William Vince Family Trust v. Vince

2025 BCSC 272 William Vince Family Trust v. Vince

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: William Vince Family Trust v. Vince, 2025 BCSC 272 Date: 20250220 Docket: S1912053 Registry: Vancouver Between: Paul Balfour, in his capacity as trustee of the William Vince Family Trust, Miles Vince, Michaela Vince and Nathanial Vince Plaintiffs And Marilynne Vince, William Vince Non-Profit Housing Society, Mackenzie Fujisawa LLP, Norman Ian Cameron, also known as Nick Cameron, and Peter Wayne Soper Defendants And Mackenzie Fujisawa LLP Third Party Before: The Honourable Madam Justice Fitzpatrick Reasons for Judgment In Chambers Counsel for the Plaintiffs: R. Lee E. Chamberlain Counsel for the Defendant, Marilynne Vince: R. Fleming Counsel for the Defendant, Norman Cameron: N. Shirazian Counsel for the Defendant, Mackenzie Fujisawa LLP: R. Power Place and Date of Hearing: Vancouver, B.C. December 4-5, 2024 Place and Date of Judgment with Written Reasons to Follow: Vancouver, B.C. December 5, 2024 Place and Date of Written Reasons: Vancouver, B.C. February 20, 2025 Table of Contents INTRODUCTION.. 4 BACKGROUND FACTS. 4 PREVIOUS PROCEEDINGS. 6 A. SCBC Action No. S114975. 6 i) Disclosure (Griffin J.) 7 ii) Settle Order (Griffin J.) 7 B. SCBC Action No. S127219 (and Appeal) 8 ii) Removal Application (Steeves J.) 8 iii) Appeal from Steeves J. (Levine J.A.) 9 iv) Appeal Costs. 10 C. SCBC Action No. S108498. 10 i) Passing of Accounts

(Insurance Trust) (Master Taylor) 11 ii) Accounting Appeal (Warren J.) 12 D. SCBC Action No. S1711800 (Baird J.) 12 THE CURRENT ACTION.. 14 LEGAL PRINCIPLES. 16 Issue Estoppel 16 Cause of Action Estoppel 18 Abuse of Process. 19 RES JUDICATA RE PRIOR DECISIONS (2011-2016) 20 Issue Estoppel 21 (Im)Provident Investment 23 Conflict of Interest 25 Personal Benefit 27 Breach of Trust / Dishonesty / Bad Faith. 28 Conclusion re Issue Estoppel 29 Cause of Action Estoppel 30 Abuse of Process. 31 PASSING OF ACCOUNTS ISSUE. 32 Discussion. 33 CONCLUSION.. 39

INTRODUCTION [1] In this action, the plaintiffs allege that the defendant, Marilynne Vince, who was previously a trustee of a family trust, acted in breach of her duties and was negligent in terms of her dealing with the trust assets (the "Action"). [2] This claim stands after a long line of court proceedings and decisions that addressed issues relating to Ms. Vince's actions while she was acting as trustee of another trust and also, to a lesser degree, the family trust. In this action, the plaintiffs also advance issues as against other defendants also relating to the family trust. [3] At these applications, Ms. Vince seeks orders striking out all or portions of the pleading in terms of the various claims advanced against her in this action. Ms. Vince's applications are grounded in her position that litigation of the plaintiffs' claims is barred by the doctrine of res judicata or abuse of process. [4] The resolution of this issue has been before the Court for many months. The substance of the plaintiffs' claims involve matters stretching back to 2009. In addition, the plaintiffs' claim was filed in fall 2019 and it appears that limited efforts have been made to advance the claim in the past five years for various reasons. [5] I was advised that the outcome of these applications very much affects the ability of the parties to move this matter forward. The parties were

attempting to secure dates in February 2025 for various applications and any delay in delivering these reasons for judgment would likely have the undesirable effect of further delaying the resolution of the matter. [6] For the above reasons, a timely decision on these applications was appropriate. As such, I dismissed Ms. Vince's applications and awarded costs against her in favour of the plaintiffs, with written reasons to follow. These are those reasons.

BACKGROUND FACTS [7] In 2006 and 2007, William Vince settled two trusts. [8] Mr. Vince died in June 2008. [9] Ms. Vince, Mr. Vince's sister, eventually became the sole trustee under both trusts. [10] One trust was called the "Family Trust". The plaintiffs, Miles Vince, Michaela Vince and Nathanial Vince, are Mr. Vince's three children and beneficiaries of the Family Trust (the "Children"). The plaintiff, Paul Balfour, is the current sole trustee of the Family Trust. [11] The property settled on the Family Trust consisted of all outstanding shares of various companies which held the lands at 301, 319 and 325 Main Street, Vancouver, ‎BC (the "Main Street Companies")‎. [12] The other trust was called the "Insurance Trust". The asset of the Insurance Trust was the proceeds from an insurance policy taken out on Mr. Vince's life, just over $2 million. Mr. Vince's widow, Cynthia Miles, was an income beneficiary of the Insurance Trust. The Children were also income beneficiaries and sole beneficiaries of the capital upon the date of division. [13] The defendant, William Vince Non-Profit Housing Society (the "Society") is a society that Ms. Vince incorporated in December 2009, and which is indebted to the Family Trust. Between 2009 and 2018, Ms. Vince directed various transactions between the Main Street Companies, the Society and other entities relating to development activities of the

Vancouver properties. [14] Ms. Vince took these actions as sole trustee of both the Family Trust and the Insurance Trust. [15] The subject matter of these applications (and this action) concerns only Ms. Vince's action as trustee of the Family Trust. However, her position on these applications has involved a consideration of the prior litigation that took place from 2011 to 2016, which addressed her actions as trustee of the Insurance Trust and, to some extent, discussed her actions as trustee of the Family Trust. The final piece of the prior litigation in 2018-2019 did directly involve Ms. Vince's actions as trustee of the Family Trust. [16] Ms. Vince argues that this prior litigation is such as to ground the doctrine of res judicata or abuse of process to avoid the current claims being brought against her.

PREVIOUS PROCEEDINGS [17] In order to address the parties' arguments, a detailed review of the prior proceedings is required. A. SCBC Action No. S114975 [18] On July 25, 2011, in SCBC Action No. S114975, Cynthia Miles, the Children's mother, brought a petition against Ms. Vince for the following relief: a) particulars of the administration of the Insurance Trust - including the loan made by the Insurance Trust to the Family Trust; b) an order that Ms. Vince's accounts as trustee of the Family Trust be passed before a registrar; c) an order that the Registrar recommend a fair and reasonable allowance for Ms. Vince's administration of the Insurance Trust and the Family Trust; d) an order that Ms. Vince provide copies of her accounts for the Insurance Trust and Family trust on a regular basis; e) that counsel be appointed to represent the minor Children; f) the petitioner's costs be taxed as special costs and be paid from the Insurance Trust and the Family Trust. (the "2011 Insurance Trust Petition") [19] The 2011 Insurance Trust Petition was brought pursuant to Rule 18-1(12), seeking "special directions ... for the taking of the accounts of the Insurance Trust and the Family Trust", as well as pursuant to the inherent jurisdiction of the Court. Rule 18-1 is the Rule that provides for the Court to direct an accounting, and to give directions in respect of the accounting. [20] Ms.

