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CIVIL PROCEDURE - Summary judgments - To dismiss action

Wednesday, September 11, 2019 @ 6:25 AM  


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Appeal by the executrix from an order striking out her pleadings and dismissing her action. The appellant acted as executrix for both parents. The parents entered into various agreements with the respondents which led to litigation. The litigation led to a settlement agreement. In the present action, the appellant sought to set aside the settlement agreement based on fraud and misrepresentation. It was also alleged that the defendants were in breach of the terms of that agreement. In their applications, the respondents did not address the issues raised by the appellant in respect of the settlement agreement. The appellant argued the judge erred by failing to treat her fairly as a self-represented litigant and by applying the incorrect burden of proof on an application for summary judgment.

HELD: Appeal allowed. The judge treated the appellant fairly throughout the proceeding. The judge erred in not permitting the appellant to amend her pleadings. There was a triable issue in respect of the duress and undue influence claim. While the judge appeared to apply the bound to fail test, she was in fact considering the matter as if she were a summary trial judge weighing the evidence in support of the claim and drawing inferences from the fact that the mother was represented by experienced and senior counsel in the negotiation of the settlement agreement. As the respondents did not address the duress/undue influence allegation directly in their affidavits, the judge could not conclude that there was no genuine issue for trial in respect of the allegations impugning the settlement agreement. In the situation of a defective pleading on an issue that did not reach the no triable issue threshold, in a claim brought by a self-represented litigant, the proper course was to strike the pleading and permit the litigant to seek appropriate amendments.

Beach Estate v. Beach, [2019] B.C.J. No. 1390, British Columbia Court of Appeal, R.J. Bauman C.J.B.C., M.V. Newbury and G.J. Fitch JJ.A., July 26, 2019. Digest No. TLD-September92019007