Ravnyshyn v. Drys

2007 BCCA 400 Ravnyshyn v. Drys

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Ravnyshyn v. Drys, 2007 BCCA 400 Date: 20070726 Docket: CA032952 Between: Paraskovia V. Ravnyshyn, Maria M. Dzubak, Olen M. Goubchouk, Ivan G. Demediuk, Maria G. Nestorouk, Ganna G. Dymydiuk, Vasyl G. Dymydiuk, Yuri G. Dymydiuk, Vasylyna V. Kermoshchouk, Vasiliy V. Dymydiuk, Oleksi V. Dymydiuk, Petro V. Dymydiuk, Mykola V. Dymydiuk, Olena V. Dymydiuk, Maria S. Aksuk, Ganna S. Tymchouk, Yuri S. Shekeryak, Mychaylo S. Shekeriak, Mykola S. Shekeriak, Vasylyna S. Storoshchouk, Dmytro S. Shekeryak, Nikolay N. Demediuk, Yuri F. Demediuk, Ganna Yu Shkoundeuk, Vasylyna Yu Gavrylchouk, Yevdokia Yu Marfiyevych/Mouratshi, Mychaylo Yu Doutchak, Yekaterina Yu Slyvinskaya, Mariya Yu Labyuk and Paraskoviya Yu Gavrylchouk Appellants (Plaintiffs) And Igor Drys and Nataliia Drys Respondents (Defendants) Before: The Honourable Madam Justice Prowse The Honourable Mr. Justice Donald The Honourable Mr. Justice Chiasson D. Christie Counsel for the Appellants H. Wellman Counsel for the Respondents Place and Date of Hearing: Victoria, British Columbia June 7, 2007 Place and Date of Judgment: Vancouver, British Columbia July 26, 2007 Written Reasons of the Court Reasons for Judgment of the Court: [1] The appellants have two applications before the Court. The first is an application to vary the order of Madam Justice Saunders, made November 9, 2006,

dismissing their application to remove their appeal from the inactive list, and awarding costs of $500 to the respondents. At the hearing on June 7, 2007, we set aside the order of Madam Justice Saunders for reasons which follow. [2] The second application is to reinstate the appeal, which was dismissed as abandoned on November 10, 2006, pursuant to s. 25(5) of the Court of Appeal Act, R.S.B.C. 1996, c. 77. [3] These applications arise in the context of the appellants' ongoing efforts to pursue an appeal from the order of Mr. Justice Warren, made April 14, 2005, dismissing their action to "expunge" certain provisions of the will of the late Mr. George Demediuk, either on the basis that those provisions were obtained by undue influence on the part of the respondents, or that the respondents were responsible for Mr. Demediuk's "suspicious" death in Costa Rica, and should not be allowed to profit from their "felonious" actions. [4] In order to place these applications in context, the following chronology is relevant: 1. George Demediuk died in Costa Rica in February 1999 at the age of 79. In his will, he left the majority of his property to the respondents, Mr. and Mrs. Drys, who had befriended him four years earlier while he was living in the Gorge Road Hospital.

2. On 4 July 2001, Ms. Ravnyshyn commenced this action on behalf of herself and the other appellants, all of whom are relatives of Mr. Demediuk residing in Ukraine, and are residual beneficiaries under the will.

3. On 14 April 2005, Warren J. dismissed the appellants' action. He found that there had been no undue influence and that the evidence did not support the allegation that the respondents were involved in Mr. Demediuk's death. (See Ravnyshyn v. Drys, 2005 BCSC 561.) 4. On 10 May 2005, the appellants filed a notice of appeal.

5. The appeal record was due on 11 May 2005, and the factum and appeal book were due on 11 July 2005.

6. On 8 September 2005, the appellants filed a motion in this Court to extend the time to file the appeal books and transcripts of the proceedings. Their motion was granted on 24 October 2005 by Saunders J.A., and the time for filing the books was extended to 31 October 2005. In making that order, Madam Justice Saunders found that the appeal was "very low in merit" and that the appellants faced "an uphill struggle". She did not find that the appeal had sufficient merit to warrant a stay of Mr. Justice Warren's order.

7. On 31 October 2005, the appellants filed the appeal books and the appeal record. The next day they filed the transcripts.

8. On 15 May 2006, the Deputy Registrar of the Court of Appeal sent the parties a letter advising that pursuant to s. 25(1) of the Court of Appeal Act, the appeal had been placed on the inactive appeal list.