Miles is a beneficiary of the Insurance Trust, but not the Family Trust. Ms. Miles is not a party to the Action. i) Disclosure (Griffin J.) [21] In the reasons following the hearing of the 2011 Insurance Trust Petition (Miles v. Vince, 2011 BCSC 1706 [Miles ITP]), Justice Griffin (as she then was) found that while Ms. Miles could not stand in the shoes of the beneficiaries of the Family Trust (para. 14), she was still entitled to information in respect of both Trusts: [15] As a fiduciary in her role as Trustee of the Insurance Trust, the information known to the Trustee about these three entities, the Insurance Trust, the Family Trust, and the Society, is information which should be shared with the beneficiaries of the Insurance Trust, including the petitioner. Knowledge and access to this information presumably informed the respondent in the decisions she made in her financial dealings between the three entities. The Trustee, the respondent, has not put forward any evidence of circumstances justifying withhold of this information from the petitioner. [22] The court ordered Ms. Vince to provide Ms. Miles with information regarding the Family Trust, on the basis of her standing as beneficiary of the Insurance Trust: Miles ITP at paras. 15-16. [23] The court made no order with respect to the passing of accounts by Ms. Vince for the Insurance Trust and the Family Trust, or whether

they ought to be heard together or consecutively, and recommended that the parties try and reach an agreement on this point: Miles ITP at para. 19. ii) Settle Order (Griffin J.) [24] On January 25, 2012, the parties appeared before Griffin J. to settle her order arising from the earlier decision. [25] In her reasons for judgment (Miles v. Vince, 2012 BCSC 2081), Griffin J.: a) specifically stated that she did not rule on Ms. Miles' entitlement to an order for an accounting with regard to the Family Trust (para. 21); and b) clarified the scope of her order and confirmed that the question of whether Ms. Miles was entitled to see the financial statements of the Main Street Companies was not determined and remained a live issue (para. 31). B. SCBC Action No. S127219 (and Appeal) [26] On October 15, 2012, in SCBC Action No. S127219, Ms. Miles brought a petition against Ms. Vince for the following relief: a) that Ms. Vince be removed as trustee of the Insurance Trust and replaced; b) that Ms. Vince forthwith pass her accounts as trustee of the Insurance Trust; c) an interim and permanent injunction restraining Ms. Vince from renewing or extending the due date of the loan made by the Insurance Trust to the Family Trust); and d) her special costs be paid by Ms. Vince personally, or from the Insurance Trust. (the "2012 Insurance Trust Petition") [27] In the 2012 Insurance Trust

Petition, Ms. Miles sought no relief against Ms. Vince in relation to the Family Trust. ii) Removal Application (Steeves J.) [28] In April 2013, the hearing of this petition came on for hearing for Justice Steeves. [29] In the court's reasons for judgment (Miles v. Vince, 2013 BCSC 888), Steeves J. discussed the background of both Trusts, but specifically noted that Ms. Miles was not a beneficiary of the Family Trust and that the Family Trust was not directly involved in the proceedings. In particular: [2] There is also a William Vince Family Trust ("Family Trust") that will be referred to below. The three children and William Vince (now deceased) are income and capital beneficiaries. The respondent is the sole trustee of the Family Trust. The petitioner is not a beneficiary of the Family Trust and that trust is not otherwise a party to this application. . [39] The petitioner is a capital and income beneficiary of the Insurance Trust, among others (she is not a division date beneficiary). The other beneficiaries, the children, are not parties to this application. The respondent is the sole trustee of the Insurance Trust. The respondent is also the sole director of the Family Trust, the sole director of the Main Street Companies and a director and the president of the Housing Society. The petitioner is not a beneficiary of the Family Trust. [43] [ ] The affairs of the Family

Trust or other entities are not directly at issue. [90] The focus of this application is the Insurance Trust. It was settled in 2007. There is another trust, the Family Trust, which was settled in 2006. The petitioner is an income and capital beneficiary of the Insurance Trust. She is not a beneficiary of the Family Trust. No other beneficiaries of the Insurance Trust are parties to this application and no beneficiaries from the Family Trust are parties. [30] Ultimately, Steeves J. found that Ms. Miles' concerns regarding Ms. Vince's conflict in her various roles (trustee of the Insurance Trust, trustee of the Family Trust, director of Main Street Companies and the Society) was speculative, as default on the loan from the Insurance Trust to the Family Trust had not yet occurred (para. 82). As such, the Court dismissed the petition, finding no basis upon which Ms. Vince should be removed as a trustee of the Insurance Trust. iii) Appeal from Steeves J. (Levine J.A.) [31] Ms. Miles appealed. [32] In July 2014, the court overturned the decision of this Court: Miles v. Vince, 2014 BCCA 289. [33] The court found that Ms. Vince breached her statutory duty to prudently invest the Insurance Trust's property, was in a conflict of interest between her duty to the Insurance Trust and her positions in related entities which are involved in the development of real estate, and failed to act

with an even hand among the beneficiaries of the Insurance and the related entities. The court ordered that Ms. Vince be removed and replaced as trustee of the Insurance Trust (para. 2). [34] The court confirmed that the Children were not parties to the litigation (para. 11). [35] As was the case before Steeves J., the court noted that the litigation was focused on whether the loan from the Insurance Trust to the Family Trust was a prudent investment for the Insurance Trust (para. 51). In the result, the court concluded that it was not (paras. 70-72). By this time, the loan was in default (para. 73). iv) Appeal Costs [36] In the summer of 2014, the court addressed costs arising from its decision to remove Ms. Vince as trustee of the Insurance Trust. [37] The court ordered that Ms. Miles' costs should be paid from the Insurance Trust as special costs, as there was no basis to find that Ms. Vince had profited personally or acted dishonestly so as to award costs against her personally: Miles v Vince, 2014 BCCA 418 at paras. 13-14. C. SCBC Action No. S108498 [38] On December 24, 2010, in SCBC Action No. S108498, Ms. Vince brought a petition under s. 99(1) of the Trustee Act to have her accounts for the Insurance Trust for the period of March 2, 2007 to October 31, 2010 passed before a Registrar, and her remuneration set. [39] In August 2012, the Registrar certified Ms. Vince's

passing of her accounts for the Insurance Trust for the above time frame, although the matter of her remuneration was adjourned until the next passing of her accounts. i) Passing of Accounts (Insurance Trust) (Master Taylor) [40] On November 18, 2014, Ms. Vince brought a second application under ss. 88 and 99 of the Trustee Act to pass her accounts for the Insurance Trust for the period of November 1, 2010 to July 16, 2014 (the date of her removal), before a Registrar. She also sought to have her remuneration set for the Insurance Trust from March 2007-July 2014 (the "Insurance Trust Passing of Accounts Proceeding"). [41] The application was heard by then Master Taylor, sitting as Registrar, who issued reasons on February 1, 2016: Re Vince Insurance Trust, 2016 BCSC 145. [42] In the Insurance Trust Passing of Accounts Proceeding, the beneficiaries of the Insurance Trust took issue with: a) the legal costs in relation to the loan documentation incurred by the Vince Insurance Trust--which the court found to be reasonable (paras. 14-17); b) the lawyer's fees for preparation of the trust accounts--which the court found to be excessive (paras. 18-19); c) the legal work for the benefit of Ms. Vince in another capacity--the court found that there was no evidence tendered by the beneficiaries that the legal work was for anything but the legal charges related to the Insurance Trust

