Vliet (Re)

2007 BCSC 1251 Vilet (Re) IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Vliet (Re), 2007 BCSC 1251 Date: 20070827 Docket: 36192 Registry: Vernon Re: The Estate of Ernest Ray Vliet, Deceased Before: The Honourable Mr. Justice Smart Reasons for Judgment Counsel for Robert George Vliet: J.D. Metherell Counsel for Patricia Irene Florida Greenwood Vliet: B.H. Kirkpatrick Date and Place of Hearing: July 23, 2007 Vernon, B.C. I. INTRODUCTION [1] The central issue on this application is whether the children of the Deceased, Ernest Ray Vliet, are barred by the six month limitation period prescribed in s.98(3) of the Estate Administration Act, R.S.B.C. 1996, c. 122, (the "Act") from challenging Patricia Irene Florida Greenwood Vliet's entitlement, as a spouse, to be the beneficiary of the Estate. The issue arises in the context of their application to file a Statement of Claim. [2] I will first review the background to this application and the submissions of counsel before providing my analysis for reaching the decision that I have. II. BACKGROUND [3] Ernest Ray Vliet died on November 2, 2004. On January 26, 2005 a Caveat was filed pursuant to the Act in the Supreme Court in Vernon by Robert George Vliet, the Deceased's eldest son. The Caveat was filed by his counsel, Dale Kermode, on behalf of all six children of the Deceased. [4] Subsequently a Notice of Motion and an Amended Notice of Motion were filed requesting: § Letters of Administration "be granted to an independent and bonded Administrator"; § Pursuant to s.98 of the Act, an Order determining whether Patricia Irene Florida Greenwood Vliet, is entitled to any part of the estate herein; and § Directions as to the manner of dealing with the s.98 Application. [5] Mr. Kermode, in an Amended Outline filed on the Amended Notice of Motion, requested at para. 21: It is submitted that this matter must proceed to trial and: a. Pleadings should be filed; b. There should be full and comprehensive production of documents; c. Pre-trial examinations of the parties should occur. [6] The Motion was heard by Metzger J. on April 26, 2005. His Reasons for Judgment were filed on May 16, 2005, 2005 BCSC 724. In his Reasons, Metzger J. stated that the "parties have agreed that the only issue before me is who should be the administrator, Patricia Vliet, Robert Vliet, or an independent third party?" He decided that Patricia Vliet should be appointed as the sole Administratrix. Although Metzger J. appeared to find facts that would entitle Patricia Vliet to be the beneficiary of the Estate, he qualified those findings in Supplementary Reasons dated July 20, 2005, 2005 BCSC 1084: These Supplementary Reasons for Judgment are to clarify that my determination that Patricia Vliet continued to be a spouse of the deceased Ernest Ray Vliet was solely for the purpose of determining her eligibility to be appointed the administratrix of the estate. The trial judge in this matter is in no way bound by this determination. [7] On June 7, 2005, other counsel at Mr. Kermode's law firm, Nixon Wenger, wrote to counsel for Patricia Vliet, Jeffrey Boschert, confirming that Mr. Boschert would be drawing the Order and it would include that: The Section 98 entitlement issue be referred to the trial list for determination with pleadings to be filed ... . [8] Counsel also stated that he "will attempt to draft a Statement of Claim and provide it to you when it is ready". [9] Mr. Boschert replied on June 10, confirming that he would draw the Order and stating: We look forward to receiving your Statement of Claim. I intend to refer the Section 98 trial proceeding to a litigator in our office and will advise you shortly as to who will be handling that aspect of the case. I will continue to be involved as legal counsel for the estate administration matters. [10] Having received a draft Order from Mr. Boschert on June 15, counsel at Nixon Wenger responded on June 17, stating, in part: You will note that I did not put anything in the Order dealing with the filing of pleadings. I did so because on checking with the clerk (clerk notes attached) Justice Metzger did not make the Order regarding pleadings. You and I did agree, however, that pleadings should be filed with our office drafting a Statement of Claim. I shall have a Statement of Claim to you in due course. [11] On August 26, 2005, Mr. Kermode wrote to Mr. Boschert suggesting mediation as a means of arriving at a settlement between the parties, but adding: We should also move concurrently toward trial and trial preparation. We will want to examine your client for approximately one day, and now