Ewachniuk Estate v. Ewachniuk, (2011) 313 B.C.A.C. 287 (CA)

• Judge: Finch, C.J.B.C., Ryan and Saunders, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 03, 2011
• Jurisdiction: British Columbia
• Citations: (2011), 313 B.C.A.C. 287 (CA);2011 BCCA 510

Ewachniuk Estate v. Ewachniuk (2011), 313 B.C.A.C. 287 (CA);

    533 W.A.C. 287

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. DE.021

Norman Ian Cameron, in his capacity as Administrator of the Estate of Sophia Ewachniuk, Deceased (respondent/plaintiff) v. Alexander Theodore Ewachniuk (appellant/defendant)

(CA038982; 2011 BCCA 510)

Indexed As: Ewachniuk Estate v. Ewachniuk

British Columbia Court of Appeal

Finch, C.J.B.C., Ryan and Saunders, JJ.A.

December 14, 2011.

Summary:

A promissory note dated December 23, 1980, provided that the defendant, the payees' son, promised to pay $750,000 to Roman and Sophia Ewachniuk "payable one (1) year after demand, without interest". Roman and Sophia died without demanding payment. On November 29, 2008, the administrator of Sophia's estate (plaintiff) demanded payment from the defendant. On July 23, 2009, the plaintiff commenced an action to recover the sum owing under the note. The defendant claimed that the action was barred by the six year limitation period in s. 3(5) of the Limitation Act.

The British Columbia Supreme Court, in a decision reported [2011] B.C.T.C. Uned. 395, held that the action was not barred by s. 3(5). The trial judge held that this was a "delayed-demand" promissory note, that the right to sue on it did not arise until one year after demand for its payment had been made. Therefore, the six-year limitation period only commenced to run on November 30, 2009, one year after the plaintiff made his demand on November 29, 2008. Thus the action was commenced within the limitation period. The defendant appealed.

The British Columbia Court of Appeal dismissed the appeal.

Courts - Topic 90.3

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Prior wrong decision and whether error should be perpetuated (communis error facit jus) - The British Columbia Court of Appeal, in discussing whether it would overrule wrongly decided cases, referred to the following articulation of the maxim "communis error facit jus" found in Laursen v. McKinnon (BCCA 1913): "...To say that a Court ought not to perpetuate error is to give voice to a very pleasing and right-sounding abstraction. The Court ought not to perpetuate error, but this maxim is controlled by a very salutory rule that constructions which have long been accepted, though their correctness may be open to doubt, should not, save possibly by a higher Court, be disturbed to the confusion of those who are accustomed to rely upon such constructions. " - See paragraph 97 - The court noted that Laursen was applied in Sale v. East Kootenay Power Co. (BCCA 1931), wherein it was stated: "... [I]t is better to allow a decision which might be admitted to be contrary to law at the time when given, to stand, since it has been woven into the law of the land, in some cases for centuries, and it would be a great reversal of things, almost revolutionary, to set aside that law so well understood" - See paragraph 98.

Courts - Topic 90.3

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Prior wrong decision and whether error should be perpetuated (communis error facit jus) - A trial judge, considering herself bound by Zeitler v. Zeitler Estate (BCSC 2008), held that the limitation period respecting a delayed-demand promissory note began to run when payment was demanded - On appeal, at issue was whether Zeitler was wrongly decided because the judge was misled by passages from respected and widely-cited texts (Mews, Byles and Chitty) which in turn relied upon two old English cases (Thorpe (1826) and Holmes (1810)) (i.e., whether those cases were wrongly decided, wrongly summarized by commentators, or were otherwise inapplicable) - The British Columbia Court of Appeal held that Thorpe and Homes supported the statements in the texts, which, while non-binding, were nonetheless authoritative - Furthermore, the court, applying the maxim "communis error facit jus", held that it would not have overruled those cases even if it had concluded that they were wrongly decided - Regardless of whether the commentators had rightly cited and distilled Thorpe and Holmes, they were cases of long-standing principle that had gained a place of authority in the jurisprudence - The facts of the present case did not justify altering the course of 200 years of jurisprudence to the detriment of those who had relied upon it - See paragraphs 33 to 99.

