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Pavlovich v. Danilovic, 2020 BCCA 239

The BC Court of Appeal recently heard an appeal from a BC Supreme Court decision granting the daughter of a deceased a declaration that her brother held two properties in-trust for the benefit of the deceased’s estate.

Pavlovich v. Danilovic, 2020 BCCA 239 concerned a deceased father and his two children, Ljuba and Alexander. The wife of the deceased and mother of the children had long-ago passed away. Prior to her death, she and the deceased owned two properties in joint tenancy. On the wife’s death, her interest passed to her husband by way of the right of survivorship. Now widowed, the deceased gratuitously transferred both properties into joint tenancy with his son, Alexander. Just like when his wife died, when the deceased died, his interest in the two properties passed to Alexander.  

Ljuba filed a lawsuit in BC Supreme Court seeking a declaration that Alexander held a half-interest in the properties in trust for her. Following trial, the trial judge found that the evidence put forth by the parties as to the deceased father’s intentions in transferring the properties into joint tenancy essentially cancelled each other out with neither position being more persuasive than the other. As the Court of Appeal described:

[18]         The judge determined the presumption of resulting trust applied, consistent with Pecore v. Pecore, 2007 SCC 17, as she was unable to determine the father’s intention on the evidence. Based on the documentary evidence, the trial judge found “[i]t is just as likely that the joint tenancies reflect a financial strategy aimed at saving the family money—both in taxes during his lifetime and in probate upon his death—as they do an intention for Alexander to hold the properties outright and to the exclusion of Ljuba upon Dragomir’s death” (at para. 47).

[19]         On the oral testimony, the judge stated that both parties had provided evidence to support their version of events, such that “the evidence stands in equipoise” (at para. 55). The judge was unable to determine Dragomir’s intention on the balance of probabilities, and the presumption of resulting trust applied.

As such, the trial judge relied on the presumption of resulting trust and found that Alexander had failed to rebut that presumption. In those circumstances, he found in favour of Ljuba.

On appeal, Alexander argued that the trial judge failed to consider relevant oral and documentary evidence; that the trial judge’s conclusions were not be supported by the evidence; and that the trial judge erred in applying the presumption of resulting trust.

In dismissing the first ground of the appeal, the Court of Appeal found that the trial judge considered all relevant evidence including oral evidence offered by both parties about conversations each had had with the deceased before he died. The trial judge simply chose to place very little weight on those statements as they came from the parties who were obviously interested in the outcome of the litigation.  

Alexander also argued that the effect of the trial judge’s ruling would defeat the financial strategy the court determined his father had in transferring the properties and, because of that, his father could not have possibly been motivated by financial matters. In rejecting this ground, the Court of Appeal had this to say:  

[43]       Alexander’s submission on this point, respectfully, misses the point. Clearly the judge found that Dragomir had a general motivation to avoid at least probate fees. This prompted a layman’s desire to keep the properties out of his estate. The fact that the strategy will not now work in light of this litigation and indeed, to be colloquial, has backfired, is quite beside the mark and in no way affects Dragomir’s motivation as found by the judge. One notes that if Alexander had accepted the transfers on the understanding that he would later gift a one-half interest to Ljuba, Dragomir’s “financial strategy” would have worked at least to an extent.

Finally, Alexander argued that erred by failing to consider the possibility that the deceased could have intended to retain beneficial ownership of the properties, but still transfer to him the right of survivorship. In doing so, Alexander relied on Herbach v. Herbach Estate, 2019 BCCA 370 wherein the Court of Appeal had previously acknowledged that a person can do such a thing. Still, in this case, the Court of Appeal found that the trial judge had made no errs in this regard.

In concluding its reasons for dismissing the appeal, the Court of Appeal made some interesting comments on burdens of proof:

[57]         In Rhesa Shipping Co. S.A. v. Edmunds, [1985] 2 All E.R. 712 (H.L.), Lord Brandon recalled the well-known exchange between Sherlock Holmes and Dr. Watson on fact finding. Holmes said:

How often have I said to you that, when you have eliminated the impossible, whatever remains, however improbable must be the truth?

