Hoessmann Estate v. Aldergrove Credit Union

2018 BCSC 256 Hoessmann Estate v. Aldergrove Credit Union IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Hoessmann Estate v. Aldergrove Credit Union, 2018 BCSC 256 Date: 20180222 Docket: S134593 Registry: Vancouver Between: Janet Jasmine Hoessmann, Executor of the Estate of Karl Oskar Hoessmann Plaintiff And Aldergrove Credit Union and Devnor Developments Defendants Before: The Honourable Mr. Justice Ball Reasons for Judgment Counsel for Plaintiff: Janet Hoessmann (Appearing in Person) Counsel for Defendant, Aldergrove Credit Union: J. Goheen Place and Date of Hearing: New Westminster, B.C. January 19, 2018 Place and Date of Judgment: Vancouver, B.C. February 22, 2018 Introduction [1] This application comes in the context of a number of proceedings involving the estate of Karl Oskar Hoessmann. The respective matters have had a long and tortured history as will be reviewed in more detail below. However, a high-level overview is necessary. [2] The deceased was survived by one daughter, two sons, and an estranged spouse. The deceased's will named the plaintiff in this action, Janet Jasmine Hoessmann, as executor of the estate. The plaintiff had lived with her father on the family property (the "Property"). After his passing, she sought to remain in the home, but failed to maintain mortgage payments. While the specifics are set out below, the defendant, Aldergrove Credit Union ("ACU"), ultimately commenced foreclosure proceedings against the estate, and was granted an order nisi with a six month redemption period on May 17, 2012. The Property was sold pursuant to a court order when the mortgage in default was not redeemed before the redemption period expired. A number of appeals by the plaintiff were dismissed. [3] Meanwhile, the plaintiff's brothers had commenced a wills variation action. The will of Karl Oskar Hoessmann was varied, and as part of those proceedings, Ms. Hoessmann was removed as executor of the estate on September 27, 2013. [4] The Notice of Civil Claim in this action was filed on June 18, 2013 by the plaintiff. Claims are made against ACU, and Devnor Developments ("Devnor"), the ultimate purchaser of the Property. The claims are apparently on behalf of the estate for the loss caused by the foreclosure. Application Overview [5] ACU applies to dismiss this action pursuant to Rules 9-5 and 9-7 of the Supreme Court Civil Rules, B.C. Reg. 168/2009. The defendant further seeks special costs coupled with an order that the plaintiff be designated a vexatious litigant not permitted to bring any further action or proceedings in this Court without first obtaining leave of this Court. [6] ACU submits that the Court should grant the relief sought pursuant to Rule 9-5 of the Supreme Court Civil Rules, as the present proceedings are barred by the doctrines of res judicata and collateral attack. [7] In the alternative, ACU seeks dismissal of any claims not covered by res judicata or collateral attack on the merits pursuant to a summary trial proceeding under Rule 9-7. Hearing of Application [8] At the opening of this chambers application, the plaintiff applied for the Court to recuse itself. The basis for the recusal application was that the same judge made an order in 2012 to allow ACU to market the Property, subject of the mortgage which was being foreclosed, and where the redemption period had already expired. The Court dismissed the recusal application. [9] Thereafter, the plaintiff requested an adjournment for the purpose of obtaining a different judge. That application was also refused. The plaintiff then advised the Court that she intended to leave the courtroom. The Court advised the plaintiff that the application would continue in her absence. The application was heard with submissions only from counsel for ACU. Style of Cause [10] While the style of cause in this action - commenced in early 2013 - presently refers to the plaintiff as the executor of the late Mr. Hoessmann's estate, by order of McKinnon J. pronounced on September 27, 2013, she was replaced as the executor of the estate by Solus Trust Company Limited ("Solus"). In the Reasons for Judgment of McKinnon J., it is noted at para. 7 that probate was granted to the plaintiff by order of Masuhara J., on November 16, 2011. However, no probate fees were ever paid, and no Letters Probate were actually issued. [11] Solus has declined to participate in this action and takes no position on the application brought by ACU. The legal effect of the removal of Ms. Hoessmann as executrix of the estate, which is virtually determinative of this application, will be discussed below. [12] With respect to Devnor, the action was dismissed by Koenigsberg J. on an application on October 29, 2013 in this action. Chronology in Pre-Foreclosure Time Period [13] The plaintiff commenced this action in the Vancouver Registry under No. S‑134593. A number of paragraphs contained in the Notice of Civil Claim refer to the period prior to the commencement of the foreclosure proceeding. Initially there were insufficient funds in the estate bank account to pay even three monthly payments on the mortgage. Thereafter, the plaintiff made a loan application for the purpose of helping to pay mortgage payments and pay her living expenses until she found employment. The loan application demonstrated that the plaintiff had no current employment, gross income of $1.00 per annum, net worth of $34.57, and a credit record replete with failures to pay several credit accounts which had been closed and written off for failures to pay. [14] The will of Karl Oskar Hoessmann (the "Will"), a copy of which was presented to ACU by the plaintiff, was a hand written fill-in-the-blanks type of form, which provided incomplete instructions for the distribution of his estate and was not witnessed by two witnesses in the presence of one another. The Will was not made in compliance with the Wills Act, R.S.B.C. 1996, c. 489. The form of the Will caused some concern for the staff of ACU, and was considered a further risk