(para. 20); d) the legal work on behalf of Ms. Vince in her capacity as trustee of the Insurance Trust in relation to the application to have her removed--which the court found to be reasonable (para. 21); and e) the appraisal charges of Grover Elliot and the consultancy charge of MDO Real Estate--which the court found to be reasonable (paras. 22-23). [43] Master Taylor noted that the hearing to pass Ms. Vince's accounts as trustee of the Insurance Trust was taking place when the accounts for the Family Trust had not been passed and presumably would be passed in the future (para. 28). [44] The Master determined Ms. Vince's compensation for the relevant time frame and certified Ms. Vince's accounts with some adjustments (paras. 45-47). ii) Accounting Appeal (Warren J.) [45] On June 29, 2016, an appeal of Master Taylor's decision was heard, as brought by Ms. Miles and Brian O'Sullivan, the current trustee of the Insurance Trust. [46] Justice Warren issued her reasons for judgment on October 31, 2016: Re Vince Insurance Trust, 2016 BCSC 1992. [47] Warren J. allowed the appeal to the extent of returning the matter to the Master to determine if any of the contested expenses were expenses that another party was obliged to bear by reason of the loan documentation (para. 60). The court dismissed the balance of the appeal regarding certain of Ms. Vince's expenses where she was in a

conflict of interest (para. 44), or in relation to Ms. Vince's legal costs in defending the application for her removal (para. 63) or the fees she was awarded (para. 74). D. SCBC Action No. S1711800 (Baird J.) [48] The final previous proceeding directly involved the Family Trust. [49] On December 21, 2017, in SCBC Action No. S1711800, the plaintiffs brought a petition seeking: a) the removal of Ms. Vince as trustee of the Family Trust; b) the production of an accounting and all related documents by Ms. Vince, and her counsel Mackenzie Fujisawa LLP; c) that Ms. Vince pass her accounts as trustee of the Family Trust; d) that the Society account for receipt and disbursement of Family Trust property; e) that, following document production, Ms. Vince and Mackenzie Fujisawa LLP attend an examination by counsel for the petitioners; and f) costs be awarded in favour of the petitioners--special costs against Ms. Vince and Mackenzie Fujisawa LLP, or alternatively party and party costs. (the "Family Trust Petition") [50] There was no response to the Family Trust Petition from the Society, although duly served. [51] On the eve of the hearing of the Family Trust Petition on May 10, 2018, Ms. Vince consented to being removed as trustee of the Family Trust. [52] In June 2018, Justice Baird gave his reasons for judgment: Vince v. Vince, 2018 BCSC 1044. [53] According to Baird J., what remained

before him "was a request for an accounting of trust property accompanied by a demand for specific disclosure of documents and information concerning trust administration" (para. 3). [54] Baird J. specifically stated that: [3] For several years now, in my view, the petitioners have been unjustifiably left in the dark about important aspects of Ms. Vince's dealing with trust property, and their legitimate inquiries have been ignored or incompletely addressed. [55] At para. 14, Baird J. ordered that: a) By consent, Ms. Vince pass her accounts before the Registrar respecting her administration and management of the Family Trust; b) On or before July 20, 2018, Ms. Vince provide to the petitioners and Mr. Balfour (the new trustee of the Family Trust) certain documents related to her administration of the Family Trust--some of which the plaintiffs say they are still waiting to receive; c) All relief sought against Mackenzie Fujisawa LLP be adjourned; and d) Costs to the petitioners on Scale B. (the "Baird Order") [56] At para. 15, Baird J. declined to order that the Society produce documents in their possession or control related to the Family Trust because the Society was not a trustee of the Family Trust, and he held that he was unable to do so. [57] No formal order has been entered arising from Baird J.'s reasons. [58] Despite the Baird Order, Ms. Vince has not passed her accounts before the Registrar as yet. [59] The Action was filed in October 2019, over a year after the Baird Order.

THE CURRENT ACTION [60] In October 2019, Mr. Balfour, in his capacity as trustee of the Family Trust, and the Children, filed a notice of civil claim commencing the Action. In December 2019, the plaintiffs filed an amended notice of civil claim (the "ANOCC"). [61] In summary, in the ANOCC, the plaintiffs seek the following relief against Ms. Vince: a) damages for breach of trust, breach of fiduciary duty and negligence; b) damages in the amount of all penalties and interest incurred by the Family Trust for failure to pay taxes owed to the Canada Revenue Agency; c) an order that Ms. Vince deliver various information and accountings regarding the administration of the Family Trust--some of which was ordered to be produced by Baird J. in S1711800, but never was; and d) an order tracing all such monies paid to Ms. Vince or for her benefit. [62] At para. 51 of the ANOCC, the plaintiffs say that all particulars of Ms. Vince's breaches of duty and breach of fiduciary obligations are not currently known to them arising from her failure to pass her accounts for the Family Trust and to provide them with timely reporting. In any event, the plaintiffs say that the breaches currently known to them include: a) Investing the Family Trust's assets in the Society, including transferring assets without obtaining proper security; b) Failing to collect money owing by the Society to the Family

Trust; c) Using security held by the Family Trust to secure amounts owing by the Society to the Insurance Trust; d) Releasing guarantees and mortgages held by the Family Trust without requiring payment of debts owing by the Society to the Family Trust; e) Converting an asset sale to a share sale and then failing to pay or avoid payment to the Family Trust of monies owing; f) Failing to maintain or keep proper, adequate or any accounting records for the Family Trust since 2006 and failing to report and account to the plaintiffs as Beneficiaries; g) Charging legal fees to the Family Trust that were unrelated to the Family Trust; h) Acting in a conflict of interest in relation to the Family Trust, given her role in the Society and the Main Street Companies; and i) Using assets of the Family Trust for her personal benefit. [63] In May 2020, Ms. Vince and the Society filed a response to civil claim. In the Legal Basis, Ms. Vince raised limitation issues and alleged that the Action was an abuse of process. [64] ‎The trial of this matter was set to begin in February 2025, for five weeks. However, the trial has been recently adjourned given the outstanding pre-trial matters that need to be addressed. [65] It is apparent that Ms. Vince has unfortunately waited some over four years to bring these applications to strike the ANOCC, although no particular issues arise by reason of the delay. ‎

LEGAL PRINCIPLES [66] The relevant legal principles are not in dispute. [67] As Ms. Vince argues, the law rightly seeks finality to litigation. As was colourfully put in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para. 18, a litigant is "only entitled to one bite at the cherry". [68] As stated in Danyluk at para. 20, the law has developed to include a number of concepts to prevent abuse in the decision-making process. These include issue estoppel and cause of action estoppel under the rubric of res judicata. Another technique arises from the concept of collateral attack. Finally, even when the specific requirements of issue or cause of action estoppel are not met, the court maintains the ability to apply the doctrine of abuse of process to prevent misuse of the court's process: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 [C.U.P.E.] at para.

42. Issue Estoppel [69] The requirements of issue estoppel were set out in Danyluk at para. 25, as follows, in that: (1) the same question has been decided; (2) the judicial decision which is said to create the estoppel was final and, (3) the parties to the judicial decision or their privies were the same persons as the parties to the proceeding in which the estoppel is raised or their privies. [70] On the issue of "same question", Justice Marchand (as he then was) adopted in Rossner v. Nystrom, 2019 BCSC 583 an analysis as to what amounts to "the same question" (para. 32, citing the book by D.J. Lange, The Doctrine of Res Judicata in Canada, 4th ed. (Markham: LexisNexis: 2015)): Ø The question to be decided in the second proceeding must be the same question that has been decided in the first proceeding, Ø The question decided in the first proceeding, governing the same question test in the second proceeding, must be fundamental to the decision in the first proceeding, not collateral to the decision, Ø The question decided in the first proceeding, governing the same question test in the second proceeding, includes all of the subject matter encompassing the question whether decided expressly or by necessary logical consequence, Ø If the question has been decided in the first proceeding, the same question cannot be relitigated in a second proceeding based on a separate and

distinct cause of action. [71] Another principle of issue estoppel is that "[t]he same parties, and their privies, cannot relitigate the same question in a second proceeding" [emphasis added]: Bence v. Okanagan-Similkameen (Regional District), 2002 BCSC 1622 at para 28. [72] Rossner addressed the issue of who is a "privy" at para. 34, citing Giles v. Westminster Savings Credit Union, 2006 BCSC 1600 at para. 45, with emphasis on whether a person has a "participatory interest in the outcome": A privy of a party has been variously defined in issue estoppel cases. Before a person can be a privy of a party, there must be community or privity of interest between them, or a unity of interest between them. They cannot be different in substance. Privity can be one of blood, title, or interest. A person who is privy in interest to a party in an action and has notice of that action is equally bound by the findings in that action. A privy is a person who has a right to participate with a party in the proceeding or who has a participatory interest in its outcome. A person who has no right to participate as a party in a proceeding lacks a due process requirement to make a finding of privity of interest. To determine whether a person has a participatory interest in the outcome of the proceeding is to determine whether the outcome could affect the liability of that person. Privity requires