[58]         Lord Brandon rejected this default position for three reasons. It is the first reason that applies here:

… namely that the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.

Getting Out of a Settlement Agreement

For one reason or another, a party to a lawsuit may want to get out of a settlement agreement reached with the opposing party. This is easier said than done as illustrated in the recent case of Wannan v. Hutchison, 2020 BCSC 1233.

In that case, the plaintiff claimed damages for injuries and losses allegedly suffered as a result of naturopathic treatments provided by the defendant.

Two-and-a-half years after the lawsuit was filed, the defendant offered to settle the lawsuit by offering to pay the plaintiff $5,000 in exchange for a release and consent dismissal order. The defendant’s offer explicitly said that the release would include a confidentiality and non-disparagement clause preventing the plaintiff from publicly criticizing the defendant. The lawyer for the defendant attached the proposed release to the offer to settle.

The lawyer for the plaintiff forwarded the offer to settle to the plaintiff to seek her instructions. The plaintiff instructed her lawyer to accept the offer, which she did. Unfortunately, the lawyer for the plaintiff forgot to provide her client with the proposed release, which was much broader than anticipated. Namely, the non-disparagement clause would prevent the plaintiff from criticizing the type of treatment she received from the defendant irrespective of whether the plaintiff criticized the defendant herself at the same time. The plaintiff was not agreeable to such a term and advised her lawyer. The lawyer for the plaintiff then communicated her client’s concerns about the release to the lawyer for the defendant and asked him to amend the release. The defendant’s lawyer refused on the basis that the parties had reached a binding agreement.

When the plaintiff refused to capitulate, the defendant brought a court application seeking to have the settlement agreement enforced.

At the hearing, the judge had to determine (a) whether there was a binding agreement between the parties and, if so, (b) whether the court should exercise its discretion to refuse to enforce it.

The court noted that, for a settlement agreement to be binding, the terms of the offer must be clear and unambiguous. Acceptance of the offer must be absolute and unqualified. Only if there is agreement on all essential terms will the transaction be declared an effective contract.

Even if there is a binding agreement, the court retains limited discretion to deny an application to enforce the settlement agreement where it has not yet been perfected. There are four grounds for exercising such discretion:

  1. There was a limitation on the instructions of the lawyer known to the opposite party;
  2. There was a misapprehension by the lawyer making the settlement of the instructions of the client or of the facts of a type that would result in injustice or make it unreasonable or unfair to enforce the settlement;
  3. There was fraud or collusion; or
  4. There was an issue to be tried as to whether there was such a limitation, misapprehension, fraud or collusion in relation to the settlement.

Other factors to consider include:

  • whether the defendant will be prejudiced if the settlement is not enforced beyond losing the benefit of the agreement;
  • the degree to which the plaintiff would be prejudiced if judgment is granted relative to any prejudice the defendant would suffer if the settlement is not enforced; and
  • whether any third parties would be affected if the settlement is not enforced.

In the present case, the court determined that there was clearly a binding agreement between the parties. Nevertheless, the court found that it would be unjust to enforce the settlement agreement and declined to do so, stating:

[20]        I am satisfied that plaintiff’s counsel entered into the settlement under a misapprehension – both on her part and the part of her client. In these unusual times counsel are doing business differently. Instead of meeting face to face with clients, they are now forced to communicate electronically. It is a new way of doing business. That counsel inadvertently failed to attach the release to the offer to settle is not out of the realm of possibilities. I accept that counsel did not realize that she had failed to provide the release to her client until after she sent the acceptance email, and that her client did not understand the scope of the release when she instructed counsel to accept the offer.

The court further found that the non-disparagement clause was overly broad. It emphasized the fact that the plaintiff’s lawyer had communicated her client’s concern to the defendant’s lawyer within 24 hours of accepting the offer at a time when the agreement had not been perfected. The court said that there was no evidence of any prejudice to the defendant apart from losing the benefit of the agreement. There was no evidence of any impact on third parties from refusing to enforce the agreement. Conversely, the court accepted that the plaintiff would be prejudiced if the agreement was enforced in that she would be precluded from being about to publicly warn others about what she considered to the poor treatment she received, which was very important to her.

