Kerfoot v Richter 2018 BCCA 238 reviewed the law relating to the test on an application to convert a proceeding brought by petition to an action.
The petitioner’s application to convert the petition to an action was dismissed by the chambers judge, and the Court of Appeal held that the chambers judge did not properly administer the legal test in the exercise of his discretion.
The petition was to dispute the validity of the petitioner’s mother’s will, in which the bulk of the estate was left to the respondent. It was alleged that the testator lacked mental capacity, and the will was procured as a result of the undue influence of the respondent.
The chambers judge dismissed the application without formal reasons.
The Court of Appeal held that the proper test was set out in British Columbia Milk Marketing Board v Saputo Products 2017 BCCA 247, that proceedings brought by petition should be referred to the trial list when there are disputes of fact or law, unless the party requesting the trial is bound to lose( at para. 43)
The application to convert the petition into an action was made pursuant to Supreme Court Rules 22- 1 (7) and 25-14(8)(e).
The appeal court in Kerfoot v Richter held that the Saputo test precluded a judge from weighing the evidence.
Applying the decision Robertson v Dhillon 2015 BCCA 469 the appeal court confirmed that the test is akin to the test to be applied for summary judgment: whether on the relevant facts and applicable law, there is a bona fide triable issue.
In the context of this case where there are factual disputes, the chambers judge was to determine whether the petitioner, as the party requesting the trial, was bound to lose; more particularly whether there was a triable issue with respect to the deceased testamentary capacity were the issue of undue influence.
Where there are disputed facts in the pleadings, the party who seeks either summary judgment or dismissal bears the evidentiary burden of showing that there is no genuine issue to be tried, and that is proven through evidence. McLean v law society, British Columbia , 2016 BC CA 368 at paragraphs 36 – 39.
In considering evidence, however, the court must not weigh it, but is limited to assessing whether it establishes a triable issue. Sky Bridge Investments Ltd v . Metro Motors LTD 2006 BC CA 500.
While a judge is not to weigh evidence, he or she may draw inferences that are strongly supported by undisputed facts.
Importantly, a party seeking to establish that there is a triable issue cannot rely on mere allegations, but must establish the existence of material issues. Canada Atty. Gen. v Lameman 2008 SCC 14 at paragraph 11.