Brenner v. Brenner, 2010 BCCA 553

• Judge: Huddart, Hall and Hinkson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 26, 2010
• Jurisdiction: British Columbia
• Citations: 2010 BCCA 553;(2010), 297 B.C.A.C. 135 (CA)

Brenner v. Brenner (2010), 297 B.C.A.C. 135 (CA);

    504 W.A.C. 135

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. DE.045

Carol Elizabeth Brenner (appellant/plaintiff) v. Shannon Lea Brenner (respondent/defendant)

(CA038074; 2010 BCCA 553)

Indexed As: Brenner v. Brenner

British Columbia Court of Appeal

Huddart, Hall and Hinkson, JJ.A.

December 6, 2010.

Summary:

In 1995, the plaintiff brought proceedings against her daughter (the defendant), seeking a declaration that the defendant held certain real property in trust for the plaintiff and an order transferring title to the property to the plaintiff. In 2009, the defendant applied to dismiss the action for want of prosecution.

The British Columbia Supreme Court, in a decision reported at [2010] B.C.T.C. Uned. 436, dismissed the action for want of prosecution. The plaintiff sought directions on whether leave to appeal was required and, if it was, she sought an extension of time and leave to appeal.

The British Columbia Court of Appeal, per Chiasson, J.A., in a decision reported at (2010), 291 B.C.A.C. 258; 492 W.A.C. 258, extended the time for bringing the applications for directions and leave to appeal. The court held that leave to appeal was required and granted leave to appeal.

The British Columbia Court of Appeal allowed the appeal on the ground that the chambers judge erred in determining that the applicable limitation period relating to the plaintiff's claim was 10 years pursuant to s. 3(3)(d) of the Limitation Act. The court directed that the matter be remitted to the Supreme Court for reconsideration based on the application of s. 3(4)(j) as the appropriate section of the Limitation Act.

Limitation of Actions - Topic 2

General principles - Purpose of limitation provisions - [See Limitation of Actions - Topic 8 ].

Limitation of Actions - Topic 8

General principles - Interpretation of limitation provisions - In 1995, the plaintiff brought proceedings against her daughter (the defendant), seeking a declaration that the defendant held certain real property in trust for the plaintiff and an order transferring title to the property to the plaintiff - In 2009, the defendant applied to dismiss the action for want of prosecution - The chambers judge granted the application - The chambers judge found, inter alia, that the applicable limitation period was 10 years under s. 3(3)(d) of the Limitation Act as the plaintiff sought to recover trust property - The plaintiff appealed - The plaintiff argued that her claim was not subject to a limitation period in s. 3(4) of the Limitation Act because she had been living on the property since 2002, and was in possession of it - The British Columbia Court of Appeal allowed the appeal on the ground that the chambers judge erred in determining that the applicable limitation period was 10 years pursuant to s. 3(3)(d) of the Act - The court held that s. 3(4)(j) of the Act was the applicable provision - Pursuant to s. 3(4)(j), an action "for the title to property or for a declaration about the title to property by any person in possession of that property" was "not governed by a limitation period and may be brought at any time" - The court stated that "an action for recovery of trust property falling under s. 3(3)(d) could also include an action for recovery of personal property, whereas an action under s. 3(4)(j) must be for title to real property only. Therefore, based on the plain meaning of the provisions alone, I conclude that s. 3(4)(j) is the more specific section of the Limitation Act and should prevail over s. 3(3)(d) in situations where they conflict" - The structure of the Act, the legislative history and the purposes of the Act supported the interpretation that s. 3(4)(j) should govern where it was in conflict with s. 3(3)(d) - See paragraphs 17 to 59.

Limitation of Actions - Topic 13

General principles - Conflict between limitation periods - [See Limitation of Actions - Topic 8 ].

Limitation of Actions - Topic 4143

Recovery of land - Application of limitation period - Action for title to property by person in possession - [See Limitation of Actions - Topic 8 ].

Limitation of Actions - Topic 6010

Trusts - General - Recovery of trust property - [See Limitation of Actions - Topic 8 ].

Practice - Topic 5360.1

Dismissal of action - Grounds - General and want of prosecution - Excuse for delay - In 1995, the plaintiff brought proceedings against her daughter (the defendant), seeking a declaration that the defendant held certain real property in trust for the plaintiff and an order transferring title to the property to the plaintiff - In 2009, the defendant applied to dismiss the action for want of prosecution - The chambers judge granted the application - The plaintiff appealed - The plaintiff argued that the delay was not tactical and was excusable as it was not unreasonable in the circumstances - The plaintiff argued that the mental and emotional distress associated with litigation against her daughter was such that she reasonably avoided pressing her action and second, that it was difficult for her to contact the defendant for extended periods - The British Columbia Court of Appeal rejected this ground of appeal - The first explanation was rejected as an unreasonable excuse by the chambers judge because the plaintiff had already taken the initial step of starting the action against her daughter and had filed material for a summary trial application in 1996 - There was no error in her rejection of that excuse or the second explanation given - The second explanation ignored the fact that the defendant was, at all times, represented by counsel who could have been served with any material that the plaintiff wished to rely on in her action - See paragraphs 10 to 11.

Practice - Topic 5362

Dismissal of action - Grounds - General and want of prosecution - Prejudice to defendant - [See Practice - Topic 5362.1 ].