In all the circumstances, the court was satisfied that this was one of the rare cases in which it would be unjust to enforce a settlement agreement.

Being Represented by a Lawyer at the CRT

In all levels of court within British Columbia, persons have the right to be represented by legal counsel. This is not necessarily the case with the Civil Resolutions Tribunal (or CRT).

The CRT is governed by the Civil Resolution Tribunal Act, S.B.C. 2012, c. 25 which sets out in section 20;

20   (1) Unless otherwise provided under this Act, the parties are to represent themselves in a tribunal proceeding.

(2) A party may be represented by a lawyer or another individual with authority to bind the party in relation to the dispute if

(a) the party is a child or a person with impaired capacity,

(b) the rules permit the party to be represented, or

(c) the tribunal, in the interests of justice and fairness, permits the party to be represented.

Section 20 clearly limits person’s right to have representation if they wish in front of the tribunal. Section 20 does not apply if the claim in front of the tribunal relates to an accident claim.

While some matters may be simplier and not require representation others can be far more complex than they originally appear and representation can be essential to a person to handle their claim. In the recent decision of The Owners of Strata Plan NW 2575 v. Booth, 2020 BCCA 153, the BC Court of Appeal had to consider if the tribunal was reasonable in its decision to refuse the Strata the right to be represented.

In this case, the claim concerned the responsibility for maintenance of a sunroom attached to the Booth’s strata unit. The Booth’s sued the Strata for $700 for repairs to the sunroom, $300 for the costs to file an action, and $25,000 for loss of enjoyment of life, threats, abuse and stress. The Strata filed a request for Representation that was denied by the tribunal.

The tribunal decided that Strata did not require representation since the opposing party was also unrepresented and that there was “nothing exceptionally unusual or complex about the subject-matter of the dispute. It is a common dispute type within the tribunal’s strata jurisdiction.”

The Court of Appeal quashed the CRT’s decision on the grounds that the matter was more complex than they had suggested. The Court of Appeal noted that the tribunal had not considered the scale of claim for loss of enjoyment of life, threats, abuse and stress, nor the asserted basis for those claims, and the complex zone of legal issues that would have to be considered while determining that claim. The court determined that “the issues raised include allegations of the commission of torts, vicarious liability for torts, issues of personal and corporate reputation and, potentially, jurisdiction” and “that absent meaningful consideration of these features, the Tribunal’s reasoning is flawed, and the decision is not reasonable.”

Mu v. ICBC, 2020 BCCRT 432

As discussed in our previous posts, the Civil Resolutions Tribunal (or CRT) is an administrative tribunal originally established by the BC government in 2012 to handle disputes between strata councils and property owners. In 2019 the jurisdiction of the CRT was significantly expanded by the NDP Government to include determining when a person is entitled to ICBC no-fault or Part 7 benefits.

ICBC Part 7 benefits are available to anyone injured in a motor vehicle accident in British Columbia as long as they are an “insured” person. An insured person includes anyone who is the owner of an ICBC-insured vehicle and members of their household, any licensed BC driver and members of their household, any person who is an occupant of a ICBC insured vehicle, or a pedestrian or cyclist who is stuck by an ICBC insured vehicle. These benefits can included medical benefits to pay for treatment and disability benefits to off-set a person’s wage loss caused by an accident.

An individual’s right to pursue ICBC for Part 7 benefits expires 2 years from the date ICBC last paid benefits to a person. That means if an individual suffers a flare-up in their injuries, which is quite common, they could be denied the treatment of wage loss benefits they need.

Prior to the CRT taking over jurisdiction of Part 7 benefits, a common practice with the Supreme Court of BC was for a placeholder action to be filed in order to preserve an individual’s rights to access benefits at a later date if such a flare-up should occur. Recently in Mu v. ICBC, 2020 BCCRT 432, the CRT had to consider if they would allow this practice to continue.

