Brenner v. Brenner

Brenner v. Brenner

Appeal allowed in part: the chambers judge erred in applying s.3(3)(d) (ten-year limitation) without deciding who was in possession; where a plaintiff is in possession of land and seeks a declaration about title, s.3(4)(j) (no limitation period) governs and is the more specific provision in that factual context; matter remitted for reconsideration under s.3(4)(j); fresh evidence denied.

Citation
2010 BCCA 553
Parties
Plaintiff/appellant: Carol Elizabeth Brenner; Defendant/respondent: Shannon Lea Brenner
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
6 December 2010
Procedural Posture
Civil Trust and Property / Appeal From Dismissal for Want of Prosecution; Remitted to Trial Court for Reconsideration
Outcome
Appeal allowed in part. Chambers judge's dismissal set aside and matter remitted to Supreme Court of British Columbia for reconsideration applying s.3(4)(j) of the Limitation Act. Fresh evidence application refused. Costs of remitted application and appeal reserved to the trial judge.
Legal Topics
Declaration of Trust, Limitation Periods, Possession, Dismissal for Want of Prosecution, Fresh Evidence
Source Language
English
Property Law Trusts Limitation of Actions Civil Procedure Evidence Declaration of Trust Limitation Periods Possession +2 more

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Parties

Carol Elizabeth Brenner

Plaintiff/appellant

Shannon Lea Brenner

Defendant/respondent

Procedural Posture

Civil Trust and Property / Appeal From Dismissal for Want of Prosecution; Remitted to Trial Court for Reconsideration

Legal Issues

  1. 1 Whether the chambers judge erred in finding the plaintiff had no reasonable excuse for a 13-year delay
  2. 2 Whether the defendant suffered serious prejudice from the delay such that dismissal was warranted
  3. 3 Which Limitation Act provision applies: s.3(3)(d) (10-year) or s.3(4)(j) (no limitation) when plaintiff is in possession

Ratio Decidendi

Appeal allowed in part: the chambers judge erred in applying s.3(3)(d) (ten-year limitation) without deciding who was in possession; where a plaintiff is in possession of land and seeks a declaration about title, s.3(4)(j) (no limitation period) governs and is the more specific provision in that factual context; matter remitted for reconsideration under s.3(4)(j); fresh evidence denied.

Court Disposition

Appeal allowed in part. Chambers judge's dismissal set aside and matter remitted to Supreme Court of British Columbia for reconsideration applying s.3(4)(j) of the Limitation Act. Fresh evidence application refused. Costs of remitted application and appeal reserved to the trial judge.

Orders

  • Set aside dismissal for want of prosecution and remit matter to Supreme Court of British Columbia for reconsideration applying s.3(4)(j) Limitation Act
  • Refuse admission of the proposed fresh affidavit evidence of Sandy Dahl