Jean-Richard-Dit-Bressel v. Carr

2020 BCSC 946 Jean-Richard-Dit-Bressel v. Carr

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Jean-Richard-Dit-Bressel v. Carr , 2020 BCSC 946 Date: 20200624 Docket: S164341 Registry: Vancouver Between: Jacqueline Jean-Richard-dit-Bressel Plaintiff And Jeremy Gabriel Carr Executor of the Will of Rene Jules Jean-Richard also known as Rene Jules Jean Richard, Deceased, Jeremy Gabriel Carr, Myriam Redding, Elie Elkaim, Melisa Elkaim, Sasha Elkaim, Fiona Elkaim, Suzanne Wetzer, Tim Wetzer, Josanne Atley, Kate Morris, the Pallative Pavillion at the Saanich Peninsual Hospital, Cecile Ailloud, the Victoria Cancer Society and Michele Fontannaz Defendants Before: The Honourable Mr Justice Crerar Reasons for Judgment Counsel for the Plaintiff: Hugh S. McLellan Counsel for the Defendants Jeremy Gabriel Carr, Elie Elkaim, Melisa Elkaim, Sasha Elkaim, Fiona Elkaim, Josanne Atley: James A.S. Legh Place and Date of Written Submissions: Vancouver, B.C. June 23, 2020 Place and Date of Judgment: Vancouver, B.C. June 24, 2020 I. introduction [1] Certain defendants (Jeremy Gabriel Carr, Elie Elkaim, Melisa Elkaim, Sasha Elkaim, Fiona Elkaim, Josanne Atley[1]) apply under rule 6-1 for leave to amend their response to civil claim.[2] [2] In the underlying action the plaintiff seeks to vary the will of her deceased father, based on s.60 of the Wills, Estates and Succession Act, SBC 2009, c 13 ("WESA"). [3] The proposed amendment would bring a

constitutional challenge to the wills variation provisions of WESA. The proposed amendment is a solitary paragraph in Part 3 (Legal Basis) of the response. It raises no new factual allegations. [4] This constitutional challenge is based on the decision last year in Lawen Estate v Nova Scotia (Attorney General), 2019 NSSC 162. Lawen struck down certain sections of the equivalent legislation in Nova Scotia (the Testators' Family Maintenance Act, RSNS 1989, c 46). The Court held that allowing an adult child "dependant" to challenge a will even where that dependant was not truly dependent on the deceased's funds, infringes testamentary autonomy, and unjustifiably violates the right to liberty guaranteed by s. 7 of the Charter: paras 134-135. The Court accordingly read down the statute to exclude non-dependent adult children from bringing will variation claims.[3] [5] Lawen is under appeal. II. Background [6] The testator died on July 14, 2015. A grant of letters probate to the Estate was issued to Mr Carr on December 31, 2015. [7] The plaintiff started the claim on May 13, 2016. On August 5, 2016 the defendants-applicants filed their response. [8] The trial of this matter is scheduled for five days starting on October 26, 2020. [9] The trial has been adjourned once before, on August 9, 2018, on the application of the defendants. III. Position of the parties [10] The plaintiff does

not oppose the applicants' intention to raise the constitutional question, but expresses concern that the procedure for filing a constitutional challenge, which requires notice to and the potential involvement of the Attorneys General of British Columbia and Canada under the Constitutional Question Act, RSBC 1996, c 68, will endanger the October trial date. [11] The plaintiff requests that the Court, if it is to grant leave to amend, direct that a preliminary hearing be held no later than August 28, 2020. That hearing would determine two matters: the constitutional validity of the impugned WESA provisions, as well as the preliminary issue of whether the defendants have standing to bring that challenge (as the Nova Scotia Court determined in an earlier hearing in the Lawen Estate proceeding: indexed at 2018 NSSC 188. IV. DISCUSSION AND decision [12] The law governing amendments is well established and is not contested by the plaintiff. [13] Rule 6-1(1)(b)(i) confirms the Court's discretionary power to permit amendments to pleadings. [14] The discretion to permit amendments is to be liberally exercised so as to enable the real issues to be determined. Generally, amendments "are allowed unless prejudice can be demonstrated by the opposite party or the amendment will be useless": Langret Investments S.A. v McDonnell (1996) 21 BCLR (3d) 145 at 153 at para 34; Century Services Inc, v