The claimant in Mu was not actively seeking treatment and filed a dispute notice with the CRT since they had exclusive jurisdiction over Part 7 benefits in order to preserve their right to access benefits at a later date. The claimant contested that the filing of the dispute notice as a placeholder was consistent with the pre-April 1, 2019 practice that the Supreme Court had always accepted. Since the CRT jurisdiction is the same as that previously held by the Supreme Court, the claimant argued the CRT should respect and follow the same practice.

The CRT disagreed and found that a dispute could not be filed as a placeholder. While this is only the first CRT decision on this matter, it may set a disturbing precedent that will serve to prevent individuals from getting the benefits they need when they need them.

Tomlyn v. Kennedy, 2008 BCSC 331

In many cases, more than one person may have a claim to vary a deceased person’s will. In that situation, it is important that all claims be heard together so that the Court can assess all claims at once.

The first person to file a lawsuit seeking to vary a deceased person’s will is required to name as defendants all beneficiaries under the will and all parties who could potentially make bring their own wills variation claim. This puts other potential claimants on notice and provides them with the opportunity to participate in the lawsuit.

Under the Supreme Court Civil Rules, a defendant named in a proceeding to vary a will may include their own claim to vary the will as part of that proceeding as opposed to starting their own lawsuit. The Court, then, has discretion to make an award in favour of such a defendant in addition to the plaintiff.  This is what happened in Tomlyn v. Kennedy, 2008 BCSC 331.

In Tomlyn, Michael Tomlyn sought to vary the will of his mother, Pauline Herchenson. His brother, Francis Tomlyn, was duly named as a defendant together with the executor and other beneficiaries named in the will.

Under her will, Ms. Herchenson left cash gifts totaling approximately $270,000 to various relatives, friends, and a charity. She also left $15,000 for the maintenance of her dog and $50,000 for the benefit of her brother, with the direction that any unused amounts as of the recipients’ death applied to the residue of her estate.

The residue of the estate, which totaled $230,000, was to be disbursed in equal shares among her three sons from whom she was estranged. Under the terms of the will, this would have resulted in a gift of $76,000 each to her two surviving sons, and $76,000 to be divided amongst George’s children.

The estrangement was a result of the children being apprehended when they were under the age of 3. The brothers never had contact with their mother again. George Tomlyn, Ms. Herchenson’s youngest son, was eventually adopted. He died prior to Ms. Herchenson leaving four surviving children. Neither Michael Tomlyn nor Francis Tomlyn were ever adopted. Both had difficult upbringings and, at the time of trial, modest means. Ms. Herchenson did not leave a surviving spouse nor did she have any other children.

Following a trial, the Court acknowledged that, as the children of testator, both Michael and Francis had standing to apply to vary the will. Despite Michael being the party that started the lawsuit, the Court considered the claim of Francis as well.

The Court recognized that George would not have had standing to apply to vary the will as he ceased being a child of Ms. Herchenson the moment he was legally adopted. However, this did not negate the gift to George in the will, which passed to his children.

In the end, the Court varied Ms. Herchenson’s will to provide $175,000 to Michael and $125,000 to Francis. In varying the will, the Court sought to balance the principle of testamentary autonomy against the moral obligations Ms. Herchenson owed to her sons.

The decision in Tomlyn v. Kennedy shows the Court’s expansive power to make orders relating to the distribution of an estate including to the benefit of a party who did not initiate the claim. Despite this power, it is important that a person who wants to benefit from the variation of a will does so in the appropriate manner and participate in the litigation.

Levesque Estate (Re), 2019 BCSC 927

In Levesque Estate (Re), 2019 BCSC 927, the BC Supreme Court considered an application by executors to determine whether an alteration to a will was legally effective.

Upon opening the sealed envelope containing Beverly Levesque’s last will, her daughter discovered that a beneficiary’s name had been obscured using whiteout. In holding the document under a light, the name of the deceased’s eldest granddaughter became discernable.

In its original form, Ms. Levesque’s will divided her estate equally between her six children and that granddaughter. The executors applied to the Court for a determination as to whether the whiteout alteration had the legal effect of removing the eldest granddaughter as a beneficiary. The result would have the effect of dividing the estate solely among the 6 adult children.

