficiary had the full beneficial interest, both as to payments during her lifetime and throughout the control of the reversionary interest.

As such, the petitioner had the right to determine the trust and receive the sum held for her on her behalf.  The court varied the trust to pay the petitioner the entire sum upon her attaining age 19.

Saunders v Vautier Not Applied 

Saunders v. Vautier was held not to apply in Little v Salterio 14 Sask. R. 18, where a father’s will directed his trustee to pay the net income from the residue of his estate to his daughter until she attained the age of 45 years, at which time he directed that the capital of the residue be paid to her absolutely.

The will further provided that in the event that his daughter died before attaining the age of 45 years, then the income was to be used for the benefit of his granddaughter until she attaining the age of 25, at which time he directed that the capital be paid to her absolutely.

The testator died when the daughter was 35 years of age and the granddaughter age 10. The daughter applied to the court for an order immediately vesting the residue of the estate.

Her application was refused on the basis that her bequest had not vested and was contingent upon her attaining the age of 45 years, and that the gift over to the granddaughter prevented the vesting of the trust property until she did actually attain the age of 45 years.

Since the gift of capital to the daughter was consequently not vested absolutely, but was contingent upon her attaining the age of 45 years, she was not entitled to collapse the trust.

The application was opposed by the Official Guardian of Saskatchewan, who relied upon the decision Berwick v Canada Trust Co. (1948) SCR 151 for the proposition that where there are no words of immediate gift, the gift is not vested absolutely and therefore immediate payment will not be ordered under the rule in Saunders v. Vautier.

The Berwick decision of the Supreme Court of Canada was itself an application under Saunders v. Vautier that was dismissed by the court.

In Berwick a trust created by the will of the testator provided that income be paid to his son for 10 years and that the capital be paid at the expiration of the 10 years.  The will further provided that the son’s share was to be given to the son’s estate in the event that the son predeceased the testator or died before the expiration of the 10-year period.

The son applied for the capital before the expiration of the 10 years but the court dismissed his application since there was a gift over to the son’s estate and the bequest to the son was contingent upon the expiration of 10 years.


Will drafters are often asked by testators to delay a bequest to a beneficiary until a much later date than the age of 19, which in itself is achievable if the will is drafted correctly-that is, by providing for a “gift over” to an alternate beneficiary to provide for the event that the  first beneficiary may die before reaching the age of entitlement to the full bequest. Unless the will drafter is aware of the rule in Saunders v. Vautier there may be a failure to provide for a gift over, which will entitle a mentally capable beneficiary who reaches the age of 19 to apply to collapse the trust and take the bequest absolutely without having to await attaining the stipulated later age set out in the will.

Court Pleadings

Court Pleadings

Court pleadings must briefly limit the issues of fact and law with certain clarity so as to give the opposing party sufficient notice of the case to be met at trial.

The law relating to pleadings was reviewed in the Public Guardian and Trustee BC v Johnston 2016 BCSC 1388 in an application to strike out the combined pleadings of the plaintiff who had claimed in the same court action that  the will was invalid, and alternatively if it was invalid, then the two claims should be heard separately.

The court ordered that the validity of the will be determined before the wills variation action.

[39]        The applicants rely on Rule 9–5(1) of the SCCR. It provides that, at any stage of the proceeding, the Court may order that the whole or any part of the pleading or other document be struck or amended on the ground that:

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

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

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

d)            it is otherwise an abuse of the process of the court.

[40]        Where one or more of the grounds enumerated in Rule 9-5(1) are made out, the Court may pronounce judgment or order that the proceeding be stayed or dismissed, and that the costs of the application be paid as special costs.

[41]        The raison d’être of Rule 9-5(1) is as a mechanism to enforce the rules of pleadings: Doyle Construction Co. v. Carling O’Keefe Breweries of Canada Ltd., 1988 CanLII 2843 (BC CA), [1988] B.C.J. No. 831, 27 B.C.L.R (2d) 81 (C.A.) [Doyle].

[42]        The paramount function of pleadings is to define the issues of fact and law with clarity and precision, in order to give the opposing party fair notice of the case to be met at trial.  Equally important is that by defining the essential contours of the case, pleadings facilitate useful pretrial case management, establish the parameters of pretrial discovery and disclosure, and determine the necessity and scope of expert opinions: Keene v. British Columbia (Ministry of Children and Family Development) & Others, 2003 BCSC 1544 (CanLII); Sahyoun v. Ho, 2013 BCSC 1143 (CanLII) [Sahyoun].