9. On 27 July 2006, counsel who had been acting for the appellants advised them of the implications of the appeal being placed on the inactive list, and also advised that he was not prepared to continue with the appeal until he received payment for work already done. In an affidavit sworn 23 November 2006, Ms. Ravnyshyn swears that this was when she first learned her appeal was no longer active.

10. Ms. Ravnyshyn filed a motion seeking an order that the appeal be taken off the inactive list. The motion was set to be heard on 9 November 2006 by Madam Justice Saunders.

11. Ms. Ravnyshyn swears that a few days prior to 9 November, she telephoned the Court of Appeal Registry to advise that she may be late, because she would be coming to Vancouver from Victoria by ferry that morning. In the file there is a hand-written note, apparently written by the clerk, that reads: CA32952 from Victoria arrival between 10 - 10:30 12. On 9 November, the case was called at 9:50 a.m. and Ms. Ravnyshyn was not present. The matter was stood down and then recalled at 10:15 a.m., at which time Saunders J.A. dismissed the appellants' application with costs to the respondents.

13. In her affidavit, Ms. Ravnyshyn swears that she arrived at courtroom #70 at 10:20 a.m. to find that it was locked. She had been delayed by traffic on her way from the ferry.

14. At 10:57, the matter was recalled. Saunders J.A. informed Ms. Ravnyshyn of what had happened and explained that the matter could no longer be heard that day because counsel for the respondents had left.

15. Ms. Ravnyshyn swears that the courtroom clerk informed her that the note made by another clerk had been understood to pertain to counsel for the respondents.

16. On 10 November 2006, the appeal was dismissed as abandoned.

17. On 16 January 2007, the appellants' application to vary the order of Madam Justice Saunders came before a panel of this Court, at which time Ms. Ravnyshyn was advised that, in order to deal with this matter once and for all, she also had to bring an application to reinstate her appeal. [5] It is apparent from this chronology that the appellants' application to reactivate the appeal was dismissed by Madam Justice Saunders without a hearing because of an administrative error. There is no doubt that Ms. Ravnyshyn intended to appear at the hearing and that she took steps to make the Court aware that she might be late. Madam Justice Saunders did not receive that message and dismissed the appellants' application on the basis that no one was there to pursue it. For the same reason, she awarded costs to the respondents. [6] In our view, it would be unjust to allow the order of Madam Justice Saunders to stand in these circumstances. We have no doubt that if she had received the message that Ms. Ravnyshyn may not arrive until 10 or 10:30 she would have stood down the application so that it could be heard on the merits. This is particularly so where counsel for the respondents was available and ready to proceed. For that reason, we set aside the order. [7] Setting aside the order of Madam Justice Saunders, however, does not address the difficulty arising from the fact that the day

after she made her order dismissing the appellants' application to reactivate the appeal, the appeal was dismissed as abandoned. It was that problem which led a panel of this Court to direct Ms. Ravnyshyn to file an application to reinstate the appeal. [8] We turn then to that application. [9] Reinstatement of an appeal that has been dismissed as abandoned is dealt with in ss. 25(5) and (6) of the Court of Appeal Act, which provide: 25(5) If an appeal or application for leave to appeal has remained on the inactive appeal list for 180 consecutive days, on the 181st day it stands dismissed as abandoned. (6) An appeal or application for leave to appeal that stands dismissed as abandoned under subsection (5) must not be reinstated unless a justice orders otherwise. [10] In determining whether an appeal should be reinstated, there is no rigid test to be applied. In each case the ultimate question is "whether granting the application would be in the interests of justice" (Hannigan v. Hannigan (2006), 226 B.C.A.C. 100). In that case, this Court reviewed the factors to be considered on an application to reinstate an appeal, including whether (at para. 12): (a) there has been inordinate delay; (b) the delay is excusable; (c) the respondent has suffered prejudice as a result of the delay; (d) there is merit to the appeal; and (e) the interests of justice are served by reinstatement. [11]