factor by ACU in assessing the loan application. [15] After being told that the loan application was refused, the plaintiff requested that she be permitted to make interest-only payments on the mortgage. On the condition that the plaintiff bring the mortgage current, ACU agreed to allow a one year extension of the mortgage in February 2010, where the plaintiff would be obliged to make interest-only payments. The plaintiff thanked ACU for this arrangement. [16] The plaintiff managed to bring interest payments current after the February 2010 arrangement until July 2010, but the interest-only payment was not made in August, 2010. [17] A partial payment on account of the August 2010 payment was made in September 2010. No payment was then made in September nor October 2010. Payments totalling $500 were made in November and December of 2010, but the mortgage account continued to be in arrears. [18] In January of 2011, ACU wrote to the plaintiff advising that if the arrears on the mortgage were not brought up to date, ACU would consider further action. At that time, the arrears on the mortgage was in the amount of $707.49. In February 2011, the plaintiff made a payment of $176.40 which covered interest-only installments for the month of October and part of November 2010. [19] In March 2011, ACU received a letter from a lawyer acting for the plaintiff advising ACU that the plaintiff had applied for probate of her father's Will and that she was also applying for rectification of the Will, but no date was scheduled for the hearing of that application. This prevented anyone knowing when probate might be granted. In June of 2011, ACU received an email from the same lawyer advising that the plaintiff had signed a Notice of Intention to Act in Person. As a result, the lawyer would not be involved in the file thereafter. [20] Having received no further payments on the mortgage since February 2011, with arrears persisting from November 2010, on June 6, 2011, ACU advised the plaintiff that it would not extend the mortgage further and requested the plaintiff make arrangements to pay out the entire mortgage. [21] On July 12, 2011, ACU, through counsel, demanded payment in full of the mortgage, failing which foreclosure proceedings would begin. On August 9, 2011, a further demand letter was sent by ACU to the plaintiff. [22] Shortly after the second demand letter, the plaintiff met with an officer of ACU. It was agreed at that meeting that the plaintiff would commence paying $400 per month until she had arranged the administration of the Estate and the ownership of the Property. [23] The plaintiff thereafter made payments of $400 for each of August, September and October of 2011. No payment was made in November of 2011. In December of 2011, the plaintiff paid $200. The plaintiff made two further payments in January 2012 in the amount of $200 and $400. Thereafter, she made no further payments on the outstanding amount due under the mortgage. [24] Given that no further payments were made on the mortgage, ACU began foreclosure proceedings in March 2012. History of the Foreclosure Action [25] This case involves a mortgage originally granted in June 1998 to Karl Oskar Hoessmann, the father of the plaintiff in this action. The mortgage charged lands and premises located at 23861 - 36A Avenue in Langley, British Columbia, already defined above as the Property. [26] On September 13, 2009 Mr. Hoessmann died. By his Will, the plaintiff in this action was appointed the executor of Mr. Hoessmann's estate. The estate did not maintain payments on the mortgage. As a result the mortgage went into default and foreclosure proceedings were started on March 15, 2012. [27] On May 17, 2012, Master Keighley made an order that Ms. Hoessmann, as the executrix of the estate, had made default under the mortgage. He ordered that the amount required to redeem the mortgage during the redemption period was $55,792.08 plus interest and costs. The last date set for redemption was at the expiration of six months from the May 17, 2012 order. Standard foreclosure order terms were also contained in the May 17, 2012 order. This order was unsuccessfully appealed by the plaintiff. [28] On November 13, 2012 the Honourable Mr. Justice Truscott granted an order by consent that extended the redemption period on the foreclosure from November 17, 2012 to December 7, 2012. [29] On December 7, 2012, this Court granted an order that ACU have exclusive conduct of sale of the Property subject to the mortgage with any offer to be reviewed by the Court prior to sale. This order was unsuccessfully appealed by the plaintiff. [30] On March 7, 2013 before the Honourable Madam Justice Levine, sitting in chambers, the plaintiff made application for relief as follows: · a stay of execution of the order of the Honourable Mr. Justice Ball pronounced December 7, 2012, pending resolution of the appeal; · an order for an extension of time to file the motion book; · an order for an extension of time to file the application for leave to appeal the order of the Honourable Mr. Justice Ball pronounced December 7, 2012; · an order for extension of time to file the appeal record; · an order for indigent status in these proceedings; and · an order for costs of the application. Madam Justice Levine dismissed the plaintiff's applications and ACU was granted its costs against Ms. Hoessmann. [31] On March 27, 2013, the Honourable Mr. Justice Jenkins approved the sale of the Property to Devnor for the sum of $766,000 on the terms and conditions of the contract of purchase and sale dated March 19, 2013. The contract of purchase and sale was exhibited in court. The plaintiff, who resided in the home on the Property, was ordered by the Court to deliver up vacant possession of the Property at 9 am on May 28, 2013. Usual provisions in a court ordered sale were included in that order including the payment of taxes, water and sewer rates, interest, and penalties, as well as real estate commission and the payment of the mortgage to ACU. The balance of the proceeds of sale were ordered