In deciding that the whiteout alteration had the legal effect of excluding the granddaughter from inheriting, the Court considered:

  • how and when the alteration was made;
  • if the alternation was a valid alteration in accordance with section 54 of the Wills, Estates and Succession Act (WESA); and
  • If the alteration was not a valid alteration, should it be made effective by an order under section 58 of WESA.

When considering how and when the alteration was made, the Court considered:

  • the circumstances surrounding the initial drafting of the will. Ms. Levesque’s daughter-in-law assisted with this and was able to provide evidence;
  • The chain of custody of the will. The Court accepted that from 2009 when the will was drafted to 2018, the will was held by Ms. Levesque and stored in her nightstand. She lived independently and it was unlikely that anyone else would have had access to her nightstand and, by extension, the will.

After suffering declining health and moving in with her daughter, Ms. Levesque instructed that the contents of the nightstand, including the will, be provided to her. She gave the will to her daughter for safekeeping in a desk drawer. The will was in sealed envelope and remained unopened until after Ms. Leveque’s death; and

  • The Court accepted that, on a balance of probabilities, Ms. Levesque was the person who made the alteration to the will.

In considering when the alteration may have been made, the Court accepted that Ms. Levesque was upset about her granddaughter’s elopement, which occurred approximately 9 years after the will had been drafted.

While the Court also accepted that Ms. Levesque forgave her granddaughter, this did not negate the evidence that she was initially upset with her granddaughter. The Court could not find any alternate plausible reason or explanation for the alteration.

After considering how and when the alteration was made, the Court first considered whether the alteration would have been effective in accordance with section 54 of WESA, which governs alterations to wills. In accordance with this section, an alteration to a will must be signed by the will-maker in the presence of two witnesses. The whiteout alteration did not meet this requirement. It also failed to meet the standards for avoiding the requirement in that it was a substantive alteration that did not make the altered provisions or word illegible. As such, the whiteout alteration could not be considered as a valid alteration of Ms. Levesque’s will within the requirements of WESA.

The Court then turned to section 58, which gives the Court the power to cure deficiencies in will. This includes the power to order that a writing or marking on a will be fully effective as though it had been made as an alteration of the will of the deceased person.

The Court began by considering whether the document was authentic. In finding that Ms. Levesque was likely the person who altered her will, the authenticity requirement was satisfied.

The Court then examined whether the alteration represented a deliberate or fixed and final expression of Ms. Levesque’s intention to remove her granddaughter as a beneficiary under her will.

In finding that the alteration did amount to a deliberate expression of intention, the Court noted the careful application of whiteout to the original document, stating that this showed intention and was “not a casual act.” The Court further noted that there was no evidence that Ms. Leveque suffered from incapacity nor was there evidence that she took further steps to alter her will.

As a result, the granddaughter was excluded from sharing in Ms. Levesque’s estate.

 

Klotz v. Funk, 2019 BCSC 817

The decision of Klotz v. Funk, 2019 BCSC 817 looks at the factors the Court will consider when deciding whether to vary a will in favour of a spouse.

In this case, Herbert Klotz sought to vary the will of his spouse, Lorraine Klotz. Mrs. Klotz’s will gave Mr. Klotz a life estate in her interest in their home, allowing him to occupy the home provided that he paid the expenses relating to the property. Upon Mr. Klotz’s decision to sell the home, or on his death, her interest or the proceeds of sale of same were to pass to her children.

The parties had been in a relationship for approximately 20 years and had held the property as joint tenants until Mrs. Klotz received a terminal cancer diagnosis in the year before her death. Following this diagnosis, she caused the joint tenancy to be severed resulting in her and Mr. Klotz each having a 50% interest in the property as tenants in common. The couple also had new wills drafted setting out the surviving spouse’s right to a life estate, with the residue of their respective estates going to their children. Mr. Klotz initially declined to sign the will, and testified that he relented due to wanting to see Mrs. Klotz live her final days in peace and comfort. 

Following her diagnosis, Mrs. Klotz also began to liquidate and transfer assets, and spent a significant portion of the liquidated funds on travelling with Mr. Klotz and her family prior to her death. At the time of her death, her interest in the real property, valued at approximately $357,000, was the only significant asset of her estate.