enclose a Demand for Discovery of Documents. Kindly acknowledge delivery on the enclosed copy of this letter. My assistant will contact yours with regard to mutually convenient discovery dates and dates for trial. We estimate that 5 days will be required for trial. [12] Mr. Boschert responded on September 22, 2005, stating, in part: ... It is premature to proceed with Examinations for Discovery or Discovery of Documents and trial scheduling without pleadings being filed to define the issues between the parties. We have discussed filing pleadings previously and I understood you agreed that they should be filed. [13] The Order from the hearings before Metzger J. was filed on September 16, 2005. In addition to ordering that Patricia Irene Florida Greenwood Vliet be the administratrix, the Order states in part: The question of Patricia Irene Vliet's entitlement to share in the estate of Ernest Ray Vliet under Section 98 of the Estate Administration Act be referred to the trial list. [14] Letters of Administration were granted with bond to Patricia Irene Florida Greenwood Vliet by the Supreme Court on December 21, 2005. [15] After December 21, 2005, there was correspondence between counsel concerning certain assets of the Estate. On June 8, 2006, Mr. Kermode wrote to Mr. Boschert advising him that Ms. Metherell "... will be taking over conduct of this matter from me". During the summer, there was correspondence between Mr. Boschert and Ms. Metherell, again concerning certain assets of the Estate. [16] On September 13, 2006, Mr. Boschert wrote to Ms. Metherell stating: Further to our telephone conversation of September 11, 2006, I confirm that I have received instructions from my client Pat Vliet to accept service of the Statement of Claim on her behalf. [17] On September 15, 2006, Ms. Metherell wrote to the Vernon Court Registry enclosing two copies of the Statement of Claim for filing. They were returned by the Registry with a handwritten note stating: "Cannot be filed unless there is a Court Order allowing same. Must start a new action with a Writ and Statement of Claim". [18] On September 26, 2006, Ms. Metherell wrote to Mr. Boschert seeking his consent to file the pleadings under Action No. 36192, and enclosing a Consent Order. There was no response. She wrote again on October 12, 2006. There was no response until November 14, 2006, when Mr. Boschert wrote: The Honourable Mr. Justice Metzger's Order of Tuesday, April 26, 2005 and Friday June 3, 2005 did not address the filing of pleadings in action No. S36192 and therefore it is inaccurate to say in the Consent Order that the pleadings are filed in accordance with the Honourable Mr. Justice Metzger's Orders. After the application to appoint an administrator for the estate Mr. Kermode and I discussed that pleadings should be filed either in the probate proceeding or separately but no further steps were taken on behalf of your clients. Further, we are of the view that the limitation period has expired as Section 98 of the Estate Administration Act requires that an application under section 98 must not be made unless it is commenced not later than 6 months after the date of the issue of letters of administration. Letters of Administration were issued on December 21, 2005 and therefore the time limit for proceeding has expired. [19] Affidavits from Mr. Kermode, Mr. Boschert and Ms. Metherell were filed on this application. In Mr. Kermode's affidavit, he states: 3. The Order of Mr. Justice Metzger referring this matter to the trial list is consistent with what I recall to be the mutual understanding of Mr. Boschert, solicitor for the Defendant, and myself that pleadings would be filed and that discoveries would proceed under the Vernon Registry Action No. 36192. 4. At no time following Mr. Justice Metzger's Order did Mr. Boschert express to me that he expected the children of Ernest Ray Vliet to file a separate proceeding in order to address the matters that Mr. Justice Metzger had referred to the trial list. 5. I recall being aware of the six month limitation period for commencing a separate proceeding under Section 98 of the Estate Administration Act, and I was not concerned about it because the issue raised under Section 98 was being dealt with in the existing proceedings, Vernon Registry Action No. 36192, and in particular, in the Order of Mr. Justice Metzger which referred the issue of Mr. Boschert's client's entitlement to share in the Estate of Ernest Ray Vliet under Section 98 be referred to the trial list. [20] In Mr. Boschert's affidavit, he states at para. 14: ... I recall there was a mutual understanding with