I.J. v. J.A.P. Estate

2023 BCSC 1516 I.J. v. J.A.P. Estate

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: I.J. v. J.A.P. Estate, 2023 BCSC 1516 Date: 20230829 Docket: S39414 Registry: Chilliwack Between: I.J. Plaintiff And The Estate of J.A.P., G.P., A.P., M.P., [Numbered Company] B.C. Ltd., G.P. as Litigation Representative for The Estate of J.A.P., Deceased and [Numbered Company] B.C. Ltd. Defendants And: I.J. Defendant by Counterclaim Corrected Judgment: The text of this judgment was corrected throughout for publication purposes on September 7, 2023 Before: The Honourable Justice Caldwell Reasons for Judgment In Chambers Counsel for the Plaintiff and Defendant by Counterclaim: M.A. Misner Counsel for the Defendants: W.R. Neufeld Place and Date of Hearing: Chilliwack, B.C. July 17, 2023 Place and Date of Judgment: Chilliwack, B.C. August 29, 2023 [1] The plaintiff, I.J., applies to amend the style of cause in this matter and to add a party. I.J. also seeks directions regarding examination for discovery, removal of Valley Law Group LLP ("VLG") as solicitors for the Estate of J.A.P. ("the Estate"), removal of G.P. as Administrator and Trustee of the Estate, and for directions regarding a replacement estate administrator and trustee. [2] J.A.P. ("J.P.") passed away on June 9, 2022. He did not have a will. At the time of his death, J.P. lived at a property in Abbotsford (the "Kinloch Property"). He was registered on title to the

Kinloch Property as a joint tenant with his former wife, M.P. J.P. was also the sole registered owner of a numbered B.C. corporation. [3] J.P. and M.P. had two children during their marriage: G.P. and A.P. [4] G.P. is the Administrator and Trustee of the Estate, and is also now the director of the numbered corporation. [5] In early 2023, the Kinloch Property was sold after consent orders allowing G.P., as the Estate Administrator, to list and sell the property. [6] Acting as Administrator of the Estate, G.P. applies to vary the order of Master Keighley, made December 12, 2022, to allow him to pay M.P. a sum of $96,551.53 out of the monies held in the Estate. The money held by the Estate currently totals approximately $1,000,000 or slightly more. [7] The other facts are somewhat unusual. [8] Prior to J.P.'s death, I.J. and J.P. were in a relationship, the precise nature of which is disputed. A decision was made to have a child. I.J. and J.P. pursued in vitro fertilization ("IVF"). Various paperwork was completed regarding that process. There are disputes regarding that paperwork. The first IVF attempt was unsuccessful. [9] J.P. then died suddenly at age 55, and without a will. [10] More paperwork followed - again, there are disputes about that paperwork, such as the later paperwork including a signature from J.P. that was dated after his death. A second IVF attempt following

J.P.'s death was successful, and I.J. had a child, "E.". [11] The plaintiff seeks to add E. as a party and potential beneficiary of the Estate. The defendants do not really oppose the addition of E. as a party, but do and will argue that E. is not a beneficiary. [12] Paragraphs 1 and 2 of the plaintiff's application seeking to amend the style of cause and add E. as a party are granted as sought. Paragraph 3 regarding E.'s status as a potential beneficiary seeks a declaration that is premature and is therefore dismissed. Paragraph 4 seeking a declaration that E. is entitled to service and disclosure in this matter is granted, but with the excision of the phrase "as a potential beneficiary". [13] There is no opposition to the specified examination for discovery of G.P. in his three noted capacities - as Administrator of the Estate; as Director of the corporation; and personally, as a beneficiary. The only issue is whether the time limits provided for in the Supreme Court Civil Rules [Rules] should be extended in anticipation of lengthy examination. [14] I am of the view that such peremptory extension is not appropriate. Rule 7-2(2) provides for seven hours of examination for discovery. That is a considerable period of time, particularly if the examiner is properly prepared and focussed. Just because more time could be taken does not mean that it should. Proportionality dictates

that discovery, both oral and, to perhaps a lesser extent, documentary, be focussed and surgical rather than prolonged, tedious and scatter-gun. [15] Paragraph 6 of the application is therefore dismissed. The plaintiff has liberty to apply for further examination for discovery time should the seven hours provided by the Rules prove, on proper evidence, to be inadequate. [16] Regarding the issue of conflict and the application to remove VLG as solicitors for the Estate, I note the following: 1. M.P. and the deceased had separated in or about 2011, and there was and remains outstanding litigation between them regarding, among other things, their ownership interests in some or all of the real properties at issue in this action; 2. I was not advised that VLG acted or acts for M.P. in that matrimonial litigation and I proceed on the assumption that they did not and do not, and that she is otherwise represented in that matter; 3. it appears that even prior to the addition of E., the interests of the existing beneficiaries (G.P. and A.P.) were best served by minimizing any interest to which M.P. could establish a claim, however they appear to be presenting a coordinated and cooperative position as amongst themselves; 4. with the addition of E., the "alliance" may be shifted, as any interest moved to M.P., either as her separate property or as money owing to her from the Estate, has