The Court declined to vary Mrs. Klotz’s will, finding that the provisions met the standard of what was adequate, just, and equitable in the circumstances.

In determining what is adequate, just, and equitable, the Court considered both Mrs. Koltz’s legal and moral obligations to her spouse, and whether the provisions of her will met these obligations.

In considering her legal obligations, the Court looked at what Mr. Klotz’s right to the property would have been had the parties separated immediately following Ms. Klotz’s diagnosis, referred to as notional separation. The Court based the notional separation on this period as opposed to the date of Mrs. Koltz’s death, as that was the period in which she began to liquidated and dispose of assets.

The Court considered the fact that the property had previously been held in joint tenancy, and that it likely would have been divided equally had the parties separated, leaving Mr. Koltz with a 50% interest on separation. The Court also noted that, had Mr. Koltz wanted to control the handling of the property on separation or death, he could have entered into a marriage agreement.

The acquisition and contribution to the property was included in the Court’s analysis. Equal division of family property on separation is a starting point, and parties can claim an unequal division is situations where equal division would be significantly unfair. The Court looked at the history and acquisition of the real property, which was owned by Mr. Koltz as bare land prior to the relationship commencing, with the house being built by the parties during the relationship, with direct and indirect contributions by Mrs. Kotlz. The Court confirmed that, in absence of other circumstances, unequal contributions to family assets and income will not support a claim that equal division is significantly unfair.

The analysis of the moral obligation considered what society’s reasonable expectations of what a judicious person would do in the circumstances. In determining that Mrs. Koltz had satisfied her moral obligation to her spouse, the Court pointed to the fact that there was little risk that Mr. Koltz would be without a home, as he controlled the terms of the life estate, and that he would receive half of the proceeds of sale if the property were sold. The Court found that Mrs. Koltz had prioritized his interests by postponing the gift to her children, making their interests secondary to those of her spouse.

 

Scurek v. Scurek, 2020 BCSC 450

The recent wills variation case of Scurek v. Scurek, 2020 BCSC 450 considers whether a testator can discharge his moral obligations to his adult daughter by benefitting her children at her expense.

In Scurek, the testator, Joseph, died leaving a will that divided his estate unequally among his son, daughter, and her two sons. The son, Peter, was to receive ½ of the residue of the estate. The daughter, Lydia, was to receive 1/6. Her two sons, John and James, were also to receive 1/6 each.

At the time of his death, Joseph’s estate was valued at $1.9 million and consisted primarily of real estate, bank and investment accounts, and personal effects. However, he also owned considerable assets that passed outside his estate. These other assets, valued at nearly $1 million, all passed to Peter by right of survivorship.

As a result of her unequal treatment, Lydia brought a claim to vary her father’s will. His will being silent as to why Lydia was not treated equally, the Court was left to speculate and try to infer the answer from the evidence as a whole.

At trial, the Court heard how Joseph and his wife, Slavi, who had predeceased him, had immigrated to Canada from Slovenia. They started their own business and were very successful. They assisted their children financially although they favoured Peter. While Lydia had an, at times, difficult relationship with her mother, she had a good relationship with her father up until he died.

Much time was spent considering Peter and Lydia’s respective circumstances. Peter had worked at his parent’s business for almost 30 years. Unfortunately, he was injured in several motor vehicle collisions that resulted in him sustaining permanent cognitive difficulties. At the time of trial, he was unable to work and receiving a disability pension. Still, he had managed to acquire significant assets through his life which, at trial, totalled more than $3 million. Between his pension and rental income, his annual income was approximately $65,000. He also had a wife who worked and took care of him.

Conversely, Lydia only had a Grade 9 education in part because she was briefly kicked out of the family home by her mother when she was 16. Her work history consisted of various entry level jobs. Nevertheless, she was a hard worker. She divorced the father of John and James in the early 1990s and gone on to have several more unsuccessful relationships. She required financial assistance from her parents at various points throughout her life and struggled with alcoholism for a period of time. Unfortunately, she, too, was injured in a motor vehicle collision and rendered unable to work. At trial, she had no significant assets and her annual income was only slightly more than $10,000.