Mr. Dale Kermode of Nixon Wenger that pleadings would be filed. The probate application for the estate of Ernest Ray Vliet had been assigned Vernon Registry No. 36049. The caveat filed by Mr. Kermode on behalf of Robert George Vliet was assigned Vernon Registry Action No. 36192. My recollection is that Mr. Kermode and I discussed whether the court registry would assign a different Court file number upon Mr. Kermode's clients filing a Statement of Claim. Mr. Kermode indicated to me that he intended to file the Claim under the Vernon Registry Action No. 36192, to which I had no objection at the time. [21] In Ms. Metherell's affidavit, she states at para. 6: On September 11, 2006, I had a telephone conversation with Jeffrey Boschert ... regarding the best way to handle this matter. We discussed that the filing of pleadings would be an appropriate way to frame this case. My recollection is that Mr. Boschert and I agreed to file pleadings under the original case number S36192 in the Vernon Registry. Mr. Boschert told me during this conversation that he would seek instructions to accept service of the Statement of Claim on behalf of his client. He did not at any time raise the issue of a limitation defence. III. SUBMISSIONS OF COUNSEL [22] Ms. Metherell, for the applicant, seeks the following relief: 1. Robert G. Vliet be at liberty to file the Statement of Claim, attached as Appendix A, in the within action to stand as pleadings in the action; 2. Alternatively, an Order for directions with respect to the filing of the attached Statement of Claim in a new proceeding to be commenced; 3. An Order that the filing of the Statement of Claim in such a new proceeding is not barred by the limitation period set out in Section 98 of the Estate Administration Act. [23] With respect to my jurisdiction to provide the relief sought, Ms. Metherell relies on the Court's inherent jurisdiction. [24] Ms. Metherell submits that the issue sought to be pleaded has been a "live issue" since the Caveat was filed. She emphasizes that Metzger J. directed that this issue be referred to the trial list. She also refers me to Chan v. Lee Estate, 2002 BCSC 678, 47 E.T.R. (2d) 163, where in a Wills Variation Act, R.S.B.C. 1996, c. 490 proceeding, Hood J. found that the defendants were estopped from relying on the expiration of the limitation period. [25] Mr. Kirkpatrick, on behalf of Patricia Vliet, submits that I have no jurisdiction to grant the relief sought. [26] Mr. Kirkpatrick referred me to Rule 1(13) and Rule 10 of the Supreme Court Rules, B.C. Reg. 221/90, and argues that the Amended Notice of Motion heard by Metzger J. should have proceeded by way of a Petition. [27] He submits that the Caveat filed pursuant to Rule 61(37) only remained in force for six months and that this application is a fresh application and is precluded by the limitation period prescribed in s.98(3) of the Act. He argues that the circumstances here are very different from the circumstances in Chan: there were no promises made by this respondent and nothing misleading in her conduct or her counsel's conduct. This, he says, is simply a case of counsel missing a limitation period. [28] Mr. Kirkpatrick submits that the application before Metzger J. provides no support for this application. Metzger J., on the request for directions, simply referred the "question of Patricia Irene Vliet's entitlement to share in the Estate ... [to] ... the trial list". It remained necessary for counsel to file pleadings and commence an action before the expiration of the six month limitation period. Mr. Boschert's willingness to accept service of the Statement of Claim in September 2006 was not a waiver of the limitation period or an acceptance that a Statement of Claim could be filed. Counsel was simply facilitating service of a pleading, not acknowledging its validity. [29] Ms. Metherell responds that she is prepared to proceed by Petition now and later seek directions from this Court as to whether pleadings should be filed. IV. ANALYSIS [30] A Caveat is a notice to the Court not to allow proceedings to be taken concerning an estate or a will without giving notice to the caveator. [31] The effect of a caveat is explained in the British Columbia Probate and Estate Administration Practice Manual 2d ed. (Vancouver: The Continuing Legal Education Society of British Columbia, 2007), where at s.18.6, it states: A caveat is filed after death but before a grant (probate or administration) has issued. A caveat ensures that the caveator will be informed if an application for a grant is made. This notice is to the advantage of those not entitled to