the potential to favour G.P. and A.P. over E., if E. is ultimately found to be a beneficiary of J.P.; 5. E. will have separate representation and a litigation guardian to protect her interests; 6. VLG has advised me, through counsel acting in this matter and as an officer of the court, that G.P., A.P., and M.P. have received legal advice and have signed consent authorizations for VLG to act for them in their capacities as beneficiaries and possible Estate creditors respectively; 7. the order of Master Keighley (dated December 2022) appointed G.P. as both Litigation Representative for and Administrator of the Estate, with the limitation that he not take steps to deal with Estate assets unless by consent of the plaintiff or court order; and 8. having not received consent of the plaintiff, G.P., as Estate Administrator, sought court approval of a proposed payment to M.P. [17] On the materials before me, there does not appear to be a conflict of counsel as between the plaintiff and the defendants. It appears that there may be, at the very least, the potential for a conflict in counsel acting for all of the defendants, save for E., who has now been added and whose interests will be protected through her litigation guardian and chosen counsel for her. [18] The defendants, regarding whose interests there may be a potential conflict, have received legal advice and have consented to

have VLG act for all of them in a spirit of apparent advised cooperation. This appears to be in keeping with the professional conduct standards for lawyers noted in MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, 1990 CanLII 32 (S.C.C.) at para. 17: [A] lawyer must not advise or represent both sides of a dispute and, save after adequate disclosure to and with the consent of the client or prospective client concerned, he should not act or continue to act in a matter when there is or there is likely to be a conflicting interest. A conflicting interest is one which would be likely to affect adversely the judgment of the lawyer on behalf of or his loyalty to a client or prospective client or which the lawyer might be prompted to prefer to the interests of a client or prospective client. [19] Here, such consent has been given as amongst the three named defendants - G.P., A.P., and M.P. The role of M.P. is limited to that of creditor (at least outside of the matrimonial litigation which may or may not be proceeding, but she is not represented by VLG in that litigation). She does not, in this litigation, claim status as a spouse or resultant beneficiary. The two known beneficiaries are content to have their mother/Estate creditor represented by their own counsel. If that situation changes as amongst the defendants, it is likely that VLG would be in an actual conflict and would, in

all likelihood, be unable to represent any party in this litigation, or possibly in the Estate matter itself. [20] Does this cooperation amongst the defendants affect VLG and its ability to continue as solicitors of record for the Estate? That is the central issue in the only actual "removal" order being sought by the plaintiff in the present application. [21] VLG acts as counsel for the Estate and is instructed via the Administrator, G.P. The plaintiff says that there is a conflict because G.P. is both a beneficiary and the Administrator. In those capacities, he will undoubtedly receive legal advice, as he has done to date, from VLG. [22] VLG, on behalf of G.P. and A.P., filed a response to the notice of civil claim, opposing all relief sought. That is to be expected as that position protects their interests as beneficiaries and seeks to maximize their interest in the Estate. [23] VLG, on behalf of M.P., filed a response confirming that she was not claiming an interest in the Estate assets but was only claiming to recover her undivided one-half interest of the proceeds of the sale of the Kinloch Property. [24] Finally, VLG, on behalf of the Estate, and presumably on instructions from G.P., filed a response to the notice of civil claim. [25] The response was filed nine days after the consent order of Master Keighley, appointing G.P. as litigation representative for the Estate

and as Administrator. [26] Normally, the Estate by its Administrator would take no position in the litigation. It would await the outcome of the dispute amongst the beneficiaries and other parties and then administer the Estate according to that outcome, be it by an agreement or an order of the court. [27] In the present case however, the Estate response paralleled that of the named beneficiaries, G.P. and A.P. It served to establish that the Estate was taking an openly adversarial position to support the two known beneficiaries as against one and possibly two additional alleged beneficiaries. [28] There has never been any action taken to amend that response or the position taken in it. The application which was brought by the Administrator continues the adversarial or "favoured status" approach. It seeks to favour a non-arms' length creditor, who is represented by the same counsel as the Estate and the Administrator, over the Estate itself. By doing so, the result may also favour certain beneficiaries (also represented by the same counsel) over others. [29] I am satisfied that this continuing adversarial situation raises a clear conflict in the administration of the Estate and the ability of counsel to represent both the Estate/Administrator and the beneficiaries as described. I am also satisfied that G.P. is unable or unwilling to embrace the proper, neutral role required of

an estate administrator. [30] I grant the orders sought in paras. 7-10 of the application removing VLG as solicitors of record for the Estate, removing G.P. as Administrator and as Trustee of the Estate, and directing the parties to agree to a suitable and neutral replacement Administrator and replacement Trustee within 15 days, or to apply to seek directions on those replacements. [31] I dismiss the application of the Estate regarding payment of the monies to M.P. Such payment is premature and may operate to the prejudice of the Estate and the beneficiaries. [32] I decline to order special costs. The plaintiff is entitled to one set of costs at Scale B, paid as sought from the Estate, but I decline to order them payable forthwith. "Caldwell J."