LeRoy, 2015 BCCA 120 at para 10. [15] The Court should consider the following factors in determining whether to exercise its discretion to allow an amendment: a) the extent of the delay; b) the reasons for the delay; c) any explanation put forward to account for the delay; d) the degree of prejudice caused by the delay; and e) the extent of the connection, if any, between the existing claims and the proposed cause of action. (Amezcua v Taylor, 2010 BCCA 128 at para 36; Century Services Inc. v LeRoy, 2015 BCCA 120 at para 11) [16] The last factor is not applicable to this case, as the applicants are not proposing a new cause of action. In any case, the subject matter of the proposed constitutional challenge aligns directly with the subject matter of the existing pleadings. [17] With respect to factors (a), (b), and (c), Lawen was issued just over a year ago. These defendants could perhaps have brought forward the proposed amendments and this application a little earlier. That said, the fact that Lawen emanated from another province, coupled with necessary research and drafting, coupled with the disruption to life and law inflicted by the Covid epidemic, indicate that there has not been undue delay. [18] With respect to (d), usually the most important factor, the plaintiff does not vigorously assert actual prejudice, apart from the possibility that the trial will be adjourned.

There is no affidavit from the plaintiff setting out any specific or actual prejudice. [19] There is no apparent urgency to determine entitlement to the will of the deceased. The plaintiff does not assert poverty or any urgent need to gain access to funds of the Estate. The main prejudice cited in the plaintiff's submissions is the fact that some of the trial witnesses reside in Europe. Again, there is no affidavit asserting, for example, that those witnesses are in precarious health or that airline tickets have already been purchased at great expense. [20] To return again to Covid, no one knows whether those witnesses will even be able to attend trial in October, either due to health or cross-border travel restrictions. The October trial date is emperilled by the extraordinary current events, apart from the proposed constitutional challenge. [21] Viewed conversely, a determination of the issue of whether s. 60 of WESA is constitutional could determine this matter in its entirety. If the defendants are successful in their constitutional challenge, the trial will be unnecessary, or at least delayed as the constitutional issue is appealed. [22] In any case, both sides agree that a preliminary hearing on the standing and constitutional issues is desirable, rather than having those matters heard at a trial that may otherwise be superfluous. Further, both sides seem motivated to

make strong efforts towards an expeditious hearing of the constitutional question by the end of the summer. Whether they can succeed or not will largely depend upon the responses of the Attorneys General. Again, as with Covid, this is something that is largely out of the hands of the present parties. [23] In the circumstances, I will grant leave to the applicants to file the amendments to the response. The balance of justice favours allowing the amendment so that the Court can properly determine the real issues between the parties to this matter. [24] The applicants are to file the amendments, and to provide the requisite notice to the Attorneys General, forthwith. [25] I direct that the applicants make all reasonable efforts and try to have the constitutional and standing issues determined as soon as reasonably possible, in an attempt to preserve the October trial date. That said, it may well be the case that a swift hearing and preservation of the trial date is not possible, due to circumstances beyond the control of the parties. I will thus not make any specific direction with respect to the scheduling of that hearing, which direction could inconvenience the Registry or the Attorneys General. Costs will be in the cause. "Crerar J" [1] The deceased Mr Jean-Richard left nothing in his will to his two daughters, one of whom is the plaintiff. The defendants-applicants are

beneficiaries under the will: Mr Carr (the executor of the will); Ms Atley (the deceased's housekeeper); Elie Elkaim (the deceased's lawyer in Switzerland); and Ms Elkaim's three daughters. [2] The defendants bring this application under COVID-19: EXPANSION OF CIVIL AND FAMILY MATTERS ̶ APPLICATIONS BY WRITTEN SUBMISSION COVID-19 Notice #14 (April 27, 2020) [3] At para 15, Bodurtha J noted that the Charter was not argued in Tataryn v Tataryn Estate, [1994] 2 SCR 807, where the Supreme Court of Canada whether the then-British Columbia Wills Variation Act, RSBC 1979, c 435 extended to adult children who were not in financial need.