paid into Court. Litigation was then ongoing between the plaintiff and her brothers. [32] On April 19, 2013, in the Court of Appeal of British Columbia, the Honourable Mr. Justice Chiasson heard an application by the plaintiff to stay the order approving the sale. On May 3, 2013, the application of the plaintiff for a stay was dismissed. On May 23, 2013 a three judge division of the Court of Appeal dismissed an application by the plaintiff to vary the order made on May 3, 2013. On May 27, 2013 the Honourable Mr. Justice Low dismissed an application for a stay of the orders made on May 3, 2013 and May 23, 2013 pending an appeal to the Supreme Court of Canada. No appeal was ever heard by the Supreme Court of Canada. [33] The transaction of purchase and sale of the Property subject to the mortgage was completed on or about May 31, 2013. From the proceeds of the sale, the funds then due to ACU in the amount of $58,531.95 were paid to ACU. [34] The plaintiff failed or refused to vacate the Property by May 28, 2013, as ordered. As a result, upon application by ACU, Master Keighley granted an order for a writ of possession to allow recovery of possession of the Property from the plaintiff in accordance with the order. Further, $10,000 was ordered paid to the plaintiff from the funds being held in trust arising from the sale. [35] On or about June 14, 2013, $10,000 was paid on a without prejudice basis to the plaintiff from the estate, ostensibly to assist her with the cost of moving from the Property and arranging alternative accommodation. [36] In mid-June 2013 pursuant to the writ of possession, bailiffs attended the Property to recover possession of it from the plaintiff and deliver vacant possession to the purchaser - and defendant in this action - Devnor . The personal property of the plaintiff was placed in storage lockers in Langley, British Columbia. [37] On or about June 18, 2013, the plaintiff began this action against ACU and Devnor by filing a Notice of Civil Claim. The plaintiff claimed, among other things, an interest in the Property. As a result, a certificate of pending litigation was filed against the Property on June 21, 2013. [38] On June 19, 2013 the plaintiff filed a notice of appeal from a Master seeking an order staying the order for vacant possession. That appeal has been reset several times and never heard. [39] On July 23, 2013, the Honourable Mr. Justice Bowden dismissed the plaintiff's application for a stay of the order directing vacant possession. He further dismissed the plaintiff's constructive trust claim for the Property, among other property-related claims made by the plaintiff that were also dismissed. [40] In July 2013, the bailiff provided keys to the storage lockers to the plaintiff to provide her access to all of the items in storage. [41] Any and all outstanding appeal proceedings have been closed by the Court of Appeal based on delay. [42] On October 29, 2013, the Honourable Madam Justice Koenigsberg dismissed the claim against Devnor in this action, and cancelled the certificate of pending litigation against the Property. Koenigsberg J. also ordered the plaintiff to pay special costs to the defendant, Devnor. [43] On February 14, 2014, Master Muir dismissed the plaintiff's application to adjourn the application by Devnor to assess its special costs, which were ultimately assessed at $15,929.56. [44] The plaintiff has taken no further steps in these proceedings. Wills Variation Act Proceedings [45] On September 27, 2013 the Honourable Mr. Justice McKinnon ordered that the plaintiff be removed as executor of Mr. Hoessmann's estate and appointed Solus, a corporate trustee, in her place and stead. [46] The current plaintiff became involved in litigation with her mother and two brothers over the Will distributing her father's estate. Her brothers sought to vary the Will. The Wills Variation Act, R.S.B.C. 1996, c. 490, while repealed and replaced by the Wills, Estates, and Succession Act, S.B.C. 2009, c. 13 [WESA], was still applicable under the transitional rules of WESA. The action was decided by Pearlman J. on August 31, 2015, with reasons indexed at 2015 BCSC 1551. The Court varied the Will to provide lump sum payments (not otherwise provided in the Will) as follows: $60,000 to the mother, the deceased's surviving spouse, and $50,000 to each of the brothers. [47] On September 29, 2015, Ms. Hoessmann filed an appeal claiming the Will was fair and should not have been varied. [48] On December 30, 2015, Bennett J.A. set the appeal for case management. On February 1, 2016, Bennett J.A. ordered that Ms. Hoessmann file transcripts, appeal books, and her factum by April 4, 2016. Those filing dates were not met; the deadline was extended to May 13, 2016 and later to July 11, 2016. The brothers applied to have the appeal dismissed. That hearing was adjourned on several occasions until October 25, 2016, when it was finally heard by MacKenzie J.A. [49] Ultimately, Ms. Hoessmann filed the transcripts and the appeal books but did not serve either of her brothers with a copy. She did not file, nor serve her factum as of the date of the hearing before Mackenzie J.A. [50] Ms. Hoessmann did not attend the Court of Appeal on October 25, 2016, but instead sent an email to the Court of Appeal Registry. As summarized by the Court, the email stated "she was unable to attend court for unsubstantiated personal health reasons" (B.H. v. J.H. (25 October 2016), Vancouver CA43129 (B.C.C.A. Chambers) at para. 16). After hearing the application, the Court concluded that the appeal was dismissed as abandoned, citing with approval Kemp v. Wittenberg, 2001 BCSC 273 at para. 9. [51] Ms. Hoessmann then applied for a review of the order of MacKenzie J.A., but failed to file a motion book within the time prescribed by the Court of Appeal Rules, B.C. Reg. 297/2001. Ms. Hoessmann applied for an extension of time to file a motion book. That application was refused by Fenlon J.A. on January 16, 2017. Costs were awarded against Ms. Hoessmann and assessed in the amounts of $6,320.77 