parallel interest in the merits of the proceeding, not simply a financial interest in the result. However, a non-party who enters into a formal agreement with a party in a proceeding for disposing of the proceeds is a privy of that party and bound by the first proceeding. [Emphasis added] [73] In Tham v Bronco Industries Inc., 2017 BCSC 828, aff'd 2018 BCCA 207, Justice Watchuk also addressed the question as to who is a privy, stating: [207] A privy is traditionally someone who controls a lawsuit though not a party to it; someone whose interests are represented by a party to the lawsuit; or a successor in interest to anyone having a derivative claim, although this list is not exhaustive and determinations of privity must be made on a case-by-case basis (James v. British Columbia, 2007 BCCA 547 at para. 53). It is essential that the party to be estopped have some kind of interest in the previous litigation or subject matter (Danyluk at para. 59; Quatrosense Environment Ltd. v. Britton, 2001 BCSC 1382 at para. 15) and that there be a sufficient degree of identification between the parties said to be privies such that a decision respecting one of them can legitimately bind the other (Giles v. Westminster Savings Credit Union 2006 BCSC 1600 at paras. 45-47). Cause of Action Estoppel [74] In Cliffs Over Maple Bay (Re), 2011 BCCA 180 at para. 28, the court set out the traditional

criteria for cause of action estoppel: 1. There must be a final decision of a court of competent jurisdiction in the prior action [the requirement of "finality"]; 2. The parties to the subsequent litigation must have been parties to or in privy with the parties to the prior action [the requirement of "mutuality"]; 3. The cause of action and the prior action must not be separate and distinct; and 4. The basis of the cause of action and the subsequent action was argued or could have been argued in the prior action if the parties had exercised reasonable diligence. [Emphasis removed] [75] The plaintiffs also refer to the principles that apply to cause of action estoppel from D.J. Lange's The Doctrine of Res Judicata in Canada, 5th ed (Toronto: LexisNexis, 2021) at Chapter 3(1): · The plaintiff must bring forward the subject matter of the whole case relating to the cause of action at one time, once and for all, and every remedy flowing from the cause of action based on the subject matter. · The defendant must bring forward every defence based on the subject matter at one time, once and for all, and any related counterclaim which is not a separate and distinct cause of action. · All subject matter germane to the claim or defence which could have been brought forward in the first action by the exercise of reasonable diligence, but was not, is estopped in a second action. · A separate

and distinct cause of action is not governed by cause of action estoppel and need not be brought in the same action, either as a claim by the plaintiff or as a counterclaim by the defendant. · Cause of action estoppel applies to the same parties, and their privies, in the second action and in any second proceeding which is not an action. This passage was cited approvingly in Laufer v. Canadian Investment Protection Fund, 2004 CanLII 31862 (ON SC), [2004] O.J. No. 4016 at para. ‎‎7, aff'd Laufer v. Monardo, 2005 CanLII 17770 (ON CA), [2005] O.J. No. 2054 (C.A.). [76] Finally, the plaintiffs refer to the principle that cause of action estoppel will not apply to a plaintiff who is recovering in a second action what that plaintiff did not have the opportunity to recover in the first action because the facts relied upon in the second action did not arise until after the date of judgment in the first action: Canadian Imperial Bank of Commerce v. Charbonnages de France International S.A. (1995), 36 C.B.R. (3d) 306 (B.C.S.C.), 1995 CanLII 521 (BC SC) at paras. 26-27; aff'd (1996), 42 C.B.R. (3d) 163 (B.C.C.A.), 1996 CanLII 1445 (BC CA) at para.

11. Abuse of Process [77] In order to establish that the Action should be dismissed as an abuse of process, Ms. Vince must establish what is described in C.U.P.E. as a misuse of the court's procedure. Arbour J., speaking for the majority, stated: [35] Judges have an inherent and residual discretion to prevent an abuse of the court's process. This concept of abuse of process was described at common law as proceedings "unfair to the point that they are contrary to the interest of justice" (R. v. Power, [1994] 1 S.C.R. 601, at p. 616), and as "oppressive treatment" (R. v. Conway, [1989] 1 S.C.R. 1659, at p. 1667). McLachlin J. (as she then was) expressed it this way in R. v. Scott, [1990] 3 S.C.R. 979, at p. 1007: abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community's sense of fair play and decency. The concepts of oppressiveness and vexatiousness underline the interest of the accused in a fair trial. But the doctrine evokes as well the public interest in a fair and just trial process and the proper administration of justice. [37] In the context that interests us here, the doctrine of abuse of process engages "the inherent power of the court to prevent the misuse of its procedure, in a way that would ... bring the administration of justice into disrepute" (Canam

Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A., dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC 63)). Goudge J.A. expanded on that concept in the following terms at paras. 55-56: The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R. 990 (C.A.). One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined. [Emphasis added.] As Goudge J.A.'s comments indicate, Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice. [78] As emphasized in

C.U.P.E. at paras. 43-44 and 50-51, the focus is not on the interests of the parties, but rather the integrity of the adjudicative function. RES JUDICATA RE PRIOR DECISIONS (2011-2016) [79] In her notice of application filed June 24, 2024, Ms. Vince applies to strike portions of the ANOCC based on the decisions of this Court and the Court of Appeal in the prior proceedings that took place between 2011-2016. [80] Ms. Vince seeks to dismiss the plaintiffs' claims against her as set out in the ANOCC (paras. 25, 35, 45, 46, 48, 49, 50-51, 52(a)-(c), (e), (h)-(j) and (n), 57, 60, and 63) to the extent that they allege that a) The Main Street development was an improvident investment for the Family Trust; b) Ms. Vince acted improperly, or in a conflict of interest, by being a director of the Society and its subsidiaries, the Main Street companies, during the course of the Main Street development; c) Ms. Vince profited personally from her activities in relation to the Society, Main Street companies, and the Main Street development; and d) Ms. Vince acted in breach of trust, whether willful or not, or otherwise acted dishonestly, or in bad faith, in relation to her activities above. [81] As I stated at the outset of these reasons, I am unable to find that the doctrines of res judicata (issue estoppel or cause of action estoppel) or abuse of process bar the Action. Issue Estoppel [82]

Ms. Vince has failed to establish issue estoppel. [83] Firstly, there is no privity in that the plaintiffs were not before the Court in the earlier proceedings or, if they were, it was in a different capacity: a) In the 2011 Insurance Trust Petition (S114975), the proceeding was brought by Ms. Miles as a beneficiary under the Insurance Trust, for relief pursuant to Rule 18-1(1) and the inherent jurisdiction of the court to obtain an accounting and documents from Ms. Vince, as trustee of the Insurance Trust. Ms. Miles is not a beneficiary of the Family Trust. The Family Trust beneficiaries were not a party to this petition proceeding; b) In the 2012 Insurance Trust Petition (S127219), the petition proceeding was brought by Ms. Miles as a beneficiary under the Insurance Trust for the removal of Ms. Vince as trustee of the Insurance Trust, and for an order that Ms. Vince the pass her accounts. Ms. Miles is not a beneficiary of the Family Trust. In the decisions, this Court specifically confirmed that (1) the Family Trust was not a party to the proceeding; and (2) the other beneficiaries (of the Insurance Trust and the Family Trust) were not parties to the application (Miles v. Vince, 2013 BCSC 888 at para. 2; Miles v. Vince, 2014 BCCA 289 at para. 11). c) I acknowledge that the ANOCC at para. 24 refers to all of the Insurance Trust beneficiaries, including the plaintiffs, as

