Litigation – Vexatious Litigants in the Courts?

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Under Section 18 of the Supreme Court Act of British Columbia and Section 29 of the Court of Appeal Act of British Columbia, a person can be deemed a vexatious litigant.  Section18 of the Supreme Court Act is stated below and Rule 29 is nearly identical.

18   If, 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.

In a recent BC case, Hoessmann Estate v. Aldergrove Credit Union, 2018 BCSC 256, a litigant was deemed by the Court to be a vexatious litigant.  The circumstances of this case and the litigant are as follows.

The litigant was designated as the Executor of her father’s estate and proceeded to take legal action in regards to property that was devised in the Will.  The property had a mortgage that the litigant defaulted on which resulted in a subsequent foreclosure and sale.  The litigant sued the bank who foreclosed on the property as well as the purchaser of the property.   The litigant alleged fraud, bad faith and a multitude of other causes all without grounds to do so.  This commenced an over five year process of proceedings in which the litigant brought any possible proceeding she could even if the claim had no merit.

During all of this time, the other beneficiaries under the Will sought for a variation of the Will which was granted removing her as the Executor under the estate which meant that she no longer had standing to bring action on behalf of the estate with regard to the foreclosed property.

The Court stated at paragraph 57 of the decision: “As a result of the foreclosure and the choices she made in depleting the advances she received from the estate, the litigant is now destitute and lives in a women’s shelter.”  This is a very unfortunate result.  It is hard to know exactly what motivated the litigant to pursue so many frivolous claims, but it may be a lesson learned for her and other persons with similar proclivities.

When all was said and done, over 23 Masters and Judges had heard applications resulting in costs of over $200,000 being awarded against the litigant.  The costs awarded against her were more than three times the value of the mortgage on the property that was the subject of all the litigation.

The litigant was deemed a vexatious litigant which meant that she would be unable to bring action against the bank or the purchaser of the property without first seeking leave form the court.

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Family Law – Spousal Support as Compensation for an Economic Advantage or Disadvantage

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In BC, a Court can award spousal support to provide redress to a recipient spouse for an economic disadvantage arising from the marriage or for conferring an economic advantage on a payor spouse.  This is known as “compensatory support.”

In the recent case of Wilson v. Garbella, 2018 BCSC 864 [“Wilson”], the Court adopted the BC Court of Appeal case Chutter v. Chutter and summarized the principles which inform compensatory support, writing:

[50]      The compensatory basis for relief recognizes that sacrifices made by a recipient spouse in assuming primary childcare and household responsibilities often result in a lower earning potential and fewer future prospects of financial success…

[51]      In addition to acknowledging economic disadvantages suffered by a spouse as a consequence of the marriage or its breakdown, compensatory spousal support may also address economic advantages enjoyed by the other partner as a result of the recipient spouse’s efforts…the doctrine of equitable sharing of the economic consequences of marriage and marriage breakdown underlying compensatory support “seeks to recognize and account for both the economic disadvantages incurred by the spouse who makes such sacrifices and the economic advantages conferred upon the other spouse.”

In Wilson, the Court found that the Claimant experienced disruption of her employment by moving to Halifax while the Respondent trained for submarine service and acted as primary caregiver for the parties’ child for the last five years of the relationship.  In the circumstances, the court found that the claimant suffered a loss of income earning potential by subordinating her needs to those of her family, and, by assuming primary responsibility for the parties’ child, assisted the Respondent in furthering his career.

The Court therefore found the Claimant was entitled to compensatory support of $450.00 a month for four years.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.

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Adopted Children’s Rights Under s.60 of Wills Estates and Succession Act of British Columbia

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s.60 of the British Columbia Wills, Estates and Succession Act (WESA) allows the court to adjust the Will of a Will-maker if, in the courts opinion, the Will does not adequately provide for the Will-makers spouse or children.

Does a child who is adopted by other parents after birth, but who is named as a beneficiary under his birth mother’s will, have standing to seek relief under s. 60 of the WESA?