and $2,814.39 by Registrar of the Court of Appeal. [52] On February 16, 2017, the brothers of Ms. Hoessmann brought an application in the Court of Appeal to have Ms. Hoessmann declared a vexatious litigant. The order sought was granted by Donald J.A. in Chambers. [53] While the Wills Variation Act action is not strictly relevant to the present proceeding, the course of conduct of Ms. Hoessmann leading to the order above is instructive. Costs Orders and Debts Against the Plaintiff [54] In the reasons of Kent J. (B.H. v. J.H. (16 December 2015), New Westminster S140919 (B.C.S.C. Chambers)), the Court directed that the plaintiff's interest in the estate of her late father would be charged with a number of costs orders and debts. These include: monies owed to the Coquitlam School District for court costs in this Court and the Court Appeal in the amount of $56,000; special court costs ordered by Master Muir in favour of Devnor and assessed on May 5, 2014 in the amount of $15,929.56; and fees for private legal counsel retained by the plaintiff in the approximate amount of $95,000. The latter amount demonstrates that the plaintiff received significant legal services. [55] The costs awarded to the mother of the plaintiff, payable by the plaintiff, were assessed at $10,000 by consent on July 21, 2016. [56] Further costs orders were made against Ms. Hoessman as follows: Date Party Entitled to Costs Action No. Amount of Assessed Costs April 20, 2017 BKH and NRH CA041321 $2,814.39 April 20, 2017 D.H, by her Litigation Guardian, the Public Guardian and Trustee S140919 $4,435.20 April 20, 2017 As above CA43129 $2,628.09 April 20, 2017 As above CA43129 $4,583.83 April 20,2017 BKH and NRH CA43129 $6,320.77 August 17, 2017 per the order of Pearlman J. BKH and NRH S140919 $18,436.53 Costs awarded to Burns & Fitzpatrick $2,579.25 Funds ordered to be held back from Ms. Hoessmann's share of estate for ACU $25,000.00 Total $66,798.06 [57] At para. 99 of the Reasons of Pearlman, J., cited above, the financial condition of Ms. Hoessmann was described as follows: [99] As a result of the foreclosure and the choices she made in depleting the advances she received from the estate, JH is now destitute and lives in a women's shelter. Among the three children, hers is the greatest need. [58] The costs and claimed fees in the above table and paras. 54 and 55 above refer to proceedings that follow Pearlman J's reasons in time. When the costs, claimed fees, and items from para. 54 an 55 above are added together, the total is $243,727.62. The Court has attempted to make an encyclopedic listing of all costs orders but this listing is by no means complete. [59] The figure $243,727.62, when considered along side the contents of para. 99 from the reasons of Pearlman J. noted above, simply reflect the remarkable futility of the litigious conduct of Ms. Hoessmann. Notice of Civil Claim filed by the Plaintiff [60] As noted above, on June 18, 2013, Ms. Hoessmann filed this action with the style of cause used above, in which reference is made to the executor of the Will of the estate of the late Mr. Hoessmann. The opening claim was that the defendant ACU caused the loss of the estate through foreclosure. There is no evidence that the foreclosure caused any loss to the estate. The Property was sold in an open real estate market exposed to the public, and the sale was approved by a Court order. [61] There follows in the Notice of Civil Claim, 94 paragraphs of text which contain a combination of described historical events surrounding the foreclosure of the Property and the estate. Every aspect of the foreclosure proceedings was the subject of one or more court orders, applications for stays of proceedings, and appeals brought by the plaintiff which were universally unsuccessful. [62] The plaintiff alleges that ACU failed to "fully apprise the plaintiff of her rights under the mortgage." If, by this allegation, the plaintiff intended to suggest that ACU is required to provide legal advice to the plaintiff in her capacity as the executrix of the estate or personally, it must be noted that she was served with the petition which commenced the foreclosure proceedings and that she had the advice of personal legal counsel. This included advice of the following legal counsel: Lee Sawatsky, who was retained on or about March 16, 2011 and whose retainer ended on or about June 2, 2011; Scott A. Turner, appointed to act for the plaintiff on or about September 17, 2013; and Allan MacDonald, counsel to the plaintiff for a period of approximately nine months beginning on approximately February 11, 2016 and ending in shortly before the scheduled hearing date for this application of October 27, 2016. [63] Specifically, paragraphs 70-86, 88-90, and 92-94 of the Notice of Civil Claim refer to a variety of matters which were or ought to have been advanced by the plaintiff during the foreclosure action. It is now too late for the plaintiff to raise these matters for litigation which has already been adjudicated. [64] Paragraph 87 concerns a donation made to a political party. The contents of that paragraph are completely irrelevant to any of the claims alleged in this action. This pleading demonstrates the complete lack of any reasonable cause of action being advanced by this plaintiff. [65] Paragraph 92 is simply argument and not a statement of fact which is material to any cause of action. Representation of the Estate [66] As noted above, the style of cause states the action is brought on by Ms. Hoessmann as the "Executor of the Estate of Karl Oskar Hoessmann". While that may have been an appropriate title when the Notice of Civil Claim was filed in June of 2013, it was not accurate on September 27, 2013, when McKinnon J. made an order removing Ms. Hoessmann as executrix of the estate and replacing her with Solus. [67] According to s. 141(2) of the WESA, "[i]f a grant of probate or administration is revoked, the authority to act passes as if the person had never been appointed executor." Further, s. 136 of the WESA states that "[a] representation