commencing proceedings to remove Ms. Vince as trustee of the Insurance Trust. However, this is clearly in error although the plaintiffs would have benefitted from the decision to remove her; and d) In the Insurance Trust Passing of Accounts Proceeding (S108498), the petition proceeding was brought by Ms. Vince in order to pass her accounts, initially for the period between March 2, 2007-October 31, 2010, and later between November 1, 2010-July 16, 2014. All of the beneficiaries of the Insurance Trust were a party to the proceeding and were represented at the hearings. However, the plaintiffs can only be taken to have participated in those hearing as beneficiaries of the Insurance Trust, not in their capacities as beneficiaries of the Family Trust. [84] The Children, as beneficiaries of the Family Trust, had no right or standing to participate as a party in the above proceedings. As such, no privity existed that would engage the doctrine of issue estoppel. [85] Further, even if Ms. Miles was determined to be a privy for the Children, in their capacities as beneficiaries of the Insurance Trust in Court Action Nos. S127219, S114975 and S108498, Ms. Miles could not be a privy for the Children in their capacities as beneficiaries of the Family Trust. Ms. Miles was not a beneficiary of the Family Trust, or in any way connected to the Family Trust, and the proceedings which were

brought by her and Ms. Vince in those Court Actions were only in respect of the Insurance Trust. [86] Secondly, the answer to the question as to whether the "same issues" have been decided in the prior litigation from 2011-2016 must be "No", for the following reasons. (Im)Provident Investment [87] Ms. Vince alleges Steeves J. (in Miles v Vince, 2013 BCSC 888) considered the advisability of the Main Street development, and her conduct in relation to it, including the events raised in the Action (see paras. 18-21 and 52 (a)-(c) of the ANOCC). She notes that Steeves J. found the Insurance Trust's loan to be a provident transaction. [88] However, Steeves J. was considering Ms. Vince's actions in relation to her capacity as trustee of the Insurance Trust, given that the focus was to remove her as trustee in that capacity. It was from that perspective that Steeves J. considered the advisability of the loan from the Insurance Trust in terms of being repaid (paras. 73). Steeves J. was not considering the matter from the perspective of the Family Trust in terms of the decision to embark upon the Main Street development as a whole and what decisions were made and transactions later undertaken by Ms. Vince. [89] Steeves J. stated: [55] Overall, I am unable to find any specific intention on the part of the settlor, Mr. Vince. That is, the trust instrument does not say that the trust will

be used to provide for his wife and children, nor does it say that it will be used to develop social housing. All that can be taken from the trust instrument is that the purpose of the trust is to invest the Trust Property. [56] This is not the end of the review of the intention of the settlor and the purpose of the Insurance Trust. It is agreed and even self-evident that the Insurance Trust is for the benefit of the beneficiaries, the petitioner and her children. The objective of the trust is to maintain the Trust Property for the benefit of the beneficiaries. Further, the trust instrument expressly states that the respondent trustee has the "absolute discretion" to invest the Trust Property, the ability to make loans and other powers. [57] Having said that, the evidence is clear that the settlor, prior to his death in June 2008, was involved in land development in the Downtown Eastside. He had purchased three of the Main Street Properties, he tried to buy the property at 307 Main Street, he set up the three holding companies and he made improvements to the properties. This is consistent with the respondent's account of the settlor telling him that the Insurance Trust should be used to develop social housing, essentially a continuation of what he had started. And it is broadly consistent with the terms of the trust instrument inasmuch as the purpose is to invest the Trust

Property. I do not conclude that the settlor's intention when he created the Insurance Trust was to develop social housing on the Main Street Properties. However, it is a reasonable conclusion that social housing is not inconsistent with Mr. Vince's intention as evidenced in the trust instrument. [58] In sum, the respondent trustee has extensive specific powers to implement the general purpose of the Insurance Trust, the investment of the Trust Property. [Emphasis added.] [90] Indeed, at para. 73, Steeves J. held that the argument that the investment by the Insurance Trust in the loan was improvident was speculative, not that there was no basis for it. In addition, as noted by the plaintiffs, the hearing before Steeves J. was held in April 2013, before the January 2014 refinancing of the Main Street Properties and the sale of the Main Street Companies to another entity. Both events are raised at paras. 23, 29-31 and 52(f)-(g) of the ANOCC. [91] Further, Steeves J.'s decision was overturned on appeal. Again, the court considered the issue from the perspective of the Insurance Trust, not the Family Trust, finding that the investment in the development by the Insurance Trust was Street development was not advisable and put the Trust's assets at risk (Miles v. Vince, 2014 BCCA 289 at paras. 70-76). [92] Ms. Vince argues that there is no suggestion that the Court of Appeal concluded

that the development was an imprudent investment by the Family Trust. I agree; however, that is not the enquiry and the better point is that the Court of Appeal made no finding that it was or was not a prudent investment by the Family Trust. [93] In addition, I disagree with Ms. Vince that the Court of Appeal proceeded on the assumption that is was prudent. I disagree with Ms. Vince who attempts to improperly equate the likelihood of the Insurance Trust being repaid under the loan with the advisability of the entire development scheme undertaken by the Family Trust. [94] While Steeves J. and the Court of Appeal would have considered and mentioned aspects the overall development activities of Ms. Vince within the Family Trust that were known at the time, that was not the focus of the enquiry. [95] Further, nothing in the Insurance Trust Passing of Accounts Proceeding can be taken as a finding that the Main Street development was a provident investment for the Family Trust. While Master Taylor stated in his reasons (Re Vince Insurance Trust, 2016 BCSC 145 at para. 35) that "[t]he court has no doubt that Ms. Vince believed she was acting in the best interests of the beneficiaries and fulfilling her brother's wishes as settlor of the trusts", the only issue before the Court was in relation to Ms. Vince's administration of the Insurance Trust, not the Family Trust. [96] In addition,

Master Taylor stated in his reasons at para. 23 that: "[i]n my view, it was a reasonable exercise of her broad discretion as trustee to obtain the appraisals and consultations for the benefit and protection of the collateral of the trust". However, Master Taylor did not state that the Main Street development as a whole was a reasonable exercise of Ms. Vince's discretion, and in any event Master Taylor's comments were with respect to the Insurance Trust. [97] Accordingly, at no time has this Court or the Court of Appeal found that the Main Street development was a provident investment for the Family Trust; to the contrary, the only finding was that the December 2009 loan by the Insurance Trust to the Family Trust was not a provident investment for the Insurance Trust. Conflict of Interest [98] Ms. Vince also argues that Steeves J. found that "[t]here was nothing improper about Ms. Vince being a director and officer of the Main Street Companies and the Society". [99] Steeves J. stated: [79] I conclude that, as permitted by the trust instrument and sanctioned by the authorities, there is nothing objectionable per se in a trustee of a trust being a director or shareholder of a company that is controlled by the trust. [80] Again, the concern of the petitioner is that the respondent controls too many companies, to the point that she is unaware of which organization she owes a duty

to. For example, it is submitted that, if the Loan is not repaid, the respondent will have to retain counsel to act for the creditor, the Insurance Trust, then retain counsel to act for the debtor, the Family Trust. This would amount to the respondent suing herself, according to the petitioner, and that would be a hopeless conflict. [81] That would indeed be a difficult situation for the respondent. However, before that occurs a number of other things would have to happen. First of all, as acknowledged, there would have to be a default of the Loan. There is no evidence that is happening or is about to happen. Then the various securities in place for the Loan would have to be unavailable. As above, the securities are a promissory note, guarantees and postponements of claim from each of the Main Street Companies in favour of the Insurance Trust, general security agreements granted by each of the Main Street Companies in favour of the respondent as trustee for the Insurance Trust, assignment of rents from the Main Street Companies to the Insurance Trust and assignment of a portion of the second mortgage held by the Family Trust on the Main Street Properties. [82] On the basis of the above I conclude that the petitioner's concern about the respondent being in a conflict of interest in the event the Loan is not repaid is speculative. Assuming the very worst - default on the Loan and