This question was answered in a recent British Columbia Supreme Court decision Boer v Mikaloff, 2017 BCSC 21.  The facts of this case were as follows.  The Plaintiff who was an adopted child sought a variation of his birth mother’s Will.  The Plaintiff was born in 1967 and was legally adopted about a year later.  Approximately 30 years later the Plaintiff and his birth mother reunited and enjoyed a caring relationship.  This led to the Plaintiff’s birth mother designating the Plaintiff as a beneficiary under her Will.  After his birth mother’s death, the Plaintiff tried to vary the Will of his birth mother by virtue of s. 60 of the WESA.

The Court decided that the Plaintiff was unable to vary the Will under s. 60 of the WESA.  The court based its decision on s. 37(1)(c) of the British Columbia Adoption Act and s. 3(2)(a) of the WESA.

Section 37(1)(c) of the Adoption Act states that birth parents cease to have any parental rights or obligations with respect to the child.  When applying 37(1)(c) to the facts of Boer, the Plaintiff is not considered a child of his birth mother and is therefore unable to utilize s.60 of the WESA.

Section 3(2)(a) of the WESA states “the child is not entitled to the estate of his or her pre-adoption parent except through the will of the pre-adoption parent”.  The Court states at paragraph 26: “Section 3(2)(a) of the WESA serves to confirm that an adopted child is not within the family relationships of his or her birth parents for the purposes of WESA.  In other words, an adopted child relative to a pre-adoption parent will-maker is in the same position as a non-family member.”

Since the adopted child is in the same position as a non-family member they will be unable to take advantage of s. 60 of the WESA.

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Real Estate – Is a Tent City Allowed?

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Tent Cities have been popping up in British Columbia, some in large urban areas such as Victoria and Vancouver and others in smaller communities such as Abbotsford and Nanaimo.  Advocates of these tent cities state that tent cities act as a community for homeless people providing enhanced safety and a sense of belonging.  How have the BC Courts treated these tent cities?

In British Columbia v Adamson, 2016 BCSC 584 the application for removal of the tent city by interim injunction failed.  The Province applied unsuccessfully for the removal of the tent city which was located on Victoria Courthouse property.  The Court determined that the Province failed to meet the test for granting an interim injunction which is laid out in RJR MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.  The test in which all elements have to be passed is as follows:

  1. Has the applicant demonstrated that there is a fair question to be tried;
  2. Will the applicant suffer irreparable harm if the injunction is not granted; and
  3. Does the balance of convenience favour granting the injunction?

The Court found that there was a fair question to be tried but the Province did not fully demonstrate they would suffer irreparable harm nor did the balance of convenience weigh in favour of the Province.

The court based its decision on a great deal of evidence which demonstrated this particular tent city to be a safe-haven for the homeless that were living there.  The evidence proffered described the tent city as a community with rules and governance.

A second application was heard for an interim injunction on the Victoria Courthouse tent city.  The Court’s decision on this second application is recorded as British Columbia v. Adamson, 2016 BCSC 1245.  In this application the Province was successful.  The Court based its decision on the changes occurring in and around the tent city.  The tent city governance had fallen apart as well concerns began to crystalize relating to the health and safety of the surrounding community.  The Court ordered that the tent city residents were to vacate the premises as soon as additional housing from the Province became available.

In another British Columbia Court decision Vancouver (City) v. Wallstam,

2017 BCSC 937 an application for an interim injunction to dismantle a tent city was heard.  Again, the RJR MacDonald test was used.  The Court determined that the applicant City was unable to prove that irreparable harm would be suffered.  The evidence spoke similarly to Adamson in that this tent city was a safe-haven for the homeless.  The tent city was vital in maintaining the homeless people’s security of the person.

The decisions mentioned above support the view that only once a tent city begins to negatively impact the surrounding community will an interim injunction be granted.  As long as the tent city remains a civilized community, they are allowed to stay.  The availability of alternative housing is another factor that the Courts have considered in allowing or disallowing the injunctions to dismantle a tent city.

From these decisions there is much left unclear about the public’s rights in relation to these tent cities.  Perhaps future decisions will tender a new legal test to be applied in these tent-city circumstances.

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