Practice - Topic 5362.1

Dismissal of action - Grounds - General and want of prosecution - Inference of prejudice (incl. rebuttal of) - In 1995, the plaintiff brought proceedings against her daughter (the defendant), seeking a declaration that the defendant held certain real property in trust for the plaintiff and an order transferring title to the property to the plaintiff - In 2009, the defendant applied to dismiss the action for want of prosecution - The chambers judge granted the application - The plaintiff appealed - The plaintiff argued that the chambers judge erred in finding that the defendant experienced serious prejudice as a result of the delay - The British Columbia Court of Appeal rejected this ground of appeal - The chambers judge relied on the reasoning in Williamson v. Toyota Canada Inc. (2002 BCSC) that when the overall circumstances of a case included a lengthy delay, the court could infer that witnesses would no longer be able to remember the details of the events with any accuracy - The chambers judge was entitled to draw such an inference in this case - However, such an inference was of limited importance in the context of this case - The defendant swore that she had no recollection of signing a trust document in 1981, and the lawyer who was said to have witnessed the signing of the document swore an affidavit in 1996 stating that he did not recall the signing of the document - There was no identification to the chambers judge of any witness who might be able to offer evidence about the circumstances that led to the signing of the trust document - There was no palpable or over-riding error with respect to the chambers judge's finding that the defendant had experienced serious prejudice as a result of the delay - See paragraphs 12 to 16.

Statutes - Topic 501

Interpretation - General principles - Purpose of legislation - Duty to promote object of statute - [See Limitation of Actions - Topic 8 ].

Statutes - Topic 1641

Interpretation - Extrinsic aids - Legislative history - General - [See Limitation of Actions - Topic 8 ].

Statutes - Topic 2603

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Intention from whole of section or statute - [See Limitation of Actions - Topic 8 ].

Statutes - Topic 2607

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Special provision versus general provision - [See Limitation of Actions - Topic 8 ].

Cases Noticed:

PMC Builders & Developers Ltd. v. County West Construction Ltd. - see 0690860 Manitoba Ltd. v. County West Construction Ltd. et al.

0690860 Manitoba Ltd. v. County West Construction Ltd. et al. (2010), 280 B.C.A.C. 26; 474 W.A.C. 26; 2009 BCCA 535; 2010 BCCA 96, refd to. [para. 6].

Vancouver Sun et al. v. Canada (Attorney General) et al. (2007), 368 N.R. 112; 368 B.C.A.C. 1; 409 W.A.C. 1; 2007 SCC 43, refd to. [para. 8].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al. (2003), 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 8].

Hanna's Construction Services Ltd. v. Blue River III Inc. (2006), 224 B.C.A.C. 128; 370 W.A.C. 128; 2006 BCCA 142, refd to. [para. 8].

Tundra Helicopters Ltd. v. Allison Gas Turbine - see Tundra Helicopters Ltd. et al. v. General Motors Corp. et al.

Tundra Helicopters Ltd. et al. v. General Motors Corp. et al. (2002), 164 B.C.A.C. 289; 268 W.A.C. 289; 2002 BCCA 145, refd to. [para. 13].

Rhyolite Resources Inc. v. CanQuest Resource Corp. et al. (1999), 117 B.C.A.C. 259; 191 W.A.C. 259; 1999 BCCA 36, refd to. [para. 13].

Williamson v. Toyota Canada Inc. et al., [2002] B.C.T.C. 421; 2002 BCSC 421, refd to. [para. 14].

Thomson v. Eadie et al. (2007), 247 B.C.A.C. 298; 409 W.A.C. 298; 2007 BCCA 524, refd to. [para. 21].

Novak et al. v. Bond, [1999] 1 S.C.R. 808; 239 N.R. 134; 122 B.C.A.C. 161; 200 W.A.C. 161, refd to. [para. 25].

Sun-Rype Products Ltd. et al. v. Archer Daniels Midland Co. et al. (2008), 257 B.C.A.C. 218; 432 W.A.C. 218; 2008 BCCA 278, refd to. [para. 26].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 27].

R. v. L.T.H., [2008] 2 S.C.R. 739; 379 N.R. 247; 268 N.S.R.(2d) 200; 857 A.P.R. 200; 2008 SCC 49, refd to. [para. 36].

Boleak v. Boleak (1999), 133 B.C.A.C. 169; 217 W.A.C. 169; 1999 BCCA 776, refd to. [para. 37].

Rankin v. Irving (1983), 47 B.C.L.R. 242 (S.C.), dist. [para. 38].

Bacic v. Bacic Estate, [2010] B.C.T.C. Uned. 728; 2010 BCSC 728, disagreed with [para. 40].

Azeri et al. v. Esmati-Seifabad (2009), 268 B.C.A.C. 262; 452 W.A.C. 262; 2009 BCCA 133, refd to. [para. 60].

Jens v. Jens (2008), 260 B.C.A.C. 185; 439 W.A.C. 185; 2008 BCCA 392, refd to. [para. 65].

Statutes Noticed:

Limitation Act, R.S.B.C. 1996, c. 266, sect. 3(3)(c), sect. 3(3)(d), sect. 3(4)(j), sect. 3(5) [para. 17].

Authors and Works Noticed:

British Columbia, Law Reform Commission, Report on Limitations: Part 2 - General (1974), generally [para. 29]; pp. 54 to 75 [para. 31]; 56 [para. 32]; 63 [para. 33]; 75 [para. 34].

Driedger - see Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes.

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), p. 168 [para. 36].

Counsel:

Eamon Murphy, for the appellant;

Sherry D. Wiebe, for the respondent.

This appeal was heard on October 26, 2010, at Victoria, B.C., before Huddart, Hall and Hinkson, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Hinkson, J.A., on December 6, 2010.