the respondent has to make decisions against entities she has a direct interest in - she will have to make other decisions that are necessary to ensure she is not in any conflict. That situation does not exist at this time. [100] Again, Steeves J. found that it was too speculative at the time of the hearing (April 2013) to decide whether or not Ms. Vince was acting in conflict in her various capacities. I agree with the plaintiffs that Steeves J. did not make any finding that she was not in a conflict or that it was definitely acceptable to act in those various roles. [101] Steeves J. found that something more than a possibility of a conflict in the future if certain events were to happen is required for a finding of conflict of interest. I agree with the plaintiffs that this statement does not mean that Ms. Vince could never be in conflict in her various roles. Significantly, Steeves J. did not conclude that Ms. Vince was not in conflict in her capacity as trustee of the Family Trust. [102] In addition, the Court of Appeal found that Ms. Vince was in a conflict of interest, which jeopardized her proper and efficient administration of the Insurance Trust (Miles v. Vince, 2014 BCCA 289 at paras. 77-79 and 87). As with Steeves J., the court did not undertake any analysis from the point of view of the Family Trust and whether conflicts arose in that respect and what effect, if

any, those conflicts had. Personal Benefit [103] Ms. Vince also argues that Steeves J. found Ms. Vince did not benefit personally in relation to any of her activities as trustee for both the Insurance Trust and the Family Trust. [104] In determining that there was no basis to remove Ms. Vince as trustee of the Insurance Trust, Steeves J. stated that: [83] The petitioner also points out that the duty of a trustee is to place the interest of the trust and the beneficiaries ahead of her own interest. This submission continues by alleging that the respondent has advanced the interests of other parties such as the Housing Society over the Family Trust and then the Family Trust over the Insurance Trust. The result is that the risk is borne entirely by the Insurance Trust while the reward (if the project is successful) is realized entirely by the Housing Society. [84] In my view, this concern is answered first of all by the fact that the respondent does not benefit personally from her positions (except for reasonable expenses) [105] At paras. 87 and 98-99, Steeves J. stated that there was no evidence that Ms. Vince had acted to benefit herself. [106] The Court of Appeal noted in its costs award that this finding was not disturbed on appeal: Miles v. Vince, 2014 BCCA 289 at para. 13. [107] I agree with the plaintiffs that Steeves J. did not find that Ms. Vince had never benefitted

personally from her administration of the Family Trust. Again, the focus at this application was Ms. Vince' decision in relation to the Insurance Trust. Rather, Steeves J.'s comment was made in the context of the allegation that Ms. Vince had personally benefitted by her advancing the interests of other parties, such as the Housing Society, over the Family Trust and the Family Trust over the Insurance Trust. [108] In addition, as I read the reasons, Steeves J.'s comment at para. 87 about her not benefitting personally was only made in the context of her not being a beneficiary of either Trust and that there was no evidence of any funds paid to her beyond expenses. [109] Finally, in April 2013, at the hearing before Steeves J., Ms. Vince had not even presented her final accounts for the Insurance Trust or the Family Trust. I cannot see how Steeves J. could have made such a blanket finding without facts that were then unknown to the plaintiffs, let alone the Court. [110] In addition, in the Insurance Trust Passing of Accounts Proceeding, both the Master and Warren J. made comments about Ms. Vince not benefitting personally: Re Vince Insurance Trust, 2016 BCSC 145 at para. 22; Re Vince Insurance Trust, 2016 BCSC 1992 at paras. 38-40, 44. However, again, this was in relation to the Insurance Trust, not the Family Trust, when Ms. Vince was only passing her accounts for the Insurance

Trust. Breach of Trust / Dishonesty / Bad Faith [111] Ms. Vince also argues that Steeves J. found Ms. Vince did not benefit personally and did not act dishonestly in relation to any of her activities in either the Insurance Trust or the Family Trust. [112] At para. 99, Steeves J. found that Ms. Vince has not acted dishonestly. The Court of Appeal did not disturb this finding in relation to the costs award: Miles v. Vince, 2014 BCCA 289 at para. 93. [113] Again, it must be remembered that Steeves J.'s finding was focussed on Ms. Vince's actions as trustee of the Insurance Trust, not the Family Trust. The Action does not involve any allegations concerning Ms. Vince's actions as trustee of the Insurance Trust; rather, the allegation is that she acted in breach of her duties and fiduciary obligations to the Family Trust (ANOCC, paras. 50-52). [114] In the Insurance Trust Passing of Accounts Proceeding, the Master stated that there was no evidence that Ms. Vince was self-motivated or was acting outside of the Insurance Trust's interest (Re Vince Insurance Trust, 2016 BCSC 145 at para.

22. On appeal, Warren J. upheld the Master's decision, finding that Ms. Vince has acted in good faith and that she was not dishonest (Re Vince Insurance Trust, 2016 BCSC 1992 at paras. 43-44. However, again, these statements were made in relation to the Insurance Trust, not the Family Trust. [115] Further, there was no breach of trust claims before the court in the prior proceedings with respect to either of the Trusts. Conclusion re Issue Estoppel [116] All of the above is to say that I disagree with Ms. Vince that the above decisions "expressly or by implication necessarily" determined that: a) Ms. Vince acted honestly and in good faith, and did not benefit personally, in relation to her actions as trustee of the Family Trust, the Society, the Main Street Companies or the development as a whole; b) The Main Street Development was a prudent investment for the Family Trust; or c) There was nothing improper about Ms. Vince being a director of the Main Street Companies and the Society. [117] Again, it must be emphasized that the plaintiffs' claims against Ms. Vince are essentially that she was in breach of her duties as trustee of the Family Trust and in breach of her fiduciary obligations to the beneficiaries. The plaintiffs seek damages. [118] I agree that aspects of Ms. Vince's administration of the Family Trust were in evidence before the Court in the prior proceedings, as

was necessary to inform the issues as they related to the Insurance Trust. However, in my view, it cannot be said that those earlier decisions substantively and conclusively determined the issues raised in the Action which, as I have repeatedly said, is focussed on Ms. Vince's actions as trustee of the Family Trust, not the Insurance Trust. No express findings were made in the earlier decisions, nor can such findings can be found "by implication" in relation to the Family Trust. [119] As stated by Steeves J. (2013 BCSC 888) at para. 43, "[t]he affairs of the Family Trust or other entities are not directly in issue". [120] In conclusion, Ms. Vince has failed to establish issue estoppel arising from the prior proceedings that would bar the present Action. Cause of Action Estoppel [121] Ms. Vince has also failed to establish cause of action estoppel. [122] The above analysis under Issue Estoppel equally applies. The plaintiffs were not parties to the earlier proceedings, nor were their privies. Further, the causes of action in the prior proceedings are separate and distinct from those raised in the Action. [123] Finally, the basis of the cause of actions in the Action were not argued and could not have been argued in the prior proceedings, assuming that the parties had exercised reasonable diligence. It remains the case that the administration by Ms. Vince of the Family Trust was

not at issue in the prior proceedings. The plaintiffs, as beneficiaries of the Family Trust beneficiaries would have had no standing to participate and raise those issues. In short, the issues raised in the Action would have been irrelevant to the issues of Ms. Vince's administration of the Insurance Trust. [124] Indeed, it is difficult to see how the plaintiffs could have done so, even assuming standing. During the period of the earlier proceedings (2011-2016), Ms. Vince's administration of the Family Trust was still underway and would not conclude until her removal in May 2018. Only after her removal did the Court order a fulsome accounting by Ms. Vince of her activities from 2008-2018. Prior to that time, the reporting to the plaintiffs as beneficiaries was found by Baird J. to be wholly insufficient. In his reasons (Vince v. Vince, 2018 BCSC 1044), Baird J. stated that: [8] Ms. Vince's failure to provide such information over a number of years gives legitimate cause for the beneficiaries to be concerned. [10] In my respectful view, to the contrary, Ms. Vince was obliged to give a transparent reckoning of every step that she took in dealing with the Trust Property from start to finish, and the beneficiaries are entitled to the relief sought in their petition in light of her long-standing refusal to do so. [125] It defies common sense to suggest that the plaintiffs failed to