grant, whether or not power is reserved to another person to apply for a subsequent representation grant, gives to the personal representative exclusive authority to administer the estate or that part of the estate to which the representation grant applies in accordance with its terms." This section is dispositive of the question of Ms. Hoessmann's continuing capacity to act on behalf of the estate. Shortly put, she has no such capacity. [68] Furthermore, according to s. 160(2) of WESA, "[i]f a person is discharged or removed as the personal representative of a deceased person, the estate of the deceased person ceases, without any further declaration or order, to be vested in that person." [69] On the appointment of a substitute personal representative, the new personal representative has the same authority that the former personal representative had in respect of the estate, and must perform the same duties and is subject to the same obligations as were imposed by law on the former personal representative: WESA s. 159(3). It flows, therefore, that Solus as executor would have the sole legal authority to continue any claims on behalf of the estate. [70] Further support for this conclusion is derived from the Supreme Court Civil Rules, and in particular Rule 6-2. Subsection (3) states "[i]f, by assignment, conveyance or death, an estate, interest or title devolves or is transferred, a proceeding relating to that estate, interest or title may be continued by or against the person on whom that estate, interest or title has devolved or to whom that estate, interest or title has been transferred." The operative word "may" demonstrates that Solus would have the authority to continue the proceeding, but Solus is not required to continue the proceeding. [71] I appreciate there are fine distinctions to be made concerning proceedings taken by an estate prior to the replacement of an executrix. Replacement of an executrix would not prejudice actions or suits by or against and estate, that is, even if revoked, a grant is not void ab initio but only from the date of revocation: Hewson v. Shelley, [1914] 2 Ch. 13 (Eng. C.A.). (Also see Rule 6-2 of the Supreme Court Civil Rules.) [72] Further, s. 150(8) of the WESA states: "[a]ll proceedings under this section bind the estate of the deceased person, despite any previous or subsequent appointment of a personal representative." Orders made prior to the change of executors would be binding in favour of or against the estate, but at this juncture only Solus, without further court order, would be in a legal position to continue or discontinue legal proceedings on behalf of the estate. [73] Also, the general rule is that only the estate has standing to complain of wrongs done to it: see Engel v. Engel, 2005 BCSC 33. For any beneficiary to bring suit on behalf of the estate, leave of the court would be required as noted in sections 151(1), (3) and(4) of the WESA . However, as this Court has already decided that Ms. Hoessmann should be replaced as executrix, an application for her to again represent this estate has no hope of success. [74] As matters stand at the date of application now before this Court, Ms. Hoessmann has no legal right nor legal authority to represent the estate or advance any claim for damages for the estate. As a result, any portion of the Notice of Civil Claim which purports to advance a claim for damages or other losses of the estate is hereby dismissed. Ms. Hoessmann can only advance a claim in this action in her personal capacity, and no such claim is readily identifiable in the Notice of Civil Claim. The Application by Aldergrove Credit Union [75] ACU filed an amended notice of application on July 8, 2015, which was scheduled for hearing on October 12, 2017. Then, by consent, the date of hearing was moved to January 19, 2018. [76] ACU seeks the orders set out in paras. 5 to 7 inclusive herein. The applications are brought pursuant to Supreme Court Civil Rules 9-5 and 9-7. Rule 9‑5 deals with the legal principal of res judicata, which is that a matter once decided shall not be litigated again in subsequent or repetitive litigation. Such a claim is "unnecessary, scandalous, frivolous or vexatious" (Rule 9-5(b)) or otherwise an "abuse of the process of the court." [77] A party to litigation is required to bring all related claims forward at the same time in one proceeding; litigation is not permitted to be conducted in slices. The principal of res judicata applies not only to issues placed directly before the court by the parties, but issues which are related and could have been brought at that time. [78] Where an issue is decided or a cause of action is adjudicated by a court, the principal of res judicata would stop any attempt to re-litigate such issue or cause of action. Analysis Respecting the Pre-Foreclosure Activity [79] The Notice of Civil Claim contains a number of statements concerning events prior to the foreclosure action being commenced. Excluding claims which could only properly be brought by the estate, plans that the plaintiff may have had to reside in the Property in the future cannot form the basis of a claim by the plaintiff against ACU because there is no evidence that ACU had no knowledge or information about such plans. The allegation that the plaintiff planned to pay the mortgage is of no moment as the payments were not made and the mortgage was found to be in default. The sale of the home in a court ordered sale, likewise cannot be the foundation of a suit by the plaintiff as her "interest in the property" was always subject to the mortgage, both before and after the passing of the deceased. [80] Upon review of all of the pre-foreclosure activity, this Court finds that ACU was a mortgagee faced with a mortgage which was not being paid on a regular basis. The executrix appointed by the Will had limited personal resources and was a poor credit risk. ACU made a series of arrangements, including agreeing to accept interest-only payments for one year, to accommodate the plaintiff. The plaintiff was