Lydia’s position was that Joseph’s will should be varied to the extent that she receive ½ of the Estate with Peter, John, and James each receiving 1/6. Peter’s position was that the will should not be varied, but if it were that any increase in Lydia’s share should come out of John and James’. John and James took the opposite position to Peter saying that any increase in Lydia’s share should come out of Peter’s.

In reaching its decision that Joseph’s will did not make adequate provision for the maintenance and support of Lydia, the Court focused on the great disparities being their respective financial positions and need for support. As to why Lydia was given less, the Court rejected the suggestion that it was out of concern that she would “waste” her inheritance.

One novel argument advanced by Peter was that he and Lydia had been treated equally if the Court considered the shares to be received by John and James “notionally” belonged to Lydia. In rejecting this argument, the Court said:

[147]    I do not agree with this characterization. As I stated at the outset of these reasons, in my view the testator cannot discharge his moral obligation to his child by benefitting her children at her expense. The plain fact is that under the Will Peter receives one-half of the estate, and Lydia one-sixth. The fact that one-third of the estate is allocated to Lydia’s sons is of no material benefit to her. They are not obliged to support her, and they can be expected to prioritize their own needs.

In the end, the Court varied Joseph’s will to give ½ to Lydia, 2/6 to Peter, and 1/12 each to John and James.

This case establishes that a testator cannot bypass his moral obligations to a child by benefitting his grandchildren. 

Identifying Hazards before Moving a Parked Vehicle

Those of us who took driver training might remember pre-trip safety lists. If you did, you might recall that one of the most important steps you should do before moving a parked car is to check around it for potential hazards. This obligation is set out in section 169 of the Motor Vehicle Act, which states that:

A person must not move a vehicle that is stopped, standing or parked unless the movement can be made with reasonable safety and he or she first gives the appropriate signal.

In the case of Singh v. Lepitre, 2019 BCSC 1728, the court had to consider fault for an accident as between pedestrians who were on a road and the driver who struck them when she went to move her vehicle.

The accident occurred on a quiet residential street where there was no sidewalk. The pedestrians in question had been working on an active construction site and were on their lunch break at the time of the accident. The two pedestrians sat on the road about 2 feet from the curb between two parked cars. Both parked cars were roughly 6 feet away from the spot where they sat to eat lunch.

The driver worked several blocks away and had parked her car on the street for the morning. She had intended to run errands on her lunch break. She approached her vehicle from the rear and did not see the pedestrians as she got into her vehicle. Once in her vehicle she proceeded to drive forward before turning into the main area of the road, but as she moved forward she saw a construction worker running towards her waving his arms. She immediately stopped her vehicle and when she exited her vehicle saw one of the pedestrians under her vehicle.

Following trial, the court determined that the driver was required to act in the same manner as a reasonably prudent motorist in light of the circumstances. However, motorists are not expected to anticipate all possible hazards and the standard of care is not perfection. Of important consideration in this case was that the accident occurred on a residential street with no sidewalk. The driver testified that it was common for pedestrians and children to walk and play in the parking area along the road. The court further noted that the presence of the construction site on the road increased the chance that pedestrians would be located in the road in front of the construction site.

As a result, the court determined that the driver did not pay attention before moving her vehicle, did not act in a reasonable manner considering the circumstances of the street, and found her 80% at fault for the accident.

As this case shows, it is important for drivers to always check that there are no pedestrians or other hazards around their vehicle before moving it from a parked position especially when is has been left for an extended period in a public space.

Civil Jury Trials Suspended for 1 Year

Effective September 28, 2020, all civil jury trials will be suspended for one year. The Ministry of the Attorney General announced this measure in response to the ongoing threat posed by COVID-19.

Civil jury trials had previously been suspended due to COVID-19. This announcement extends that suspension to October 4, 2021.

As a result, any civil lawsuit, including ICBC cases, that had been scheduled to be tried before a jury will now be tried before a judge alone. Unless a judge otherwise orders, parties will not be permitted to apply to adjourn their cases to a latter date so as to have their matter tried before a jury.