The Court made it clear that the interests of justice were not served by an inflexible standard, and adopted the following statement of Chief Justice McEachern in Rowan v. Dunwoody & Co. (c.o.b. "BDO Dunwoody") (1999), 131 B.C.A.C. 311 (in Chambers), at paras. 19-20: I am not satisfied that it is wise to attempt to establish a test in this or any one case that would apply fairly in all subsequent cases. It seems to me, however, that a timely intention to appeal is important. After that, the three-part test in Frew v. Roberts (1990), 44 C.P.C. (2d) 34 (B.C.C.A.) - inordinate delay, explanation for delay and prejudice] should be considered. But after considering those matters, I think it is necessary to go beyond the answers reached on that test, and decide whether, considering the merits of the case and all other relevant matters, it is in the interests of justice that the appeal be reinstated or left dismissed. The onus on all these matters, of course, rests upon the applicant. In considering the merits of the case, I decline to decide whether the appellant must show a substantial chance of significant success or any other particular degree or level of probability of success. The purpose of s. 25 is to prevent dormant appeals from sleeping too long, not to foreclose reasonable access to the appeal process. Appeals without merit should certainly be weeded out, and appeals with

little or no chance of success should often be left undisturbed. There must be at least an arguable case, but whether any particular case is sufficiently deserving of being allowed to continue may depend in part upon other factors such as the cause of the delay or the nature, if any, of the prejudice likely to be caused by reinstating the appeal. [12] Counsel for the respondents submitted that there have been ongoing inordinate delays in this case for which no reasonable explanation has been provided; that there is no merit to the appeal; and that there is significant prejudice to the respondents arising from the delays because of the serious nature of the ongoing allegations against them, including allegations of undue influence and complicity in the death of Mr. Demediuk. Counsel also submitted that there is little likelihood of the respondents ever recovering their costs of the action, which have been assessed at $134,000, or the costs of this appeal. [13] In his submissions, counsel for Ms. Ravnyshyn focussed solely on the merit test for reinstatement. He relied on the decision of this Court in Ogilvie v. Ogilvie Estate (1998), 49 B.C.L.R. (3d) 277 (C.A.) for the proposition that where there is a "special relationship" between the testator and a beneficiary, a presumption of undue influence arises such that the burden of disproving undue influence shifts to the beneficiary.

He submitted that the trial judge erred in failing to consider whether there was a "special relationship" between Mr. Demediuk and the respondents, and in failing to recognize that the effect of finding such a relationship would be to shift the burden to the respondents to disprove undue influence. He submitted that the trial judge's failure to recognize the significance of a special relationship in the context of a claim of undue influence taints his reasoning process such that his judgment cannot stand. [14] In reply, counsel for the respondents submitted that the Ogilvie analysis does not apply in these circumstances, as it dealt with undue influence in the context of gifts inter vivos, rather than in the context of bequests made under a will. In the context of bequests made under a will, counsel for the respondents submitted that the governing principles are those set forth by the Supreme Court of Canada in Vout v. Hay, [1995] 2 S.C.R.

876. In that case, there was an allegation that a young friend of the testator had exercised undue influence on him in order to benefit under the will. The family members contesting the will argued that there were suspicious circumstances surrounding the execution of the will which should have cast the burden of disproving undue influence on to the beneficiary. In dealing with that submission, Mr. Justice Sopinka, speaking for the Court, stated (at paras. 21 and 28): The third issue [whether the execution of the will was obtained by undue influence] casts upon those attacking the will the burden of proving undue influence. This requires proof that the testator's assent to the will was obtained by influence such that instead of representing what the testator wanted, the will is a product of coercion. Although fraud is sometimes treated as a separate issue, "fraud and undue influence" are generally coupled and the burden of proof with respect to fraud also lies on those attacking the will. ... It might have been simpler to apply the same principles to the issue of fraud and undue influence so as to cast the legal burden onto the propounder in the presence of suspicious circumstances as to that issue. See [Wright, Cecil A. "Wills - Testamentary capacity - 'suspicious circumstances' - Burden of Proof" (1938), 16 Can. Bar. Rev. 405], supra, and Macdonell, Sheard and Hull on Probate Practice, [3rd ed. By Rodney Hull and Maurice C. Cullity. Toronto: Carswell, 1981], supra, at p.