exercise reasonable diligence in bringing their claims forward in the 2011-2016 timeframe when they had been largely left in the dark as to Ms. Vince's actions and decisions in relation to the Family Trust. Only recently have the facts emerged as to Ms. Vince's actions and decisions, which the plaintiffs say support their claims in the Action. Abuse of Process [126] Ms. Vince's arguments based on abuse of process are equally without merit. [127] For all of the above reasons, the plaintiffs are not seeking to relitigate issues that have been decided in the prior proceedings that would have the effect of impugning the ‎authority and finality of the earlier decisions. There is no risk of inconsistent judgments. There is no misuse or abuse of this Court's procedures and process to allow the Action to continue toward a substantive determination. [128] To the contrary, the plaintiffs are only now armed with a more fulsome appreciation of Ms. Vince's administration of the Family Trust, arising from the disclosure to date (which they say in still inadequate). It would be unfair in the extreme to deny the plaintiffs their day in court to determine the issues raised in the Action at present.

PASSING OF ACCOUNTS ISSUE [129] In Ms. Vince's other notice of application filed June 20, 2024, she seeks an order dismissing the entirety of the Action, based on the principles of issue and cause of action estoppel and abuse of process, and based on the Baird Order. [130] On the basis of the plaintiffs' filing of the Family Trust Petition, and the Baird Order, Ms. Vince says that the plaintiffs have chosen their forum - a passing of accounts before the Registrar - to determine the issues and that they have no ability to commence a separate proceeding to decide the issues. Ms. Vince says that, since no appeal was filed from the Baird Order, the provisions of that Order cannot be ignored or collaterally attacked by the filing of the Action. [131] Ms. Vince emphasizes that various aspects of the Main Street development were before Baird J., which are the same as what is now raised in the ANOCC. However, I agree with the plaintiffs that, while these matters were raised in the Family Trust Petition, they were only included for the purpose of supporting their request to remove Ms. Vince as a trustee of the Family Trust. Ultimately, Ms. Vince consented to being removed as a trustee of the Family Trust. As such, in his reasons, Baird J. simply repeated the beneficiaries' outline of the facts (Vince v. Vince, 2018 BCSC 1044 at para. 5). Baird J. did not make any comment or finding on

the above noted issues, other than to comment on what was necessary to order document production by Ms. Vince and that Ms. Vince's accounts be passed. [132] Events subsequent to the Baird Order also bear on this issue: a) on March 28, 2018, Ms. Vince provided an accounting of her administration of the Family Trust for the period of June 21, 2008-December 31, 2017 (the "2018 Accounting"). The plaintiffs say that it is impossible to follow the 2018 Accounting; b) in October 2018, the plaintiffs' previous counsel brought an application for contempt against Ms. Vince, alleging that she had failed to comply with the Baird Order. Apparently, no hearing was held; c) in February 2019, the plaintiffs' counsel filed an appointment to settle the terms of the Baird Order with Ms. Vince's prior counsel. That did not happen; d) after the filing of the Action (October 2019), counsel for the parties have undertaken significant efforts to obtain document disclosure. In particular, the plaintiffs' counsel has made substantial requests for documents and clarification of the 2018 Accounting throughout 2021. As of September 2021, the plaintiffs say that Ms. Vince has failed to provide all relevant documents; and e) in the Action, the parties have also undertaken various pre-trial procedures including: Ms. Vince providing her list of documents (July 2020); the plaintiffs providing their list of

documents (January 2021); Ms. Vince demanding particulars of the ANOCC (May 2024). [133] Since the Baird Order, Ms. Vince made no effort to set down a passing of her accounts until April 24, 2024, when her current counsel advised that a passing of Ms. Vince's accounts needed to be set down and that the Baird Order needed to be settled. Discussion [134] Firstly, in my view, Ms. Vince's arguments do not engage the doctrine of res judicata (issue or cause of action estoppel). The Family Trust Petition was simply a proceeding to obtain her removal and also obtain the necessary accounting information from Ms. Vince, in her capacity as trustee of the Family Trust, in which the beneficiaries could then assess whether or not she was negligent or breached her duties as trustee. The Action was brought after having received some of the accounting documents and information ordered by Baird J. in the Family Trust Petition proceeding, on the basis that the information and documents received grounded a cause of action against Ms. Vince in, primarily, negligence, breach of trust, and breach of fiduciary duty [135] The result of the Baird Order was to confirm Ms. Vince's removal as trustee of the Family Trust and set in motion a process to have her provide an accounting and to have her accounts passed before the Registrar. [136] It is plainly obvious that Baird J. did not substantively address

the issues raised by the plaintiffs in the Family Trust Petition that were later incorporated into the Action. [137] In that vein, the issue is really one of process and procedure, in terms of how the issues in the Action should be resolved. [138] Ms. Vince argues that the plaintiffs chose the passing of accounts process that was granted under the Baird Order to address any issues relating to Ms. Vince's administration of the Family Trust. She says that the plaintiffs cannot now resile from that choice based on the limitations that are inherent in the process they chose (although it is not apparent what she says those limitations are). The plaintiffs disagree, asserting that the filing of the Action was a legitimate means by which to address the issues raised by them and that it is an efficient means to do so. [139] Ms. Vince argues that a trustee's passing of accounts--such as was ordered by Baird J.--is a normal process under R. 18-1(11)-(22) and that this process can address the issues. [140] There is no doubt that a passing of accounts before the Registrar is a normal process by which a trustee satisfies his or her duty to account: see for example, Waters, The Law of Trusts in Canada, 4th ed (Toronto: Carswell, 2012), at 1119-1124. [141] Ms. Vince refers to an English text, which suggests that an accounting in that jurisdiction allows for beneficiaries to enforce trustee's

duties and obtain reparation for harms caused by a trustee's breaches of duty: Underhill and Hayton, Law Relating to Trusts and Trustees, 19th ed (London: LexisNexis, 2016), Articles 87.3-87.9. [142] Ms. Vince also refers to various authorities that support the proposition that the Court's role on the passing of accounts is to determine if the trustee has fulfilled his or her duties as trustee properly and in accordance with legal standard for the conduct of trustees: Cleverley Estate (Re), 2000 BCSC 1454 at para. 25; Powell Estate (Re), 2002 PESCTD 81 at para. 16; and Rioux Estate, 2010 PESC 36 at para.

