MCLELLAND v MCLELLAND, 2021 ABCA 102
O'FERRALL, WAKELING AND CRIGHTON JJA
2.11: Litigation representative required
2.15: Court appointment in absence of self-appointment
2.16: Court-appointed litigation representatives in limited cases
2.21: Litigation representative: termination, replacement, terms and conditions
3.68: Court options to deal with significant deficiencies
14.32: Oral argument
This Appeal was with respect to the allegedly gratuitous transfers of three condominium properties by a father to two of his children shortly before the father’s death. The Appeal was heard despite that the Respondent (the third child) was absent. The Court confirmed that the Respondent had refused to provide any contact information and had made no effort to contact the Registry or Counsel to the Appellant with respect to the hearing of the Appeal, and so the hearing proceeded pursuant to Rule 14.32(3).
The Respondent’s claim, which was brought in Alberta after already having commenced an Action in British Columbia, related to the transfer of the condominiums and sought remedies for undue influence, lack of testator capacity, and unjust enrichment. The Respondent also sought to be appointed as a litigation representative to bring the claim on behalf of the father’s estate (the “Estate”), and sought litigation funding from the Estate. The Case Management Judge refused to strike the Respondent’s claim as an abuse of process, named the Respondent as the administrator of the Estate ad litem to continue with the Alberta Action, and directed the executor of the Estate to fund the Respondent’s advancing of the Alberta Action. The Appellant, one of the three children that the condominium properties had been transferred to, appealed this Decision.
With respect to the abuse of process question, the Court observed that the power granted by Rule 3.68(2)(d) to strike a claim as an abuse of process is a flexible power that is not confined to specific criteria. The Court held that a Judge’s determination on whether there is or is not an abuse of process is a discretionary finding based on a factual inquiry, and this finding is owed deference and should not be overturned absent palpable and overriding error. However, no deference will be afforded by an Appeal Court where a Judge has “clearly misdirected” themselves or if the Decision is “so clearly wrong as to amount to an injustice.” The Court of Appeal held that it was an abuse of process to permit the Respondent to advance the Alberta claim after the British Columbia Courts had been properly seized with the administration and distribution of the Estate.
The Court of Appeal also ruled that appointing the Respondent as the Estate’s litigation representative in order to advance the Respondent’s own Action on behalf of the Estate was not appropriate under Rule 2.16(3). This was so for two reasons: (1) there was already an Estate representative in British Columbia where the Estate was being administered; and (2) because of the high level of animosity between the parties, who were both beneficiaries of the Estate.
The Court of Appeal therefore struck the Alberta Action as an abuse of process and vacated the Respondent’s appointment as litigation representative of the Estate.
Justice O’Ferrall, in a dissent opinion, would have dismissed the Appeal. His Lordship observed that the Case Management Judge was not persuaded that the claim had no merit, and therefore refused to strike it. His Lordship also observed that the Alberta Action was not identical to the Action advanced in British Columbia. Justice O’Ferrall stated that these findings by the Case Management Judge were owed deference and should not have been interfered with.
Justice O’Ferrall also would have allowed the Case Management Judge’s appointment of the Respondent as litigation representative. O’Ferrall J.A. stated that the Case Management Judge adhered to the procedure set out in Rules 2.11 and 2.15, and that the Court is not precluded from appointing a person who also may have a personal interest in the outcome of the litigation. His Lordship also noted that Rule 2.21 provides further protections against a litigation representative’s potential misconduct.View CanLII Details