Petition or Notice of Claim?

Is it a Petition or Notice of Claim?

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

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

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

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

The Appropriate Form of Proceeding

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

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

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

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

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

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

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

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

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

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

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

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

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

[36]  After reviewing the law Justice Skipp concluded:

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

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

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

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

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

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

[39] He concluded (at 4):

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

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

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

Inherent Jurisdiction of the Court

Understanding Inherent Jurisdiction of the Court

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

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

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

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

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

Settlement Agreements

Entering into Settlement Agreements

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

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

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

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

i) was a contract reached?; and

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

Legal Framework

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

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

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

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

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

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

ellipsis;

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

Exclusion of a Party at Trial or Discovery

Exclusion of a Party at Trial or Discovery

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

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

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

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

The minority decision of the appeal court stated :

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

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

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

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

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

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

This list is not intended to be exhaustive.

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

41      As Rutherford J. stated in Karamanokian:

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

[Emphasis added]

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

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

Vexatious Litigant Enjoined From Further Court Actions

Vexatious Litigant Enjoined From Further Court Actions

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

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

A portion of the judgment is as follows:

Application to Strike the Notice of Civil Claim

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

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

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

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

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

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

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

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

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

Application to Strike the Notice of Civil Claim

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

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

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

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

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

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

Discussion

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

Part 1 Statement of Facts

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

a. Ishmaglite – The Singular Great Nation

b. Isaacite – the Many Nations.

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

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

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

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

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

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

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

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

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

Part 2 Relief Sought

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

From these decisions the following principles may be extracted:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Personal Costs Against Lawyer

Personal Court Costs Awarded Against Lawyer - Disinherited

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

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

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

Court costs are traditionally intended to:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Appointing and Removing a Litigation Guardian

Appointing and Removing a Litigation Guardian

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Notice to Dispute: Understanding the Rules

Notice to Dispute: Understanding the Rules

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

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

Re: Dow Estate 2015 BCSC 292 stated:

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

Rule 25-10 — Notices to Dispute

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

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

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

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

Only one notice of dispute to be filed

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

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

Contents of notice to dispute

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

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

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

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

Amendment of notice to dispute

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

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

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

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

Renewal of notice of dispute

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

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

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

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

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

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

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

Application for renewal of notice of dispute

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

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

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

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

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

No grant while notice to dispute in effect

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

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

(b) reseal a foreign grant.

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

Withdrawal of notice of dispute

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

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

Application to remove notice of dispute

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

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

Grounds on which notice to dispute may be removed

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

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

When notice of dispute ceases to be in effect

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

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

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

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

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

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

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.

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.