33. Indeed the reference in Barry v. Butlin [(1838), 2. Moo. P.C. 480, 12 E.R. 1089] to the will of a "free and capable" testator would have supported that view. Nevertheless, the principle has become firmly entrenched that fraud and undue influence are to be treated as an affirmative defence to be raised by those attacking the will. They, therefore, bear the legal burden of proof. No doubt this reflects the policy in favour of honouring the wishes of the testator where it is established that the formalities have been complied with, and knowledge and approval as well as testamentary capacity have been established. To disallow probate by reason of circumstances merely raising a suspicion of fraud or undue influence would tend to defeat the wishes of the testator in many cases where in fact no fraud or undue influence existed, but the propounder simply failed to discharge the legal burden. .... The burden of proof with respect to fraud and undue influence remains with those attacking the will. See Craig v. Lamoureux, [1920] A.C. 349; Riach v. Ferris, [1934] S.C.R. 725; Re Martin, [MacGregor v. Ryan, [1965] S.C.R. 757], supra. [15] In Craig v. Lamoureux, [1920] A.C. 349, the Judicial Committee of the Privy Council reversed a decision of the Supreme Court of Canada which had held that the burden of proving undue influence lay on the sole beneficiary of a will, the husband of the

testatrix, who had assisted the testatrix in executing a new will while she was on her deathbed. The majority of the Supreme Court of Canada held that the onus was on the husband to prove, not only that the testatrix had been of sound mind and capable of understanding the will, but also the "righteousness of the transaction." In allowing the appeal on this point, Viscount Haldane, speaking for the Privy Council, pointed out the distinction between the burden with respect to undue influence in relation to gifts (as set forth in Ogilvie), and the burden with respect to undue influence in relation to bequests made under a will (as set forth in Vout). At pp. 356-57 of the decision, Viscount Haldane stated: No doubt a principle such as that relied on by the majority of the learned judges in the Supreme Court of Canada is one which is very readily applied in cases of gifts inter vivos. But, as Lord Penzance pointed out in Parfitt v. Lawless [(1872), 1. L.R.P. & D. 462], it is otherwise in cases of wills: When once it is proved that a will has been executed with due solemnities by a person of competent understanding and apparently a free agent, the burden of proving that it was executed under undue influence rests on the party who alleges this. It may well be that in the case of a law agent, or of a stranger who is in a confidential position, the Courts will scan the evidence of

independent volition closely, in order to be sure that there has been thorough understanding of consequences by the testator whose will has been prepared for him. But even in such an instance a will, which merely regulates succession after death, is very different from a gift inter vivos, which strips the donor of his property during his lifetime. And the Courts have in consequence never given to the principle to which the learned judges refer the sweeping application which they have made of it in the present case. There is no reason why a husband or a parent, on whose part it is natural that he should do so, may not put his claims before a wife or a child and ask for their recognition, provided the person making the will knows what is being done. The persuasion must of course stop short of coercion, and the testamentary disposition must be made with comprehension of what is being done. [16] Counsel for the appellants sought to distinguish Vout on the basis that it was not dealing with circumstances involving a "special relationship", but he was unable to point to any authority which supported his proposition that the burden of proof shifts to the beneficiary under a will to disprove undue influence in circumstances where there is a "special relationship", or which dealt with the concept of a "special relationship" in the wills context. In our view, the Vout decision, which

cites Craig with approval on this point, is a complete answer to the appellants' submission. That being the case, we can see no prospect of success in the principal ground of appeal which the appellants seek to pursue. [17] In her written submissions, Ms. Ravnyshyn (who was then acting in person on behalf of all appellants) also submitted that the trial judge erred in failing to deal with the evidence of several witnesses, and in overlooking evidence which showed that the respondents were complicit in Mr. Demediuk's death. Having reviewed the submissions filed on behalf of the appellants and the reasons for judgment of the trial judge, we are unable to find any prospect for success in these additional grounds of appeal, which were not actively pursued in oral argument by the appellants' counsel. [18] In summary, in our view, this appeal is bound to fail. While the Court is loathe to foreclose an appeal where the appellants have filed the transcripts and the appeal books, there are cases, and this is one, where the prospects of success on appeal are so remote that it would be manifestly unfair to the respondents to compel them to proceed to a hearing. That is particularly so in this case where we have concluded that the appeal has no prospect of success; where the respondents have been living under the shadow of very serious allegations since the action was commenced in 2001;

where there have been ongoing delays in proceeding with the appeal; and where there appears to be little likelihood of the respondents ever recovering their costs. [19] In the result, we would dismiss the application to reinstate the appeal, with costs of the application to reinstate to the respondents. Given our conclusion that the appeal is bound to fail, together with the other reasons set forth in para. 18, supra, we would also award the respondents their costs of the abortive application before Madam Justice Saunders. Had Ms. Ravnyshyn advised counsel for the respondents that she was going to be late for the hearing on November 9, 2006, the matter might well have been resolved at that time without either party incurring further costs. "The Honourable Madam Justice Prowse" "The Honourable Mr. Justice Donald" "The Honourable Mr. Justice Chiasson"