Precision in Pleadings

Understanding Pleadings in BC Litigation

Pleadings, the documents filed by litigants setting out their case or their defence, are critically important aspects of litigation. Pleadings are designed to tell the Court the nature of the case being advanced by the plaintiff and the defences intended to be used by the defendants.

Cases involving the BC Wills, Estates and  Succession Act, are no exceptions and it is crucial that pleading are both accurate and concise to maximize the chances of success at trial.

In the decision of MacLean Estate v. Arsenault, 2016 BCSC 1120, the Court was asked to consider whether the Court could strike a portion of pleadings under the Supreme Court Civil Rules on the basis of a limitation defence that was not plead. Meaning, the Court was being asked to consider a limitations issue that had not been set out in the pleadings.  In dismissing the Application before the Court, Master Bouck made the following comments:

[22]  While I am not able to say conclusively that the application of s. 61 must be decided at a trial, I have decided that the plaintiff’s application as presently framed must be dismissed. That is because the plaintiff is relying on a defence that has yet to be pled — or at least that pleading was not put before the court. As determined by our Court of  Appeal, reliance upon a statutory limitation must be pled for the issue to even arise in an action: Fuoco Estate v. Kamloops (City), 2001 BCCA 325 (CanLII) at para. 15.

[23] It is acknowledged that both Fuoco and the later decision of Johnston v. Aitken Estate, 2014 BCSC 1187 (CanLII), say that a limitation argument is not a bar to application under Rule 9-5. However, neither these two nor any other authorities cited waive the requirement of a plea which makes the limitation period an issue in the proceeding. The court only adjudicates on issues raised in the pleadings. A claim to which no defence is pled is not bound to fail; to the contrary, it is bound to succeed.

Related BC Wills, Estate Planning, & Litigation Posts

Contact the Kushner Law Group

If you have a question about estate litigation, contact the Kushner Law Group today to schedule a consultation.

To  schedule a consultation, call our Vancouver law firm at 604-629-0432 or contact us online.



Similar Posts

Comments are closed.