General Litigation and Cases of Interest Published Cases

  • Successfully obtained indemnification for legal fees (sometime called solicitor client costs) against a defendant at the conclusion of trial.
  • Successful defence of a summary trial in part on the basis that the Plaintiff was litigating in slices.
  • Successful trial against a defendant who had been scammed by a third-party fraudster in an email scam. The court clarified that it is the party most able to avoid the fraud that bears the risk of the fraud and associated loss.
  • Successfully defended multiple appeals on the basis that the appellants could not establish an error on the applicable standard of review.
  • Clarified in the court of appeal what is substantial success and whether there should be more than one bill of costs when there are multiple actions/appeals are heard at the same time.
  • An appeal regarding the amount of security a court should order when a certificate of pending litigation is discharged on the basis of hardship pursuant to sections 256 & 257 of the Land Title Act.
  • This was an interesting case in which Duncan Magnus appeared before a 5 judge panel in the British Columbia Court of Appeal and convinced the Court to change the law regarding when Petitions can be referred to the Trial List or can be heard by the court when a “triable issue” arises.

    This appeal arose from a chambers decision resulting from the referral of three petitions to the trial list. The appeal provided guidance on when a court can investigate an adult’s competency and overturned the longstanding test of when to refer a petition to the trial list.

    A fresh take on referring Petitions to the Trial List.

    The Court of Appeal was requested to form a five Judge panel for the express purpose of revisiting the test to refer a petition to the trial list. The long-standing test has been whether there was a bona fide triable issue. The Court overturned the test, stating that “a judge hearing a petition proceeding that raises triable issues is not required to refer the matter to trial. The judge has discretion to do so or to use hybrid procedures within the petition proceeding itself to assist in determining the issues”. While the Court declined to prescribe a test for when a petition should be referred to the trial list and indicated that it should be determined on a case by case basis, the court did indicate that the statutory context was important to determine whether a hybrid procedure was appropriate in addition to the object of the Rules of Court, the amount involved, the importance of the issues and complexity of the proceeding.

    As a result of this decision, there are a few important changes that follow to petitions generally (not just for PPA petitions):

    1) Petitions should not be referred to the trial list automatically when a triable issue is raised. The decision affects not just PPA maters but is wide ranging, affecting commercial disputes, trusts, judicial review and foreclosures name a few.

    2) Historically, petitions have been summary in nature, but ease in referring petitions to the trial list leads to unnecessary complexity, cost and delay. Significant effort is involved in preparing a petition, a response to the petition and supporting affidavits, which often seems wasted when starting over after the matter has been referred to the trial list. With the door open to the court to decide a petition even when there is a triable issue, it seems to me that litigants will be better able to access the courts in an efficient, effective and timely manner.

    3) The Court highlighted that modern approach to litigation is to allow parties and the courts to tailor trial and pretrial procedures to a given case. Further, hybrid procedures are available within the petition proceeding (such as cross-examination and document disclosure). While this creates flexibility for the Court to fashion a procedure to reflect the necessity of a certain case, in my view, it puts an obligation on counsel to consider what types of adjustments to procedure should be contemplated at the petition hearing. For example, if certain documents are necessary, should they be obtained prior to the hearing; if a certain witness should give viva voce evidence, what arrangements need to take place. I would also think that where counsel are seeking to tailor procedures that timely discussions between counsel would be of assistance.
  • An example of a successful application to file a counterclaim and add parties to a claim after the expiration of a limitation period expiring.
  • We successfully defended a solicitor in a complicated conspiracy to injure by illegal means case. The Plaintiffs sought recission of a share sale, damages and disgorgement of profits on the basis of alleged threats. The case turned on the credibility of the parties. Through cross examination of the plaintiffs, led to adverse finding of credibility and a dismissal of the claims against the defendants on the basis of a finding that the threats did not occur.
  • Successfully defended an application by ICBC on behalf of the defendants to have the Plaintiff in a Motor Vehicle accident declared to be a Worker and thus barred from pursuing court proceedings to compensate her for injuries suffered in a motor vehicle accident.
  • Defence of a person charged with driving over 0.8 on the basis that there had been an inordinate delay.
  • An application for double costs based upon an offer settled.
  • Successfully challenged the procedure that animals were seized and held without a fair hearing, and the matter was remitted for a new hearing.
  • Successfully defended a summary trial application by the SPCA for costs of care on the basis that the Defendant was not an owner under the Act.