notice of an application for a grant under s.112 of the Estate Administration Act, R.S.B.C. 1996, c. 122. A caveat allows the caveator time to decide whether or not to oppose an application for a grant. ... While a caveat is in force, it essentially stays proceedings in the estate - no grant of administration or probate may be made (Supreme Court Rule 61(38)). When an application for a grant is made while there is a valid caveat in the file, the registry will advise both the caveator and the applicant and will retain the application, but a grant cannot issue while the caveat remains in force. [32] Administrators of an estate have an important task to perform. They must administer the estate responsibly and expeditiously. Beneficiaries, creditors and others claiming an entitlement in the estate may be prejudiced by delays in its administration. Limitation periods are prescribed for good reasons. Section 98(3) of the Act provides such a limitation: An application to the court under this section must not be made unless it is commenced not later than 6 months after the date of the issue of letters of administration of the deceased spouse's estate. [33] Here, an "application" was made pursuant to s.98 of the Act before the expiration of the six month limitation period prescribed by s.98 (3). The Caveat, the Notice of Motion, and the Amended Notice of Motion were all filed in the Supreme Court and all raised the issue of the applicant's entitlement to the Estate. [34] When the motion was heard by Metzger J., it was understood by the parties that the issue of who was entitled to be the beneficiary of the Estate would proceed to trial and that pleadings would be filed. This remained the understanding of all counsel in the months following until September 2006 when the Registry rejected the applicant's attempt to file a Statement of Claim. [35] I need not decide whether the application heard by Metzger J. should have proceeded by way of a Petition. Assuming, without deciding, that Mr. Kirkpatrick is correct, and the application should have been by way of a Petition, what is the effect of not doing so on this application to file a Statement of Claim? [36] The Supreme Court Rules provide a discretion to a Court where there has been "non-compliance" with the Rules: R.2(1) Unless the court otherwise orders, a failure to comply with the rules shall be treated as an irregularity and does not nullify a proceeding, a step taken or any document or order made in the proceeding. ... R.2(3) The court shall not wholly set aside a proceeding on the ground it was required to be commenced by an originating process other than the one employed. [37] This discretion should be read together with Rule 1(5) which explains the object of the Rules: The object of these rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits. [38] Rule 52(11) is also relevant. It states that: On an application a court may ... (d) Order a trial of the proceeding, either generally or on an issue, and order pleadings to be filed ... . [39] Rule 61 of the Supreme Court Rules deals with the non-contentious administration of estates. Rule 62 deals with the contentious administration of estates. Caveats are provided for in Rule 61. The administration of this Estate is contentious. Notwithstanding that the process for filing a Caveat is found in Rule 61, it may be that Rule 62 applies and a Writ of Summons and Statement of Claim should have been filed. These were issues with respect to which Mr. Kermode sought directions from Metzger J. It is what the applicant now seeks to do. It will permit the issues to be properly framed and the issues to be effectively litigated. [40] Mr. Kirkpatrick has not advised me of any actual prejudice Ms. Vliet would suffer as the Administratrix of the Estate if this application were granted. Assuming, without deciding, that there has been non-compliance with the Rules, I find that it would not be unfair to permit the applicant to now file the requested Statement of Claim in the 36192 proceeding. [41] An "application" was made to the Court within the time required by s.98(3) of the Act. A request for directions was made. As stated, at the time the Motion was heard by Metzger J., the parties agreed that the issue of who should be the beneficiary of the Estate would proceed to trial and that pleadings would be filed. Considering the object of the Rules and the discretion provided by the Rules, I will permit the applicant to file the Statement of Claim attached as Appendix A to this application. I therefore make that Order. [42] The costs of this application will be costs in the cause. Smart, J.