[43]        Pleadings are not a vehicle to outline a detailed narrative of the facts and events that may have bearing upon the case.  Evidence is not to be included: Sahyoun at para. 29; Rule 3-7(1).  Rather, pleadings must be summary in nature, setting out a concise and orderly statement of the material facts that give rise to the claim (or counterclaim), establish a defence, or relate to matters raised by the claim: Doerksen v. First Open Heart Society of British Columbia, 2010 BCSC 1291 (CanLII).

[44]        Material facts are the facts that are essential to formulate each cause of action or defence; no averment crucial to success should be omitted: Pyke v. Price Waterhouse Ltd. , 40 C.P.C. (3d) 7, 1995 CarswellBC 907 (S.C.); Delaney & Friends Cartoon Productions Ltd. v. Radical Entertainment Inc. et al, 2005 BCSC 371 (CanLII); Skybridge Investments Ltd. v. Metro Motors Ltd., 2006 BCCA 500 (CanLII); Young v. Borzoni et al, 2007 BCCA 16 (CanLII) at para. 20.

[45]        It is the expectation that material facts will be stated succinctly and with precision, and also be organized in a way that informs the Court of the issues of fact and law it is being called upon to decide: Homalko Indian Band v. British Columbia, [1998] B.C.J. No. 2703, 25 C.P.C. (4th) 107 (S.C.); Glenayre Manufacturing v. Pilot Pacific Properties, et al, 2003 BCSC 303 (CanLII).

[46]         Particulars and material facts are different in their character and purpose.  Broadly speaking, particulars are intended to limit the generality of the pleadings and the issues to be tried; enable the other side to properly prepare for trial; tie the hands of the party supplying the particulars; and inform the opposing party what the pleader intends to prove, as distinct from the mode in which the case is to be proved: Cansulex Ltd. v. Perry, 1982 CarswellBC 836 (C.A.).  They should follow the material facts and be identified as such.  Although particulars must supply sufficient detail of the case to be met, they are not to include the evidence that is  anticipated will be adduced at trial to prove the pleaded facts.  

[47]        The distinctions between evidence and material facts, and between evidence and particulars can be difficult to draw in practice.  Despite the challenges, the integrity of those lines must be maintained as stringently as is reasonably possible.

[48]        Where a party pleads a legal conclusion such as, for example, the existence of a duty of care or of a fiduciary duty, sufficient material facts must be pleaded to support that conclusion: Ferstay v. Dywidag Systems International, 2008 BCSC 793 (CanLII); Rule 3‑7(9).

[49]        Where, as in the case at hand, there are allegations of fraud, breach of trust, undue influence and misrepresentation, inclusion of full particulars, including the dates and items as they are known at the time of the pleading, are mandatory: Rule 3‑7(18).

[50]        Rule 9‑5(2) confirms that no evidence is admissible on an application brought to strike a pleading on the ground that it does not disclose a reasonable claim or defence.  The facts are to be taken as pleaded.  Evidence is admissible, however, in relation to the other grounds.

[51]        In Citizens for Foreign Aid Reform Inc. v. Canadian Jewish Congress, 1999 CanLII 5860 (BC SC), 36 C.P.C. (4th) 266, 1999 CarswellBC 2111 (S.C.), Romilly J. provided an overview of the key principles that inform the analysis of whether a pleading ought to be struck under the predecessor to sub-rules 9-5(1)(b) and (c) at para. 47:

[47]      Irrelevancy and embarrassment are both established when pleadings are so confusing that it is difficult to understand what is being pleaded: Gittings v. Caneco Audio-Publishers Inc. (1987), 1987 CanLII 2561 (BC SC), 17 B.C.L.R. (2d) 38 (B.C.S.C.). An “embarrassing” and “scandalous” pleading is one that is so irrelevant that it will involve the parties in useless expense and will prejudice the trial of the action by involving them in a dispute apart from the issues: Keddie v. Dumas Hotels Ltd. (1985), 1985 CanLII 417 (BC CA), 62 B.C.L.R. 145 at 147 (B.C.C.A.).  An allegation which is scandalous will not be struck if it is relevant to the proceedings.  It will only be struck if irrelevant as well as scandalous: College of Dental Surgeons of B.C. v. Cleland, (1968), 66 W.W.R. 499 (B.C.C.A.).  A pleading is “unnecessary” or “vexatious” if it does not go to establishing the plaintiff’s cause of action or does not advance any claim known in law: Strauts v. Harrigan, [1992] B.C.J. No. 86 (Q.L.) (B.C.S.C.).  A pleading that is superfluous will not be struck out if it is not necessarily unnecessary or otherwise objectionable: Lutz v. Canadian Puget Sound Lumber and Timber Co. (1920), 28 B.C.R 39 (C.A.).  A pleading is “frivolous” if it is obviously unsustainable, not in the sense that it lacks an evidentiary basis, but because of the doctrine of estoppel: Chrisgian v. B.C. Rail Ltd. et al. (6 July 1992), Prince George Registry 20714 (B.C.S.C.).

[52]        A pleading may be embarrassing or scandalous within the contemplation of the Rule where it: does not state the real issues in an intelligible form; is overly prolix; includes irrelevant facts; is calculated to confuse the opposing party and make it difficult, and perhaps impossible, to answer; or contains arguments or evidence: Kuhn v. American Credit Indemnity Co., [1992] B.C.J. No. 953 (S.C.); McNutt v. A.G. Canada et al., 2004 BCSC 1113 (CanLII) at para. 41; B.C./Yukon Association of Drug War Survivors v. Abbotsford (City), 2014 BCSC 1817 (CanLII) at paras. 93-94; Spillane v. United Parcel Service Canada Ltd. et al, 2006 BCSC 687 (CanLII) at para. 22; Budgell v. British Columbia, 2007 BCSC 991 (CanLII) at para. 20.

[53]        That being said, so long as the pleadings do not confuse the opposing party or make it difficult for that party to understand the case that must be met, sheer verbosity does not ordinarily provide sufficient justification for striking a claim: Doyle at para. 4; 347202 B.C. Ltd. v. Canadian Imperial Bank of Commerce, [1995] B.C.J. No. 449 (S.C.); Stanley v. KCL West Holdings Inc. et al, 2004 BCSC 1555 (CanLII).

[54]        A crucial consideration in determining whether to strike a pleading under Rule 9‑5(1)(a) is whether it can be preserved by amendment: International Taoist Church Canada v. Ching Chung Taoist Association of Hong Kong Limited, 2011 BCCA 149 (CanLII).  The prospect of rectifying deficient pleadings by way of amendment is also a factor in considering whether the pleading ought to be struck on the other grounds: Ahmed v. Assu, 2014 BCSC 1768 (CanLII); Willow v. Chong, 2013 BCSC 1083 (CanLII) at para. 23.



In the course of a complex almost month long matrimonial trial, the argument was raised with respect to the marriage agreement that it was unconscionable in its terms.

The court concluded that it was not unconscionable.

S. ( H.S.) v D. ( S.H.) 2016 BCSC 1300 discussed the law re unconscionable contracts:

178 The doctrine of unconscionability, which was developed in the courts of equity in England, is intended to provide relief to parties, in the form of rescission, from bargains that are “contrary to good conscience”: Gindis v. Brisbourne, 2000 BCCA 73 at para. 19. In Canada, the remedy has been imposed in a broad spectrum of relationships and circumstances.

179 Although the precise formulation of the judicial test has varied over the years, the appellate authorities in this province establish that the requisite elements that ground a claim in unconscionability are: (i) proof of inequality in the position of the parties arising out of ignorance, need, or distress of the weaker, which leave him or her in the power of the stronger; and (ii) proof of substantial unfairness in the bargain obtained by the stronger party. If these requirements are proven, a presumption of fraud is established. It then becomes the obligation of the stronger party to rebut the presumption by showing that the bargain was fair, just, and reasonable: Morrison v. Coast Finance Ltd., [1965] B.C.J. No. 178 (C.A.); Klassen v. Klassen, 2001 BCCA 445 at paras. 56-57; Do v. Nichols, 2016 BCCA 128 at para. 26.

180 Newbury J.A., at para. 22 of Gindis, expressed the view that the question of who bears the onus of proof was not entirely clear, but ultimately found it unnecessary to decide the matter. The Court of Appeal in Do recently clarified that the onus lies on the party seeking to establish that a bargain was unconscionable: at para. 26.