3. Ms. Vince also points to the decisions of Master Taylor and Warren J. (Re Vince Insurance Trust, 2016 BCSC 145 and 2016 BCSC 1992) as examples where the Court was considering whether Ms. Vince had fulfilled her obligations as trustee of the Insurance Trust. [143] As such, Ms. Vince says that the plaintiffs' claims against her can be addressed within the context of the passing of accounts before the Registrar. [144] I accept, for arguments sake, that the plaintiffs could advance their arguments, or some of them, within the context of the accounting. Needless to say, if findings of fact are made by the Registrar, consequences may follow. In Cikanek Estate (Re), 2006 ABQB 916, the court stated that if so, those breach allegations may be barred in any subsequent action on the basis of res judicata: [43] Thus it may be that where an application to pass accounts (or to determine compensation) includes specific allegations of breach of trust or breach of fiduciary duty and the judge hearing the application makes findings of fact on the issue, then the same breach allegations cannot be re-litigated at a subsequent hearing. [145] See also Eastern Trust Co. v. Busch, [1929] N.S.J. No. 10 (S.C.). [146] However, I do not read the above authorities, assuming they apply in BC, as dictating that an accounting is the sole means by which allegations, such as are raised by the plaintiffs, may

be determined. In Waters' text at p. 1389, he states: The allegation that a trustee is liable for breach of trust commonly comes before the court in the form of an action brought by one or more beneficiaries against the trustee, or it may arise out of the hearing to have the trustee's accounts passed. [147] I agree with the plaintiffs that, while a multiplicity of proceedings is generally to be avoided, in some cases, it may be appropriate to bring parallel proceedings for accounting, removal, or actions for damages or recovery of property with respect to the actions of a trustee or executor. [148] The plaintiffs point to commentary to support their point, including from Lauren Blake and Amy Francis, both of whom are now justices of this Court. [149] In Lauren Blake's "The Final Step" (Estate Litigation Basics 2016, delivered at the Continuing Legal Education Society of British Columbia, February 2016), she points out that the jurisdiction of the Registrar may not extend to a determination of certain issues. As such, she commented at p. 4.1.8: Where there are issues arising out of the fundamental validity of the underlying documents being construed, or the exercise of discretion of the trustee, it may be appropriate for the legal challenge to be brought before the passing of accounts is dealt with. [150] These same questions concerning how far a Registrar's jurisdiction goes

toward resolving issues - including determining whether a breach has occurred and whether equitable remedies can be granted - such as are raised in the Action, were discussed in Amy Francis and Claire Wilson's "Passing of Accounts: Some Practical Issues" (Estate Litigation 2011 Update) at 5.1.6-8. [151] Justice Blake's comment above was expanded in Section F, pp. 4.1.11-12 of The Final Step where she cautioned that careful consideration should be undertaken as to how to address the allegations. She also noted that it is the general practice in BC that, if an action is brought against a trustee before the passing of accounts, the passing of accounts is postponed pending the resolution of that action. See for example, Nordquist Estate, 1997 CanLII 1661 (BC SC), [1997] B.C.J. No. 2898; and Re Barbieri Estate, 2022 BCSC 533 at paras. 19-21. [152] In addition, Francis/Wilson at p. 5.1.6 of their paper agree as to the general practice in staying a passing accounts in the face of an action brought to address issues such as are raised in the Action. They also state: The fact that a beneficiary may have a cause of action against the executor sometimes doesn't come to light until the accounts of the executor are produced in the course of the passing of accounts. In fact, because of the limited nature of discovery prior to court passings, it is not unusual for a beneficiary to only

discover that he or she has a viable cause of action against the executor in the midst of the Registrar's hearing. This leaves the parties in a procedural quandary as to the best forum to raise issues such as resulting trust and restitution, and how to handle the inevitable overlap that will occur between the Registrar's hearing and the pending or future action brought by the beneficiary against the executor. [153] In these cases, the authors note at p. 5.1.7 that the beneficiary can either ask the Registrar to seek the opinion of the court on the issue pursuant to Rule 18-1(10) or, if a pending action already exists against the executor, adjourn the Registrar's hearing pending the outcome of the action. [154] Therefore, in estate matters, where serious allegations are raised, this Court has routinely determined that the determination of the issues is best left to be resolved by the court within the normal litigation process, and not before the Registrar in a passing of accounts. [155] In Britton v. Mackenzie Estate, 2011 BCSC 1554, Justice Savage, as he then was, came to this same conclusion: [‎9] In this case I am advised that although there is a hot contest over what the executor's fees may ‎‎be, ‎that the fees that have been exacted have in fact been repaid. I am also advised by ‎counsel that ‎they ‎intend to file accounts with the affidavit of the executor attached no

later ‎than November 1st of ‎this year.‎ ‎[10] I am prepared in this matter to make an order that such in fact do occur.‎ ‎[11] That said, in my opinion, in light of the seriousness of the allegations and the fact that they ‎‎overlap ‎with issues that would be before the registrar, namely whether it is appropriate ‎that fees be ‎exacted in ‎certain circumstances, in respect of certain things that have been ‎done, it seems to me ‎that the ‎appropriate forum for those proceedings, and for ‎determinations of that nature, is the action ‎and not an ‎application to pass accounts before ‎the registrar.‎ [156] ‎‎This approach is consistent with other contexts. In Davidson & Co. v. Dobranski, 1999 CanLII 5516 (BCSC), [1999] B.C.J. No. 640 at paras. 5-6, Master Patterson stated that it has long been the practice in BC that when a review ‎of a solicitor's account and an action are both before the courts, and there are allegations of ‎negligence, the review is adjourned until the ‎action is concluded or dismissed. See also Roberts & Baker v. Kemp, 2003 BCSC 1847 at para. 18 and Tong v. Canofari, 2023 BCSC 1083 at para. 45. [157] That postponement of the passing of accounts is effectively what has occurred here, where the passing of accounts has not been scheduled in the face of all parties conducting the Action, including completing various pre-trial procedures. [158] In light of the above

practice and procedural concerns, other BC commentary also endorses the option, if not often the necessity, of a beneficiary commencing a separate action to decide these types of issue--such as breach of trust--in a parallel proceeding and before the passing of accounts before a Registrar, whose jurisdiction is limited. In Estate Disputes in British Columbia: A Litigator's Guide (Vancouver: Continuing Legal Education Society of ‎British Columbia, 2024) (loose-leaf revision 2024), §19.25, the authors state: Typically, beneficiaries will pursue a separate action where they have a potential to claim to obtain an order declaring that certain assets ought to form part of the estate. Beneficiaries also commence claims against trustees personally (i.e. breach of trust claims) in which they allege that the trustee failed to collect assets of the estate or has put the asset to their own use and benefit. A registrar's hearing is not the proper forum to pursue such claims in full. The beneficiaries require the full discovery rights afforded by the Supreme Court Civil Rules where an action is commenced. By the same token, a trustee will want to use all the protection afforded by the Supreme Court Civil Rules in their defence. [Emphasis added.] [159] In the cases cited above, while discussing the order in which an action in negligence, or breach of trust, and a passing of accounts, ought to

proceed, the court does not suggest that it is improper to have brought an action in negligence (or breach of trust/duty), while a passing of accounts procedure exists. [160] In all of the present circumstances, I see no reason why the plaintiffs should be foreclosed from pursuing the Action to a determination of the issues. My reasons include: a) I do not read Baird J.'s reasons as foreclosing the plaintiffs from bringing the Action. I do not agree that the plaintiffs "chose" the passing of accounts for the determination of the issues in the Action by reason of the Family Trust Petition. The focus of the Family Trust petition proceeding was not to decide the issues raised by the plaintiffs, but rather remove Ms. Vince as trustee and require her to begin a proper accounting and pass her accounts; b) At present, Ms. Vince has not scheduled a reference to a Registrar for her accounts for her administration of the Family Trust, despite the Baird Order having been pronounced years ago; c) I see little prospect that the Registrar will have the jurisdiction to decide the issues raised in the Action in any event and grant whatever remedies may arise; d) Ms. Vince has yet to even provide the fulsome accounting as ordered by Baird J. It remains the case that proper disclosure may yet disclose matters that the plaintiffs wish to have addressed in the Action; and e) The issues raised in

the Action are such that both parties should be afforded the protections of the pre-trial procedures that apply in normal litigation. In fact, the parties have been pursuing just that over the last four years while the Action has been underway, including document discovery. [161] Finally, I see no basis for Ms. Vince to argue that it is an abuse of process to allow the Action to proceed rather than address the issues in the passing of accounts. In my view, there are both practical and legal reasons why the issues are best addressed within the context of the Action, as I have noted above.

CONCLUSION [162] Ms. Vince's two applications are dismissed. [163] The plaintiffs are awarded their costs of these applications against Ms. Vince personally, in any event of the cause, although those costs are not payable forthwith. "Fitzpatrick J."