unable to obtain probate of the estate within a reasonable period of time, even though she had the assistance of legal counsel for a number of months. While the plaintiff submitted she was not completely familiar with the accounting of the mortgage, apart from a small number of payments made from her father's bank account, she made all of the other erratic payments; she knew exactly when payments were made and the amount of each payment. This Court also finds that ACU was faced with a situation where the only possible means of recovery of the balance of the mortgage, regardless of the equity in the Property, was to bring foreclosure proceedings. I find that no act of ACU prior to the commencement of the foreclosure proceedings would give rise to any cause of action in favour of the plaintiff in her personal capacity. [81] The plaintiff now has no capacity to advance any claim on behalf of the estate. I have chosen to treat the Notice of Civil Claim as a personal claim on behalf of the plaintiff because of that lack of capacity to represent the estate. Any claim available to the estate from the period before the foreclosure proceeding was either litigated or ought to have been litigated in the tortured course of that proceeding. Any such claim is now estopped because of the principal of res judicata. Respecting the Present Action in Light of the Foreclosure Action [82] The chronology of the foreclosure proceeding is noted in detail above and summarized below. [83] The present action involves the foreclosure of a mortgage on the Property. The Court found that the mortgage was in default, declared the amount owing to the mortgagee, and fixed a redemption period. An extension of the redemption period was also provided by order of the Court. When the mortgage had not been repaid at the end of the extended redemption period, the mortgagee obtained an order to allow it exclusive authority to sell the Property for the purpose of recovering the balance due on the mortgage at the end of the redemption period. Thereafter, a purchaser presented an offer for purchase of the Property. The offer was approved by the Court. An order was made for the plaintiff to vacate the Property. When she failed to vacate the Property, the Court issued a writ of possession and a bailiff removed the personal property of the estate and the plaintiff from the Property. The bailiff placed the personal property into storage. The keys to provide access to the storage facility were provided by the bailiff to the plaintiff. [84] All of the issues in the foregoing paragraph have been thoroughly litigated with a number the subject of unsuccessful stay applications, appeals, and review applications - all brought by the plaintiff. Several appeals were not prosecuted and have been dismissed as abandoned or otherwise for delay. [85] On the facts at bar, Ms. Hoessmann's only entitlement is as a person entitled to a share in the residue of the estate. She should have followed the procedures to seek leave to continue the elements of the action on behalf of the estate. Otherwise, it is up to Solus as the new personal representative of the estate to continue those portions of the action. Overall, therefore, I am of the opinion that she would have to seek leave to continue the proceedings on behalf of the estate if the trust company refuses to do so. There is no basis in the present application which could support an application for leave to be granted to the plaintiff to continue to advance this action on behalf of the estate. [86] An order nisi of foreclosure is founded on the Court being satisfied that a mortgage is valid and legally enforceable. The order also specifies the amount owing pursuant to the mortgage and that the mortgage is in default. Those findings have, in this case, been made in the order nisi and appeals therefrom have been unsuccessful. As a result, a mortgagor has no ability to challenge the validity of the mortgage in a separate action such as this; the principle of res judicata applies: Ba‑Oose Inc. v. HSBC Bank Canada, 2011 BCCA 511 at paras. 21-22. See also: Hoque v. Montreal Trust Co. of Canada (1997), 162 N.S.R. (2d) 321 (C.A.); Reliable Mortgages Investment Corp. v. Chan, 2014 BCCA 14 at paras. 35-36; and 420093 B.C. Ltd. v. Bank of Montreal, 1995 ABCA 328 at paras. 46-47. [87] The plaintiff has mounted allegations of negligence, gross negligence, breach of a duty of care, breach of contract, and fraudulent or negligent misrepresentation. As a first finding that must be made in relation to these allegations, there is a complete lack of any particulars in the Notice of Civil Claim in relation to any of the listed causes of action which would permit the plaintiff any potential for success in this action. Second, the entirety of this action is hereby dismissed because of res judicata or collateral attack, neither permitted by the law. [88] In Ba-Oose Inc., Groberman J.A. stated the following at paras. 24-26: [24] The only issue raised by the plaintiffs in their claim that does not go directly to the propriety of the order nisi is their claim that they were induced to reject an offer to sell the property in November 2007 by the bank's representations that it was prepared to renew the mortgage. In my view, the court, in issuing an order nisi of foreclosure, did not implicitly decide that issue against the plaintiffs. Therefore, the doctrine of issue estoppel does not prevent the plaintiffs from raising that matter in a separate action. [25] Issue estoppel, however, is only one of two branches of res judicata. The other branch is cause of action estoppel (see Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248 at 254 and Cliffs over Maple Bay Investments Ltd. (Re), 2011 BCCA 180 at para. 27). In Hoque v. Montreal Trust Co. of Canada (1997), 162 N.S.R. (2d) 321 (C.A.), Cromwell J.A. (as he then was) said this about the two branches of res judicata: [21] Res judicata is mainly concerned with two principles. First, there is a principle that "... prevents the contradiction of that which was determined