181 Crucially, the Court’s inquiry under unconscionability is limited to the circumstances existing at the time of the execution of the agreement: Gindis at para. 32. An agreement cannot become unconscionable on account of its consequences over time.

182 The authorities establish that matrimonial negotiations occur in a unique environment and, therefore, unconscionability in the matrimonial context is not equivalent to that in a commercial context: Toscano v. Toscano, 2015 ONSC 487at para. 64. In Miglin v. Miglin, 2003 SCC 24and subsequently in Rick v. Brandsema, 2009 SCC 10, the Supreme Court of Canada reformulated the common law test for unconscionability to reflect the uniqueness of the negotiating environment for matrimonial bargains. Judicial intervention is justified where agreements are found to be “procedurally and substantively flawed”. The Court in Rick stated:

[40] There is no doubt that separation agreements are negotiated between spouses on the fault line of one of the most emotionally charged junctures of their relationship — when it unravels. The majority in Miglin concluded that because of the uniqueness of this negotiating environment, bargains entered into between spouses on marriage breakdown are not, and should not be seen to be, subject to the same rules as those applicable to commercial contracts negotiated between two parties of equal strength:

The test should ultimately recognize the particular ways in which separation agreements generally and spousal support arrangements specifically are vulnerable to a risk of inequitable sharing at the time of negotiation and in the future…
Negotiations in the family law context of separation or divorce are conducted in a unique environment … [at] a time of intense personal and emotional turmoil, in which one or both of the parties may be particularly vulnerable. [Paras. 73-74]

183 The Court went on to summarize the animating principles:

[44] Where, therefore, “there were any circumstances of oppression, pressure, or other vulnerabilities”, and if one party’s exploitation of such vulnerabilities during the negotiation process resulted in a separation agreement that deviated substantially from the legislation, the Court in Miglin concluded that the agreement need not be enforced (paras. 81-83).

184 Notably, the Court in Rick emphasized the importance of respecting “the parties’ right to decide for themselves what constitutes for them, in the circumstances of their marriage, mutually acceptable equitable sharing”: Rick at para. 45, Miglin at para. 73. The Court endorsed the notion that parties should generally be free to decide for themselves what bargains they are prepared to make. The Court underscored that this contractual autonomy “depends on the integrity of the bargaining process”: Rick at para. 46.

185 I next address whether the jurisprudence draws any distinction between the enforceability of pre-nuptial and separation agreements. The FRA defines “marriage agreements” in s. 61. Both pre-nuptial and separation agreements fall within the definition of marriage agreements under s. 61. Notably, however, both Miglin and Rick addressed family law agreements in the context of separation and divorce.

186 The distinction in the nature and effect of pre-nuptial and separation agreements was addressed by the Supreme Court of Canada in Hartshorne v. Hartshorne, 2004 SCC 22. The majority recognized the distinction but rejected the notion of establishing a “hard and fast” rule that applies a different standard of review to pre-nuptial and separation agreements. The Court stated as follows:

[39] This Court has not established, and in my opinion should not establish, a “hard and fast” rule regarding the deference to be afforded to marriage agreements as compared to separation agreements. In some cases, marriage agreements ought to be accorded a greater degree of deference than separation agreements. Marriage agreements define the parties’ expectations from the outset, usually before any rights are vested and before any entitlement arises. Often, perhaps most often, a desire to protect pre-acquired assets or an anticipated inheritance for children of a previous marriage will be the impetus for such an agreement. Separation agreements, by contrast, purport to deal with existing or vested rights and obligations, with the aggrieved party claiming he or she had given up something to which he or she was already entitled with an unfair result. In other cases, however, marriage agreements may be accorded less deference than separation agreements. The reason for this is that marriage agreements are anticipatory and may not fairly take into account the financial means, needs or other circumstances of the parties at the time of marriage breakdown. [Citations omitted]

193 There must be cogent evidence to warrant a finding that an agreement should not stand on the basis of a fundamental flaw in the negotiation process: Miglin at para. 82. The evidence in support of Ms. D.’s contention that the Marriage Agreement was unconscionable falls significantly “short of the mark”: Dilley at para. 42. I have concluded that the evidence does not support the assertion that Mr. S. exerted overbearance or any inequality of bargaining power over Ms. D. or took any knowing advantage of any vulnerability of Ms. D.’s in the negotiation or execution of the Marriage Agreement.