Limitation of Actions - Topic 2406

Actions in contract - Actions on negotiable instruments - Demand notes (incl. delayed-demand notes) - A promissory note dated December 23, 1980, provided that the defendant, the payees' son, promised to pay $750,000 to Roman and Sophia Ewachniuk "payable one (1) year after demand, without interest" - Roman and Sophia died without demanding payment - On November 29, 2008, the administrator of Sophia's estate (plaintiff) demanded payment from the defendant - On July 23, 2009, the plaintiff commenced an action to recover the sum owing under the note - An issue arose as to whether the action was barred by s. 3(5) of the Limitation Act: "Any other action not specifically provided for in this Act or any other Act may not be brought after the expiration of 6 years after the date on which the right to do so arose" - The trial judge held that this was a "delayed-demand" promissory note and that the right to sue on it did not arise until one year after demand for its payment had been made - The six-year limitation period only commenced to run on November 30, 2009, one year after the plaintiff made his demand on November 29, 2008 - Thus the action was commenced within the limitation period - The defendant appealed - The British Columbia Court of Appeal dismissed the appeal.

Negotiable Instruments - Topic 8063

Promissory notes - Presentment for payment - Time for - Demand note - [See second Courts - Topic 90.3 and Limitation of Actions - Topic 2406 ].

Cases Noticed:

Zeitler v. Zeitler Estate, [2008] B.C.T.C. Uned. 434; 2008 BCSC 775, appld. [paras. 14, 91].

Zeitler v. Zeitler Estate (2010), 286 B.C.A.C. 231; 484 W.A.C. 231; 319 D.L.R.(4th) 106; 2010 BCCA 216, refd to. [para. 15].

Berry v. Page (1989), 38 B.C.L.R.(2d) 244 (C.A.), refd to. [para. 17].

Clayton v. Gosling (1826), 5 B. & Cress. 360; 108 E.R. 134 (K.B.), refd to. [para. 40].

Alexander v. Thomas (1851), 16 Q.B. 333; 117 E.R. 906, refd to. [para. 40].

Price v. Taylor and Fisher (1860), 5 H. & N. 540; 157 E.R. 1294 (Ex. Ct.), refd to. [para. 40].

Elliot v. Beech (1886), 3 Man.R. 213 (C.A.), refd to. [para. 40].

Sparham v. Carley (1892), 8 Man.R. 246 (C.A.), refd to. [para. 40].

FWC Holdings Ltd. et al. v. Virtue Films Inc. et al., [2009] B.C.T.C. Uned. 1563; 2009 BCSC 1563, refd to. [para. 46].

Thorpe v. Booth (1826) Ry. & M. 388, appld. [paras. 52, 94].

Holmes v. Kerrison (1810), 2 Taunt. 323, appld. [paras. 53, 94].

Rutherford, Re (1880), 14 Ch. D. 687, refd to. [para. 64].

Hix et al. v. Ewachniuk Estate (2010), 289 B.C.A.C. 169; 489 W.A.C. 169; 2010 BCCA 317, refd to. [para. 79].

Zeitler v. Zeitler Estate, [2009] B.C.T.C. Uned. 500; 2009 BCSC 500, refd to. [para. 87].

Hansard Spruce Mills Ltd., Re, [1954] 4 D.L.R. 590 (B.C.S.C.), refd to. [para. 92].

Laursen v. McKinnon (1913), 18 B.C.R. 10 (C.A.), appld. [para. 97].

Sale v. East Kootenay Power Co. (1931), 43 B.C.R. 336 (C.A.), refd to. [para. 99].

Statutes Noticed:

Limitation Act, R.S.B.C. 1996, c. 266, sect. 3(5) [para. 2].

Authors and Works Noticed:

Byles on Bills of Exchange (15th Ed. 1891), generally [para. 52].

Chitty on Contracts (29th Ed. 2004), vol. 1, pp. 1587, 1588 [para. 39].

Crawford, Bradley, Payment, Clearing and Settlement in Canada (2002), vol. 2, p. 1088 [para. 39].

Mew, Graeme, The Law of Limitations (2nd Ed. 2004), p. 175 [para. 39].

Counsel:

T.R. Berger, Q.C., and H.I. Schachter, for the appellant;

G.E. Sourisseau and R. Robertson, for the respondent.

This appeal was heard in Vancouver, British Columbia on October 3, 2011, by Finch, C.J.B.C., Ryan and Saunders, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered on December 14, 2011, including the following opinions:

Finch, C.J.B.C. - see paragraphs 1 to 90;

Ryan, J.A. (Saunders, J.A., concurring), concurring in the result - see paragraphs 92 to 100.