in the previous litigation, by prohibiting the relitigation of issues already actually addressed.": see Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1991), at p. 997. The second principle is that parties must bring forward all of the claims and defences with respect to the cause of action at issue in the first proceeding and that, if they fail to do so, they will be barred from asserting them in a subsequent action. This "...prevents fragmentation of litigation by prohibiting the litigation of matters that were never actually addressed in the previous litigation, but which properly belonged to it.": ibid at 998. Cause of action estoppel is usually concerned with the application of this second principle because its operation bars all of the issues properly belonging to the earlier litigation. [26] It was not necessary for the court, in issuing an order nisi of foreclosure, to examine the question of whether a misrepresentation by the bank as to its readiness to renew the mortgage induced the plaintiffs to forego the sale of the property. Nonetheless, it would have been sensible for the matter to have been raised in the foreclosure proceeding, as it was closely tied to the issues that were before the court in that proceeding, and could have affected the judgment. It is strongly arguable, therefore, that cause of action estoppel would preclude the raising of that issue in a new action, even though it is not a matter covered by issue estoppel (see, for example, 420093 BC Ltd. v. Bank of Montreal (1995), 128 D.L.R. (4th) 488, particularly at para. 42). [89] On the facts at bar, the allegations in this proceeding go to the root of the mortgage claim. More specifically, the allegations of negligence, gross negligence, breach of a duty of care, breach of contract, and fraudulent or negligent misrepresentation are all derived from the mortgage on the Property, and the plaintiff's related interactions with ACU. As such, they should have been argued in the foreclosure proceedings which resulted in the order nisi, a final judgment. [90] Akin to what was seen in 420093 B.C. Ltd. (at para. 42), the subsequent claims in this proceeding could have been raised in the foreclosure action as matters of equitable set-off. Cause of action estoppel therefore bars the claims in this proceeding, which are dismissed as disclosing no reasonable claim and as an abuse of process pursuant to Rule 9-5. [91] In addition, the defendant advanced an application pursuant to Rule 9-7 of the Supreme Court Civil Rules. It was noted that the application has been before the courts for more than two and a half years since the first adjournment application by the plaintiff. The plaintiff has not advanced any evidence in conflict or opposition to the material facts in this case presented by ACU, particularly those surrounding the failure to pay the mortgage. The affidavits which have been filed by the plaintiff, apart from numerous paragraphs that are not admissible as hearsay, are now substantially out of date as the Property has been sold and the proceeds of sale - at least in part - distributed to the beneficiaries under the Will including the plaintiff and creditors of the plaintiff. This action would therefore be dismissed on the merits at any rate pursuant to Rule 9-7. The plaintiff lacks standing to bring claims on behalf of the estate, and any personal claims fail due to lack of any opposition to the material facts that would only support the defendant. [92] Pursuant to Rule 9-7(15) this court grants judgment for the defendant in this action and dismisses the whole of this action as the plaintiff has failed to prove any claim against ACU. Section 18 of the Supreme Court Act - Vexatious Litigant [93] This action is a profound example of vexatious litigation. The case involved foreclosure of a mortgage held by a financial institution; the mortgage with a value under $60,000. There have been more than 23 Masters, Justices of the Supreme Court and Court of Appeal, a number of those on more than one occasion, who have heard the large number of applications, applications for review, and appeals brought by the plaintiff. I have not included in this count the many occasions when the plaintiff has simply sought and obtained an adjournment, or the proceedings under the Wills Variation Act or in relation to obtaining an order for probate of the estate. The court costs awarded against the plaintiff by this Court and the Court of Appeal exceed the amount owing on the mortgage by several times over. [94] The cost to the public for the court system being tied up with this proceeding has also been dramatically high, and for little apparent positive purpose. [95] This case bears some significant similarities to Royal Bank of Canada v. Davis, 2016 BCSC 2074 [Davis], where a plaintiff advanced repeated unsuccessful claims, similar to those in the case at bar, without success. Griffin J. (as she then was), noted at para. 7 a helpful summary of the law under s. 18 of the Supreme Court Act, R.S.B.C. 1996, c. 443, which I have reviewed and considered in making a finding below. Also, at para. 11 of the same reasons, it is noted that the jurisdiction to declare a party "a vexatious litigant has to be exercised with great caution: Household Trust Co. v. Golden Horse Farms Inc. (1992), 65 B.C.L.R. (2d) 355 (C.A.) " [96] Similarly to Davis, in the present case, upon a review of the evidence and submissions before the Court, I am persuaded that the plaintiff has taken habitual and persistent steps in the foreclosure proceeding which she repeatedly lost. Quoting from para. 12 of Davis "[s]he appears to have a lack of self-control in accepting losses, and so finds new ways to repeat her allegations in new proceedings." [97] A review of the history of this action and the previous foreclosure litigation taken together with the submissions of ACU support a court order declaring Janet Jasmine Hoessmann, a vexatious litigant in relation to her claims against ACU. [98] Following a hearing before Mr. Justice Donald in chambers on February 16. 2017, the Court of Appeal found the plaintiff was a vexatious litigant in the context of the Wills Variation Act action. An order as such was entered on May 3, 2017. [99] Therefore, I make the following orders (a) a declaration that Janet Jasmine Hoessmann is a vexatious litigant; and (b) an order that Janet Jasmine Hoessmann be prohibited from initiating any legal proceedings, including but not limited to interlocutory applications, against the Aldergrove Credit Union or any of its officers, agents, or employees without leave of the Court, subject to an appeal of this Order and the Order of the Court of Appeal pronounced February 16, 2017 referred to in para. 52 hereof. Costs [100] ACU has applied for special costs of these proceedings. As this action has been decided primarily under Rule 9-5 where the claims are res judicata, it must be noted that Rule specifically provides for special costs to be awarded against a party bringing claims that have no merit and abuse the Court's process; such proceedings constitute conduct worthy of rebuke. See also: Royal Bank of Canada v. B.M.P. Global Distribution Inc., 2011 BCSC 1650 at para. 27-37; and Gonzalez v. Gonzalez, 2016 BCCA 376 at para. 38. [101] Outside the ambit of Rule 9-5, in Mayer v. Osborne Contracting Ltd., 2011 BCSC 914, Walker J. at para. 11 detailed circumstances in which special costs may be ordered as follows: [11] Special costs may be ordered in the following circumstances: (a) where a party pursues a meritless claim and is reckless with regard to the truth; (b) where a party makes improper allegations of fraud, conspiracy, fraudulent misrepresentation, or breach of fiduciary duty; (c) where a party has displayed "reckless indifference" by not recognizing early on that its claim was manifestly deficient; (d) where a party made the resolution of an issue far more difficult than it should have been; (e) where a party who is in a financially superior position to the other brings proceedings, not with the reasonable expectation of a favourable outcome, but in the absence of merit in order to impose a financial burden on the opposing party; (f) where a party presents a case so weak that it is bound to fail, and continues to pursue its meritless claim after it is drawn to its attention that the claim is without merit; (g) where a party brings a proceeding for an improper motive; (h) where a party maintains unfounded allegations of fraud or dishonesty; and (i) where a party pursues claims frivolously or without foundation. [Citations omitted.] [102] The term "reprehensible conduct" encompasses a wide variety of conduct that may include both scandalous and outrageous conduct as well as more minor forms of misconduct deserving rebuke: Leung v. Leung (1993), 77 B.C.L.R. (2d) 314. [103] It has been considered challenging to "pinpoint the outer limits of what is reprehensible", as noted in Westsea Construction Ltd. v. 0759553 B.C. Ltd., 2013 BCSC 1352 at para. 38. Nevertheless, the misconduct must have an exceptional element of "something more" (Westsea at para. 39). Reprehensible conduct has been found in meritless claims advanced for an improper motive and in a variety of other circumstances noted in Westsea at paras. 43-50. Careless conduct or conduct amounting to reckless indifference in some circumstances has met the threshold of "reprehensible conduct": Webber v. Dulai Roofing Ltd., 2006 BCCA 501 at para. 14. [104] On the other side of the coin, as noted in Westsea at para. 51, "[a]n ill-informed position will not always attract special costs": also see Webber at para. 18. [105] At para. 73 in Westsea, Madam Justice Gropper helpfully set out principles regarding special costs which she reports based on her review of relevant authorities. [73] I have undertaken a thorough review of the cases involving special costs. Having examined the authorities provided by both sides, it is apparent to me that the courts have been somewhat inconsistent in their determination of what amounts to reprehensible conduct and that those authorities must be reconciled. Based upon my review of the authorities, I have derived the following principles for awarding special costs: a) the court must exercise restraint in awarding specials costs; b) the party seeking special costs must demonstrate exceptional circumstances to justify a special costs order; c) simply because the legal concept of "reprehensibility" captures different kinds of misconduct does not mean that all forms of misconduct are encompassed by this term; d) reprehensibility will likely be found in circumstances where there is evidence of improper motive, abuse of the court's process, misleading the court and persistent breaches of the rules of professional conduct and the rules of court that prejudice the applicant; e) special costs can be ordered against parties and non-parties alike; and f) the successful litigant is entitled to costs in accordance with the general rule that costs follow the event. Special costs are not awarded to a successful party as a "bonus" or further compensation for that success. [106] The plaintiff has persisted in bringing to this Court positions which have no hope of success, simply refusing to take the "no" in a negative court order as an answer. She has launched repeated attempts at adjournment, review, and appeal, while making unfounded claims based on fraud, misrepresentation, and bad faith dealing in the business of ACU - where trust in the institution is a professional credential jealously guarded. [107] While appreciating the need to impose special costs with caution, and mindful that special costs are not intended as an additional award for a successful party, the reprehensible and remarkably wasteful conduct of the plaintiff in bringing this case is worthy of rebuke in the form of special costs. As a result there will be an order against the plaintiff for special costs payable to ACU forthwith after assessment for the entirety of this action, provided there shall be no duplication of existing orders for costs previously made herein. "Ball J."